The introduction of the new duty

The public sector equality duty replaces and expands three earlier duties, which related to race, sex and disability: s.71 of the Race Relations Act 1976, introduced by the Race Relations (Amendment) Act 2000 from April 2001; s.76A of the Sex Discrimination Act, introduced December 2006; and s.49A of the Disability Discrimination Act 1995, April 2007.

The race duty was the first, introduced following the MacPherson Report into the death of black teenager Stephen Lawrence, which concluded: `It is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging sections of our communities.'

These new pre-emptive duties to give `due regard' to the need to promote equality-buttressed individual statutory remedies for discrimination by imposing positive public duties on public authorities to think, adequately and proportionately, about mainstreaming equality at a stage when such thought may help them from inadvertently discriminating. Moreover, the public sector equality duties required public authorities not only to `guard against' unlawful discrimination, but also to give due regard to statutory equality `needs' to promote equality of opportunity and good relations between members of different groups.

In other words, avoiding unlawful discrimination was no longer enough. Public authorities were now under a public law duty to give serious consideration to how they could actively promote equality. Giving judgment in Elias v Secretary of State for Defence (the first case on the race duty), Arden LJ said that it was `not possible to take the view that the secretary of state's non-compliance with [the race equality duty] was not a very important matter'. The case law on these duties will continue to be relevant in interpreting the new PSED.

Scope of the new single duty

The new PSED in s.149 EqA builds upon and consolidates the three earlier race, sex and disability duties. It applies across all protected characteristics and thus the duty to due regard to the statutory equality needs now extends to age, religion or belief and sexual orientation, which were not previously covered (although curiously s.149(1)(b) and (c) do not apply to marriage and civil partnership). The new PSED is broader in scope, requiring public authorities to give due regard to the need to `advance' rather than merely `promote' equality of opportunity. It also defines the statutory equality needs in helpful detail.

The PSED requires public authorities, in the performance of all their functions (save for the exceptions listed in schedule 18 to the EqA, which are not material for present purposes), to:

• eliminate discrimination, harassment, victimisation and other conduct that is prohibited by the EqA 2010: s149(1)(a)
• advance equality of opportunity between persons who share a relevant protected characteristic and those who do not: s.149(1)(b), including, in particular, the need to:

- remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected with that characteristic

- take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it

- encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low

• foster good relations between persons who share a relevant protected characteristic and those not doing so: s.149(1)(c) including, in particular, the need to:

- tackle prejudice and

- promote understanding.

The Government Equalities Office described the main purpose of the new single PSED as being `to bring about a culture change so that promoting equality becomes part of public bodies' core business'.

The Equality and Human Rights Commission has issued non-statutory guidance on the PSED, which is available on its website. A statutory code of practice, which can be used as evidence in legal proceedings, is due to be published later this year. Departure from this guidance without `clear and convincing' reasons may evidence breach of the PSED: R (Brown) v Secretary of State for Work & Pensions.

What the duties require: case law

The extensive body of case law relating to the predecessor race, sex and disability duties will continue to be relevant in considering the requirements of the new single PSED. That case law emphasises that giving `due regard' to the need to promote equality of opportunity (and the fostering of good race relations) will assist, but is not the same thing as, avoiding unlawful discrimination: R (Baker) v Secretary of State for Communities and Local Government.

The requirements of the PSED were summarised by Wyn Williams J in R (EHRC) v Secretary of State for the Home Department:

`The duty to have due regard is a duty which is mandatory; it is also an important duty and one which must be fulfilled prior to the adoption or implementation of the decision, function or policy in question. The duty requires the decision maker to embark upon a sufficient and proper decision-making process so as to discharge the duty with an open mind. The question in every case is whether the decision maker has in substance had due regard to the relevant statutory need.'

The Divisional Court in Brown set out the principles in the previous case law as follows:

• the public authority must be aware of its duty to have `due regard' to the statutory equality needs. An incomplete or erroneous appreciation of the duty will mean that `due regard' has not been given
• the duty must be fulfilled before and at the time that the particular policy that will or might have a discriminatory effect is being considered, not as a rearguard action or post-hoc justification
• the duty must be exercised in substance, with rigour and with and open mind. It is not a question of 'ticking boxes'. The existence of `an' equality impact assessment (EIA) does not demonstrate compliance with the duty if it is `a mere exercise in formulaic machinery'
• the duty is non-delegable
• the duty is continuing
• it is good practice for those exercising public functions in public authorities to keep adequate records. Courts are not generally prepared to accept that there has been proper compliance with the PSED in the absence of satisfactory contemporaneous documentation. An inadequate analysis in an EIA may itself evidence breach of the PSED.

PSEDs are relevant in all circumstances. According to R(Rahman) v Birmingham County Council :

`Even where the context of decision making is financial resources on a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in these straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.'

What this means for employment lawyers?

The PSED does not create a new private law action for damages: see s.156 EqA. Thus breaches of the PSED can only be directly challenged by way of public law judicial review proceedings or by EHRC compliance action.

However, failure to comply with the PSED may well be relevant to a private law cause of action. For example, a public body which has not had `due regard' to equality in formulating a policy may find it difficult to adduce evidence of justification if it turns out to constitute indirect discrimination. If it has not considered the discriminatory impacts of its policy, it is self-evidently unlikely to be able to persuade a court that its actions were a proportionate means of achieving a legitimate aim (see, for example, Elias, R (Watkins-Singh) v Governing Body of Aberdare Girls' School and R (E) v Governing Body of JFS). It is likely that arguments concerning breach of the PSED may be brought in employment tribunals to support indirect discrimination arguments.

Moreover, public authorities - including private bodies carrying out public functions - are likely to face challenges by way of judicial review (from trade unions or others with sufficient interest) if they introduce new policies without giving due regard to the statutory equality needs. This is considered in further detail below.

The reach of the PSED: `public authorities'

The obligations under the PSED fall on public authorities: s.149(1) EqA. So far, cases on PSEDs have only been brought against `pure' public authorities: government departments, regulators, local authorities and school governing bodies. However, the reach of the PSED goes beyond these bodies. It is not yet certain how far they may affect employers that are not obviously in the state sector but which may be regarded as `public authorities' for the purposes of the EqA.

For the purposes of the EqA, there are two sorts of public auth-ority. First, a public authority is a person who is specified in schedule 19: s160(1), the `obvious' public bodies. These must comply with the PSED in the performance of all their functions, public or private, including employment.The second kind is a person who is not a public authority but who exercises public functions. Such a body must comply with the PSED but only in relation to those public functions, not in relation also to its private law obligations. Private employers that provide services to the public sector need to consider whether they are caught by the PSED in relation to any of their employment functions. Is employment for the performance of a public function itself a public function?

In general, the answer is probably not, but those with close dealings with the public sector should consider whether they are in an exceptional situation such that the PSEDs do apply to their employment relationships. A public function is `a function that is a function of a public nature for the purposes of the Human Rights Act 1998'. This concept is difficult and controversial (see YL v Birmingham City Council). But in the absence of some unusual feature, employment is likely to be regarded a function of a private nature, even if the employer is also performing functions of a public nature (such as running a private prison). See, for example, R (Walsh) v East Berkshire HA and McLaren v Home Office.

However, in McClaren, Lord Woolf envisaged situations where an employee of a public body could seek judicial review if public law elements predominated. In such circumstances, employment functions might be regarded as `of a public nature'. For example, R (Shoesmith) v Ofsted was a recent successful challenge to the fairness of the way an employee was treated by a public body, brought by way of judicial review rather than a private law action.

Duties on public authorities as an employer

The PSED imposes a duty of consideration (`due regard') rather than a duty to take any practical steps. However, the sorts of steps that a public authority could be expected to consider taking to comply with the PSED in its capacity as employer are:

• duty to eliminate discrimination:

- monitoring the workforce in order to be able to identify whether policies constitute indirect discrimination

- training to prevent harassment

- ensuring redundancy criteria are not indirectly discriminatory on protected grounds

- inviting employees' partners (regardless of gender) to social events in order to avoid sexual orientation discrimination

- providing meals in canteens suitable for members of all religions

• duty to advance equality:

- encouraging under-represented groups to participate in career advancement training

- providing equal opportunity and diversity training for all employees

- encouraging applications for employment from under-represented groups

• duty to foster good relations:

- providing staff with education and guidance, with the aim of fostering good relations between transsexual and non-transsexual staff

- arranging social events between older and younger staff.

Conclusion

Employment advisers in the public sector need to inform clients of their obligations under the PSED and consider how best to elim-inate discrimination, advance equality and foster good relations between employees with and without the range of protected characteristics. Those advising in the private sector must consider whether their clients exercise any public functions that would give rise to a need to comply with the PSED. Just as there has been considerable case law about whether a particular body exercises a public function under the Human Rights Act, so the debate is likely to continue in the context of the EqA and, in particular, on whether a private authority is exercising a public function. Further case law on the particular requirements of the PSED is likely.

Helen Mountfield QC, Matrix Chambers and Diya Sen Gupta, Blackstone Chambers

Cases referred to:

Elias v Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 WLR 3213

R (EHRC) v Secretary of State for the Home Department [2010] EWHC 147

R (Brown) v Secretary of State for Work & Pensions [2008] EWHC 3158

R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141

R (Rahman) v Birmingham County Council [2011] EWHC 944

R (Watkins-Singh) v Governing Body of Aberdare Girls' School [2008] EWHC 1865

R (E) v Governing Body of JFS [2009] UKSC 15

YL v Birmingham City Council [2008] 1 AC 95

R (Walsh) v East Berkshire Health Authority [1985] QB 152; [1984] ICR 743

McLaren v Home Office [1990] ICR 824

R (Shoesmith) v Ofsted [2011] EWCA Civ 642