The public sector equality duty was created by the Equality Act 2010 and replaces the race, disability and gender equality duties. The duty came into force in April 2011 and covers age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It applies in England, Scotland and in Wales. The general equality duty is set out in section 149 of the Equality Act. In summary, those subject to the general equality duty must have due regard to the need to:
- Eliminate unlawful discrimination, harassment and victimisation
- Advance equality of opportunity between different groups
- Foster good relations between different groups
The duty to have due regard to the need to eliminate discrimination in the area of employment, also covers marriage and civil partnership. The Equality Act also gives Scottish Ministers the power to impose specific equality duties through regulations.
To ‘have due regard’ means that in carrying out all of its functions and day to day activities a public authority subject to the duty must consciously consider the needs of the general equality duty: eliminate discrimination; advance equality of opportunity and foster good relations. How much regard is 'due' will depend on the circumstances and in particular on the relevance of the needs in the general equality duty to the decision or function in question in relation to any particular group. The greater the relevance and potential impact for any group, the greater the regard required by the duty.
The public sector equality duty covers those with 'relevant protected characteristics': age, disability, sex, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. The duty to have due regard to the need to eliminate discrimination also covers marriage and civil partnerships in relation to employment issues.
The public sector equality duty is in two parts – the public sector equality duty in the Equality Act 2010 itself, which is often referred to as the ‘general duty’ and specific equality duties introduced by Scottish Ministers through regulations (as amended). The specific equality duties are not an end in themselves; they are intended to enable the better performance of the general equality duty.
The specific equality duties for Scotland came into force on the 27 May 2012 and the Equality and Human Rights Commission has published guidance to support Scottish public authorities subject to the specific equality duties. Public authorities subject to the specific equality duties are required to:
- report on mainstreaming the equality duty
- publish equality outcomes and report progress
- assess and review policies and practices
- gather and use employee information
- publish information on board diversity and succession planning
- publish gender pay gap information
- publish statements on equal pay
- consider award criteria and conditions in relation to public procurement
- publish required information in a manner that is accessible.
Only authorities that are listed as subject to the general duty can be listed for the specific equality duties. These listed authorities are named or described in the schedule to the regulations. This list can be amended by the Scottish Government. The Commission has published a list of public authorities covered by the specific duties.
Mainstreaming equality simply means integrating the general equality duty into the day-to-day working of an organisation. It is for the organisation themselves to determine how best to mainstream equality in their day-to-day functions. The specific equality duties require a listed public authority to publish a report on the progress it has made to make the equality duty integral to the exercise of its functions to better perform that duty. The Commission has published non-statutory guidance on mainstreaming.
Equality outcomes are results intended to achieve specific and identifiable improvements in people’s life chances.
The specific equality duties require listed public authorities to publish equality outcomes and report on progress. An equality outcome is a result a listed authority aims to achieve in order to further one or more of the needs of the general equality duty. The Commission has published non-statutory guidance on equality outcomes and the public sector duty.
The specific equality duties require listed public authorities to publish equality outcomes and report on progress. The purpose behind setting equality outcomes is to help further the needs mentioned in the general equality duty.
Public authorities are not required to set equality outcomes for each protected group. Each public authority will have flexibility to decide what equality outcomes and how many to set. In preparing equality outcomes public authorities must consider relevant evidence relating to equality groups and communities and take reasonable steps to involve them in the process of preparing outcomes. Gathering and analysing this evidence will help public authorities to understand the most significant equality issues and to demonstrate that the equality outcomes set are supported and justified by evidence.
The specific equality duty to assess and review policies and practices requires a listed public authority to assess the impact of applying a proposed new or revised policy or practice against the needs of the general equality duty.
In carrying out the assessment the public authority must, consider relevant evidence relating to people who share a protected characteristic (as in, for example, evidence from a disabled peoples’ organisations). Public authorities must publish the outcome of each assessment where they decide to apply the policy or practice in question.
Download our booklet Public Authorities in Scotland - Who is covered by the Specific Duties? for information on what needs to be published and when.
Where a private or voluntary organisation provides a ‘public function’ it is then subject to the general equality duty.
A public function refers to activities that are carried out on behalf of the State not similar in kind to services that could be performed by private people. Public functions can also be carried out by private or voluntary organisations, for example when a private company manages a prison or when a voluntary organisation takes on responsibilities for child protection.
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Last updated: 03 Mar 2021