Having due regard to equality

All universities and colleges are broadly familiar with the public sector general equality duty (sometimes known as the ‘single equality duty’) imposed by the Equality Act 2010, which requires public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people of different protected characteristics.

What this actually means in practice, however, is perhaps less well understood.  Whilst most institutions routinely carry out an ‘impact assessment’ of new policies and key decisions, this is rarely more than simply a box-ticking exercise; and statistics on recruitment, success rates etc. are regularly reviewed but seldom lead to specific action to address any inequalities shown. 

Some help may be at hand in the form of new Technical Guidance published by the Equality & Human Rights Commission (EHRC) on the Public Sector Equality Duty in England.  The guidance applies to all public bodies covered by the single equality duty, including FE and HE institutions. 

The document contains guidance on what the general equality duty means in practice, including:

·         Positive action and other steps public authorities can take to advance equality

·         The need to obtain evidence to assess the impact of policies and procedures

·         How to engage with individuals who may be affected by decisions in order to comply with the duty

·         Having due regard to the duty when making decisions, including the need to provide training to decision-makers and giving the duty due weight in decision-making

·         How to comply with the specific duties, such as the requirement to publish information to show compliance

·         Enforcement by the EHRC: their duties, powers and the relevance of judicial review.

The guidance emphasises that the general equality duty applies to any function carried out by a public authority, and that it applies not only to general decisions on policy etc., but also to decisions on the application of that policy in individual cases.   As the guidance states:  ‘The broad aim of the general equality duty is to integrate consideration of the advancement of equality into the day-to-day business of all bodies subject to the duty’.

Detailed guidance is given on what is meant by ‘due regard’, which will vary depending on the circumstances and on the relevance of the three aims to the decision or function in question.   The duty may also be more relevant to some protected characteristics than others: for example, the introduction of a fitness-to-study policy is likely to impact more significantly on disabled students than on students with other protected characteristics.

The guidance also contains a useful reminder of the link between the general equality duty and the defence of objective justification in certain types of discrimination (such as indirect discrimination or a failure to make reasonable adjustments).   Whilst a failure to comply with the general equality duty does not automatically mean that the act complained of was not a proportionate means of achieving a legitimate aim, it will be easier for a public authority to prove justification where it can show that it carefully considered the impact of the decision in the context of its general equality duties.

A copy of the Technical Guidance can be found at: http://www.equalityhumanrights.com/legal-and-policy/equality-act/equality-act-codes-of-practice-and-technical-guidance/.

Joanna Forbes
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1310
M: 07725 241552
F: 0800 763 1710
International DD: +44 870 763 1310
W: www.sghmartineau.com

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