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the Public Sector Equality Duty

10 February 2011

The new Public Sector Equality Duty (PSED) came into force on 5 April 2011. The duty is set out in section 149 of the Equality Act 2010, a piece of legislation which has been billed as a milestone in equality law. The Act is designed to replace the existing race, disability and gender equality duties.

The PSED requires public sector organisations to have due regard to three key areas.

These three areas are:

  • the need to eliminate unlawful discrimination
  • to advance equality between persons who share relevant protected characteristics
  • to foster good relations across all of the protected characteristics.

Guidance provides that having due regard means ‘consciously thinking about the three key aims as part of decision making’.

Public sector bodies, which include schools, colleges and academies, will be required to demonstrate equality across all equality strands within the Act, extending further than merely age, sex, race and religion or belief (as was required under the previous legislation). The ‘protected characteristics’ include considerations such as disability, gender reassignment and sexual orientation. The main aim is for public bodies to consider the needs of all individuals in their decision-making, in developing policy, in delivering services and in relation to their own employees.

Unfortunately the implementation of the PSED has been subject to something of a false start. Draft regulations were initially prepared to underpin the PSED, and to set out what specific steps were required to ensure proper compliance with the PSED. The Regulations prescribed publication of certain information and the setting of key objectives by public bodies. The regulations were also intended to come into force on 5 April 2011. However, the government withdrew the Regulations on 17 March 2011 in order for further revision to be undertaken. Their stated reason is that, following public consultations undertaken in January this year, they wish to reconsider the draft regulations in the light of the policy objective of ensuring that public bodies consider equality when carrying out their functions without imposing unnecessary burdens and bureaucracy. The Government has been persuaded that there is room to ‘strip out unnecessary process requirements’. This stance has been criticised by equality campaigners.

Without the Regulations, there will be no specific duties in place. Public bodies are expected to work towards meeting a general PSED until the revised detailed Regulations come into force.

The government is seemingly keen to get the balance right between appropriate regulations to help meet the duty on the one hand, and public bodies being held to account by the public and users for their record on improving equality on the other. However, the PSED will only truly be able to take effect once the specific duties come into force and until then there is certainly a risk of confusion among education providers in relation to the scope of the duty.

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