All things being equal: so far, so good

The Public Sector Equality Duty (PSED) was brought in by the Equality Act 2010 and came into force in April 2011.  It requires public bodies to have due regard to the need to:

  • eliminate unlawful discrimination
  • promote equality of opportunity between different groups
  • foster good relations between different groups.

This general duty is supplemented by two specific duties on public bodies:

  • to set and publish equality objectives every four years
  • to publish information to show their compliance with the PSED, at least annually.

In theory the PSED is of benefit to the voluntary sector, as it requires that everyone is treated equally, including in the procurement process, which often seems weighted against smaller organisations.

An Independent Steering Group was tasked by the Government last year to assess whether the PSED was operating as intended, i.e. whether it met the Government’s aims:

  • to build on the previous equality duties, to simplify the previous duties and to extend the duty to other protected characteristics
  • to be outcomes-focused
  • to reduce the bureaucracy associated with the previous duties.

Their Report was published in September, and the Government agrees with and supports its findings.

In short, the report said it was too early to carry out a full review, as the PSED had only been in force for two years.  It recommends a full review is carried out in 2016.

It found evidence that in the procurement process, equalities considerations were often seen as a ‘tick-box’ exercise and created a barrier for smaller companies and charities wishing to tender for public contracts.  It encourages private and voluntary sector employers to refer any potentially inappropriate equality requirements that have been applied to a particular procurement exercise to the Cabinet Office Mystery Shopper scheme.  Interestingly, it failed to mention the EHRC’s guidance on procurement and the PSED that was published earlier this year – see our article for more details.

A key message from the report is that there is a clear need for simple guidance as to what constitutes ‘due regard’, as this is the area which gives rise to most challenges.

The report also looked at how the PSED is enforced.  Normally this is through judicial review.  Challenges have been based on the fact that what it means to have ‘due regard’ in a particular situation is not qualified in the legislation.  A breach of the PSED is normally only one ground of challenge in a judicial review, but it can be a significant one (the successful challenge to the stopping of the Building Schools for the Future scheme being perhaps the best-known example).  However, even when such challenges are successful, the end result is often (as in that case) that the decision is re-taken and the same answer is reached, which seems to benefit no one.  The report recommends that “enforcement of the PSED needs to be proportionate and appropriate. In light of the findings around Judicial Review, the Government should consider whether there are quicker and more cost-effective ways of reconciling disputes relating to the PSED.”

In her Written Ministerial Statement responding to the report, Maria Miller MP, Minister for Women and Equalities, said: “We accept the recommendation to consider what complementary or alternative means, other than judicial reviews, there may be to enforce the PSED.  Recognising that many of the concerns identified in the report are not unique to the PSED, we will take account of this recommendation in the wider work, led by the Justice Secretary, to ensure that disputes are resolved in the most proportionate way possible and in the most appropriate setting“.

Hopefully this will make it easier for organisations which claim to have suffered a loss as a result of a public body’s breach of the PSED to obtain redress, and is part of the wider reforms to the judicial review process currently being considered.  See this article for more details