The Public Sector Equality Duty (PSED) has been the subject of a review by an Independent Steering Group set up by the Government as part of the Red Tape Challenge. The Group's Report was published on Friday 6 September and its recommendations have been accepted by the Government, which wants to see them implemented in full.

We blogged in February and June last year on the PSED requirements. It will be recalled that the PSED requires public bodies (which include the majority of universities and colleges) when carrying out all their functions to have due regard to:

  • the need to eliminate unlawful discrimination;
  • promote equality of opportunity between people with different protected characteristics; and
  • foster good relations between different groups

This general duty is underpinned by specific duties which include the setting of objectives and the publication of information about compliance with the general duty.

The Steering Group has concluded that it was "too early to make a final judgement about the impact of the PSED ... and evidence, particularly in relation to associated costs and benefits, is inconclusive." They also felt that uncertainty around demonstrating that one had had "due regard" had "led to public bodies adopting an overly risk averse approach to managing legal risk in order to rule out every conceivable [risk]."

The Group made a number of recommendations directed to the Equality & Human Rights Commission (ECHR), public bodies, contractors and the Government.

For public bodies they recommend:

  • adopting a proportionate approach to PSED and not seeking to "gold plate" compliance.
  • in connection with procuring services, reducing the burden on small employers by: not using pre-qualification questionnaires for contracts under £100,000 and using the government's core PQQ for contracts over £100k (see the PQQ section of our procurement blog for more); and not imposing burdensome requirements on contractors to deliver equality data about their workforce and service users.

For the Government they recommend:

  • adopting a proportionate approach to the specific duties.
  • The Chair of the Group (Rob Hayward OBE) recommended considering removal or modification - which the Government Equalities Office has accepted.
  • reviewing how PSED are enforced to find quicker and more cost effective ways of doing so (at present the route is judicial review)
  • conducting a formal evaluation of the effectiveness of the PSED in 2016.

Given the Government’s acceptance of the recommendations, we can expect a further change - most likely a reduction - to the specific duties and clearer and shorter guidance from the EHRC (which has yet to publish a response). Another recommendation makes it very likely that "regulators, inspectorates and relevant ombudsmen services" will be encouraged to take a greater role in respect to compliance action, suggesting we will see closer working between the ECHR and HEFCE, QAA, the OIA and OFSTED.