Nicola Brown and Judy Roy introduce the new public sector duties

What duties?

The new public sector duties have three main components:

  • a general duty on all public authorities to promote equality of opportunity;
  • a specific duty on certain named authorities to introduce and publish equality schemes; and
  • a duty on public authorities not to discriminate in the performance of their public functions.

These duties have applied in the race relations field since 2002. In December 2006 corresponding duties were imposed under the Disability Discrimination Act. From April 2007 similar provisions will apply in the sex discrimination field. There are currently no plans to impose similar duties for the other three discrimination strands – ie, religion or belief, sexual orientation or age.

What is a public authority?

When the race duties were introduced, all public authorities affected were named. With the disability and gender duties this approach has been abandoned. Instead public authorities are defined by what they do – ie, performing public functions. This means that some private sector organisations will be caught, though the precise reach of these measures is still unclear.

The position is different with the specific duties to publish equality schemes, which apply only to specified authorities, including most local authorities, NHS bodies and HE institutions.

What do the general duties cover?

The general duties impose an obligation on a public authority to “have due regard” to the need to eliminate unlawful discrimination and promote equality of opportunity (in relation to race, gender or disability as appropriate) when carrying out its functions. These are wide-reaching obligations which extend to every area of a public body’s activities, and are not limited to those areas (such as employment and the supply of goods and services) already covered by existing legislation.

What is an equality scheme?

An equality scheme can best be seen as a mechanism for ensuring that a public authority carries out its general duties. It is essentially a public action plan which establishes priorities for addressing equality issues and provides a means of measuring progress. Some authorities will adopt three separate schemes for each strand, while others are planning to produce one overall document.

How does this affect the private sector?

Public sector bodies will now be obliged to consider imposing equivalent obligations on private sector organisations with whom they contract. In addition, some private bodies performing public functions are likely to find themselves subject both to the general duty to promote equality of opportunity, and the duty not to discriminate in the performance of public functions. This may lead some “hybrid” authorities to publish equality schemes, because even if they have no legal obligation to do this, it would provide a good way of demonstrating compliance with the general duty.

It is also possible that these new public sector duties will encourage larger private bodies to adopt a similar approach to equality issues, thus raising the bar for employers generally, who may be expected to demonstrate a more proactive approach to equality issues when defending discrimination proceedings.