The Public Sector Equality Duty: one year on and continuing uncertainty

19 April 2012

The Public Sector Equality Duty (PSED), contained in section 149 Equality Act 2010, was implemented from 5 April 2011. Since then there have been a raft of judicial review cases alleging breaches of the PSED. Unfortunately, but as exemplified in the most recent decision, R oao Williams and Dorrington v Surrey County Council [2012] EWHC 867 (Civ), just what the PSED requires, and how the Court should assess compliance, remains uncertain.

Under the PSED public bodies, in exercising their functions, are required to have “due regard” to the need to eliminate discrimination, the need to advance equality of opportunity and the need to foster good relations between those sharing or not sharing protected characteristics (the protected characteristic are: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; and, sexual orientation). The PSED represents a rationalisation and expansion of “due regard” duties contained in earlier anti-discrimination legislation.

Under that earlier legislation, in Brown v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) the Court had identified six general principles demonstrating what “due regard” requires in practice: (i) the decision maker must be aware of the duty; (ii) the duty must be fulfilled before and at the time the particular policy is being considered; (iii) the duty must be exercised in substance, with rigour and with an open mind; (iv) the duty is a non-delegable duty; (v) the duty is a continuing one; and (vi) it is good practice for public authorities to keep an adequate record showing how they have considered the duty. These principles were subsequently approved by the Court of Appeal and provided a workable basis for decision making by public bodies. However subsequent cases have added to or glossed the six principles, so that in Williams, Mr Justice Wilkie identified fourteen relevant factors (including the six Brown principles). Even allowing for the fact that there is overlap between those factors, the effect is to add an undesirable complexity and so make it difficult for those taking decisions in public bodies to know actually what it is they need to do to comply with the PSED.

The second area of major concern is the uncertainty about the proper test to be applied by the Court to determine whether the PSED duty has been met. In the majority of cases, the approach has been that this is simply something for the Court to determine on its own assessment of the facts. A minority approach – but one which reflects the approach adopted in similar types of decision making – has been that the Court should apply the Wednesbury reasonableness test. It is very much to be hoped that this point can be considered by the Court of Appeal sooner rather than later and clear guidance provided.

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