What is the Public Sector Equality Duty?
The general Public Sector Equality Duty (“PSED”) set out in Section 149 of the Equality Act requires the public authorities listed in Schedule 19 of the same to have “due regard” to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good community relations.
The Scottish Specific Duties Regulations (SSDR) list the public authorities to whom the PSED applies in Scotland.
Although the PSED is set out in GB-wide legislation, the way in which it is applied to each jurisdiction differs significantly. For example, in Scotland, it is absolutely crucial that a public sector organisation carries out an equality impact assessment before any policy decision is made. The SSDR sets out detailed steps for each authority to follow to ensure the assessment process is carried out correctly. This is not the same for England and Wales.
What is the Equality Impact Assessment (“EIA”)?
When discussing the implementation of a new or revised policy, public authorities are required to assess the impact of this in terms of the protected characteristics against the three needs set out in Section 149 of the 2010 Act:
- Eliminating unlawful discrimination
- Advancing equality of opportunity
- Fostering good community relations
The public authority should consider all relevant evidence throughout the course of their assessment and in doing so, should focus on achieving a meaningful process/outcome rather than conducting a ‘tick box’ exercise. EIAs should be undertaken before a policy is decided, as opposed to afterwards.
The recent case of McHattie v South Ayrshire Council provides an excellent example of the importance of an EIA and its timing. We have outlined below the main facts of the case, followed by the important take-away points.
McHattie v South Ayrshire Council  CSOH 4
On 27 December 2019, the Court of Session delivered its ruling that South Ayrshire Council had breached its public sector equality duty, by failing to undertake an EIA and failing to consult service users and guardians on the impending closure of Kyle Adult Day Centre.
The father of a severely disabled man raised legal proceedings against South Ayrshire Council after he received notification on 10 September 2019 that Kyle Adult Day Centre would be closed by Christmas the same year. Mr McHattie lodged a petition for judicial review seeking reduction of the purported decision, as well as suspension and interim interdict.
It transpired that in June 2019, the Respondent council’s integrated joint board (IJB) decided to close the centre after a review concluded that the centre’s services were “not fit for modern day service provision”. However, service users and guardians were not notified until months later.
The Court held that the Respondent had breached its PSED under section 149 of the 2019 Act by failing to carry out a formal EIA to assess the impact the policy would have upon service users and guardians who engaged with the centre. Lord Boyd made a number of important observations, those of which are detailed below:
- “There was no EIA presented… accordingly it cannot be said that the respondent paid due regard to the effect of the policy on its duties under section 149 of the Equality Act”
- “the decision to close the Kyle Centre has been attended by mismanagement and obfuscation… such decisions cannot be taken by stealth; they must be open and transparent and comply with the duties which Parliament has imposed upon the respondent… any decision as to the future of the Kyle Centre has to be one which is… justified on all the facts including those which emerge from the consultation and EIA”
Key points: Consult, Assess and Communicate
- The PSED applies to more than just employment law – always be conscious of its rules and implications. If you are unsure if the PSED is applicable to you, please seek legal advice.
- Always carry out an EIA before any policy decision is made.
- Transparency is key: Be transparent with affected parties and maintain open communication channels. This can be achieved via a formal consultation process.
This article was co-written by Kirsty Fryer, Trainee Solicitor.
For more information about any of the above or for specific advice, please call 0141 303 1100 and ask to speak to a member of our specialist employment team.