15 years of stammeringlaw 1999-2014
Home Overview Disability Discrimination Employment Services Education PSED Benefits Business Advice Links More...
These pages do not apply outside Great Britain.

PSED: General Duty

The Public Sector Equality Duty (PSED) has two elements, the 'general duty' covered on this page, and the 'specific duties'. Under the general duty, the courts have adopted quite a firm line with authorities whose decision-making fails to take due account of disability issues.

Note: this page covers the general duty under the single Public Sector Equality Duty which took effect from 5th April 2011. Before then, the Disability Equality Duty applied. However the old and new general duties have much in common, and cases on what it means to have 'due regard' under the previous general duty are very likely to be followed as regards the new duty.

Introduction

The PSED has two parts, the general duty and specific duties. Under the 'general' duty, dealt with on this page, the public authority must 'have due regard to' a list of considerations relating to disability (and other equality grounds). Case law on the general duty within the 'disability equality duty' and similar duties for race and gender which applied before April 2011 are still relevant. The courts have been willing to give the general duty real teeth, and in a number of cases have quashed public authority decisions because the impact on disabled people was not duly considered when the decision was being made.

Content of the general duty

The 'general duty' part of the Public Sector Equality Duty (PSED) (in EqA s.149) obliges public authorities to have due regard to the need to:

Taking disabilities individually?

In the second and third heads, under EqA s.6(3)(b) it would seem that disabled people who 'share a protected characteristic' are people who have the same disability. So one is looking advancing equality of opportunity and fostering good relations between people with the same disability and other (disabled and non-disabled) people. Rather oddly, however, EqA s.149(4) is phrased more in terms of disabled and non-disabled people - so the issue of whether and how s.6(3)(b) applies here may possibly need to be decided by the courts. It is unclear though whether the issue will be important in practice.

The 2011 Guidance on definition of disability makes some comments on what is to be seen as the 'same' disability. There is the question whether, for example, the 'same' disability be speech disorders, or disabilities affecting speech, or more specifically stammering.

On having 'due regard' to a particular disabilities rather than disability in general, see also Due regard to stammering: Need to have due regard to a particular disability.

Duty can include treating disabled people more favourably

S.149(6) makes clear that compliance with the general duty may involve treating some persons more favourably than others, though this does not permit conduct that would otherwise be prohibited under the Equality Act. The Explanatory notes (pdf, link to legislation.gov.uk) say:

"This includes treating disabled people more favourably than non-disabled people and making reasonable adjustments for them, making use of exceptions which permit different treatment, and using the positive action provisions [in s.158 and s.159] where they are available."

What is 'due regard'?

The 'general duty' obliges the public authority to 'have due regard to' the list of considerations described above, such as the need to advance equality of opportunity. 'Due regard' involves the authority having to take account of disability etc in their deliberations. The duty does not require the authority to achieve a particular result, or reach a particular decision. However, despite the rather vague wording of the general duty, the courts have been willing to give it real teeth and claimants have won a number of cases. For more detail:

What bodies are covered by the general duty?

'Normal' public authorities

The general duty applies to any public authority listed in EqA Schedule 19 as amended, in any of Schedule 19's four Parts. The list is extensive, including for example most Government departments, local government, police, courts, various health bodies including hospitals (NHS trusts or foundation trusts), publicly funded schools including academies, and universities.

There are a few specific exceptions, such as Parliament, the Security Service, and excercise of a judicial function (EqA Sch 18).

The general duty applies across an authority's functions, including policy-making, service provision and employment matters, and in relation to enforcement or statutory discretion and decision-making. It also includes procurement and commissioning. For some examples of the scope of the duty, see PSED: What is covered.

Private companies

Private companies and voluntary sector organisations are also subject to the general duty so far as they perform a public function (EqA s.149(2)). For example, a private company which has contracted with the Home Office to run a prison will be subject to the general duty, though not in relation to private activities it also undertakes such as providing security guards for supermarkets.

What counts as a 'public function' is determined in the same way as under the Human Rights Act 1998 (EqA s.150). In a leading case discussing the test, the majority of the House of Lords held that a commercially run care home did not have a public function where it was under contract to a local authority to provide care and accommodation for an elderly person which the authority was under a statutory duty to arrange (YL v Birmingham City Council and Others (2007): Exercise of delegated council duty is a private function (link to timeonline.co.uk)). Whether or not the private sector organisation is performing a 'public function', the public body itself remains subject to the general duty even if it has contracted certain functions out. See also Procurement.

Is employment a private activity, and therefore outside the general duty (for a private company) even where it relates to carrying out public functions? In the Equality Bill debates, the Government considered that employment in relation to a company's public functions is subject to the general duty:

"I will now address the point that employment might be singled out as a function that should not be subject to the duty. It seems to us that employment is part and parcel of the way in which public functions are delivered, because it is difficult to deliver that if one cannot consider the technical abilities of the people one employs to do it. How could a private contractor be required to make arrangements for advancing equality in all the aspects of running a prison but not in relation to the people it employs or how it employs them? Employment functions have not been excluded from the current duties." (col 550, HC Public Bill Cttee, 30th June 2009 (link to UK Parliament website)).

Employment by private contractors was also considered in the House of Lords Committee: col 1500 HL Hansard 27 Jan 2010 (link to UK Parliament website). For example:

"In simple terms, employment will be caught where integral to the performance of a public function. For example, where a contractor runs a prison it will need to comply with the duty in relation to its employees working in the prison but not those involved in other work such as collecting cash from a bank."

Northern Ireland

The rules above do not apply in Northern Ireland, but see Northern Ireland: Obligations on public authorities.

Top

Homepage | Equality Act in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer

© Allan Tyrer 1999-2011
Last updated 27th May, 2011