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PSED: Procurement - promoting equality in the private sector

This page outlines how the Public Sector Equality Duty can affect procurement.

Note: this page covers the Public Sector Equality Duty which took effect from 5th April 2011. Before then, the Disability Equality Duty applied.

Even before the Equality Act 2010, public bodies should have been taking equality into consideration under the Disability Equality Duty when awarding contracts to the private sector. However, the Labour Government did not believe this happened as frequently or consistently as it could. The Government pointed out that 80% of people are employed in the private sector and 30% of British companies are contracted to the public sector.

The Equality Act 2010 makes clear that public bodies can use procurement to drive equality: s.17 Local Government Act 1988 might prevent authorities taking certain 'non-commerical matters' into account, but EqA Schedule 26 makes clear they are allowed to do so to facilitate compliance with the PSED.

Equality Act 2010 Explanatory notes (pdf), para 1010:
A local authority wants to contract with a private company. It will be able to take into account the ethnic make-up of the workforce of that company, the behaviour of that company during an industrial dispute, and any other issue which is defined as non-commercial, when deciding to award the contract, but only if it considers it is necessary to do so in order to meet the requirements of the public sector equality duty.

Probably even more important though is taking equality issues into account in the specifications of the contract - e.g. what services are to be supplied and how, what outcomes are to be produced. This is very much something; that authorities should already have been doing. See below Links for pre-Equality Act guidance. An example related to stammering might be ensuring that a telephone voice recognition system includes an option for someone who stammers to be put through promptly to a real person.

Specific duties

The Equality Act enables Ministers to make regulations setting out specific duties in relation to procurement (s.155). However, at least as regards England and non-devolved bodies, the Coalition Government said in its August 2010 consultation document The public sector Equality Duty: Promoting equality through transparency (link to GEO website on National Archives):

5.21 The Equality Duty requires public bodies have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups across all their functions. We do not believe it is necessary to impose burdensome additional processes on public bodies telling them how to conduct their procurement activity: they will be judged on the outcomes that they deliver.

The Welsh regulations on the specific duties do include provisions on public procurement (clause 14).

Links

The two UK links are documents from before the Equality Act 2010. They may be out of date in some respects but illustrate how disability can be taken into account in procurement.

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Last updated 13th May, 2011