These pages do not apply outside Great Britain.
This page looks at the Equality Act duties in respect of 'public authority functions' which are not services to the public. To have the rights, your stammer needs to be a 'disability' within the Equality Act, or in some cases be perceived as a disability. As well as these rules, the public authority will normally also be subject to the disability equality duty.
"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)
The "Services Code" means the 2011 Equality Act Code of Practice on services, public functions and assocations (pdf, link to EHRC website), which came into force on 6th April, 2011.
The rules broadly apply to functions of public authorities which are not services to the public, Examples include arrest and interview by the police, or tax enforecment. The rules can also extend to public functions undertaken by the private and voluntary sector.
Public authorities have duties not to discriminate or harass in relation to disability. This includes a duty to make reasonable adjustments. In general, the normal rules on discrimination apply.
The rules on public authority functions do not necessarily apply to Northern Ireland.
The rules on public authority functions are 'residual' - they do not apply if another part of the Equality Act applies (or would apply but for an exception). Some functions will not be within the 'public functions' rules because they are are already covered by the education rules. Also many public authority functions, such as libraries, leisure services and provision of information, will fall within the normal Part 3 rules on services to the public.
However some public functions are probably not services to the public, eg arrest by a police officer. It was to cover this kind of situation that the rules on public authority functions were introduced. Some examples of where the rules are likely to apply:
The duties imposed on public authorities when providing a service to the public and those imposed when performing a function are similar in many respects, so it will not necessarily make much difference which set of rules applies.
ZH v The Commissioner of Police for the Metropolis, Court of Appeal, February 2013
An autistic boy had become 'stuck' at the side of a swimming pool, and jumped into the water when approached by police. He ended up being restrained by the police, and put in the cage at the back of a police van. The Court of Appeal upheld a decision that the police had failed to make reasonable adjustments,in breach of disability discrimination legislation. The police should have consulted the boy's carers from the school (at least one carer was present the whole time), to inform themselves properly before taking any action which led to the application of force. Their treatment of him was also in breach of human rights law.
MM & DM v Secretary of State for Work and Pensions, May 2013, Upper Tribunal
Claimants for Employment and Support Allowance (ESA) argued that the government is failing to make reasonable adjustments (under Equality Act 2010) for those with mental health problems. The Upper Tribunal agreed that people with mental health problems are put at a substantial disadvantage by the ESA assessment procedure. It adjourned the case for further investigation on what steps should be taken.
The rules apply in relation to 'functions' of a 'public authority' - unless covered by other parts of the Equality Act as discussed above.
In general any public authority falls within the rules. This is subject to a few exceptions, such as Parliament and the Security Service. Local and central government are covered as well as many other bodies, for example the police.
Generally all activities of a public authority are 'functions'.
There are just a few specific exceptions, such as 'judicial acts' (eg a judge's ruling) or a decision not to institute criminal proceedings. See Appearing in court: Equality Act for more on the main exceptions.
Private companies and voluntary sector organisations are also subject to the rules where they perform a public function. For example, a private company which has contracted with the Home Office to run a prison will be subject to the rules (so far as another part of the Equality Act does not apply), but not in relation to private activities it also undertakes such as providing security for banks.
It is s.29(7) EqA which says that a person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.
Accordingly the normal types of discrimination, harassment and victimisation are covered - see my Discrimination page. As set out there, for some (but only some) types of discrimination the service provider has a defence if it shows its action was objectively justified.
An important aspect of discrimination is the duty for service providers to make reasonable adjustments. This is dealt with separately under the next heading.
Possible examples of discrimination include:
This is basically the same as for services to the public: see Services to the public: Duty to make reasonable adjustments. As explained in some details there, the duty is anticipatory.
So legally one focusses on the impact on people with that type of disability, rather than on the individual claimant. Broadly, there is an obligation to take reasonable steps if a service provider's provision, criterion or practice puts people with one or more types of disability at a substantial disadvantage. Similarly on auxiliary aids: there is also the duty to take reasonable steps to provide an auxiliary aid or service if disabled persons would otherwise be put at a substantial disadvantage.
For public functions Sch 2 para 2(5) gives a special meaning to being "placed at a substantial disadvantage" (note that 'substantial' means only 'more than minor or trivial'). The meaning is:
MM & DM v Secretary of State for Work and Pensions, May 2013, Upper Tribunal.
Claimants for Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments for those with mental health problems. Among other things, the tribunal considered the special wording of the reasonable adjustment duty as regards public functions, and how it applies to benefit claims. In particular, the court held that an adverse experience can be a 'disadvantage' within (a) above, even though 'adverse experience is only mentioned in (b).
Also, for an example of applying these reasonable adjustment rules to the police, see above ZH v The Commissioner of Police for the Metropolis.
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Last updated 27th July, 2013