This page looks at the Equality Act duties in respect of ‘public 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.
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.
Where do the rules apply?
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:
- law enforcement functions such as arresting a suspect, or interviewing a potential witness to a crime; but the police providing information to the community on crime prevention is likely to be a service to the public;
- a local authority decision as to whether a couple should be allowed to adopt a child;
- claiming a social security benefit (though some aspects such as advice on benefits may be a service to the public, and it seems the actual decision whether a claimant is entitled to a statutory benefit is outside the Equality Act: CDLA 3585 2007);
- tax assessment and investigation (but again some HMRC functions may be services to the public);
- immigration officer functions.
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.
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 and voluntary sector may be included
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.
Examples on stammering
Possible examples of discrimination include:
- failure to give a person who stammers time to speak, including putting the phone down on them – see Right to be heard;
- being offhand or rude; or
- subjecting a benefit claim to particularly rigorous investigation because software has flagged speech hesitations as indicating dishonesty – see Voice analysis on insurance and benefit claims.
This is very important, but the rules are largely the same as the reasonable adjustment duty for services to the public. Also it is actually the duty as regards services to the public that will apply to public authorities anyway, so far as it provides services to the public rather than other functions.
The reasonable adjustments duty as regards services to the public and public functions are therefore covered together on the same page: Reasonable adjustments by service providers.