Public sector equality duty under the Equality Act 2010 comes into force on 6 April 2011

25 March 2011

On 6 April 2011 the new Public Sector Equality Duty ("PSED") comes in to force. The PSED consists of a general equality duty and specific duties which are imposed by secondary legislation. (The statutory instrument concerned has still not been authorised by Parliament but is available in a draft form.) Although the specific duties nominally commence on 6 April some have different timeframes for implementation.

Key dates for the equality duty
6 April 2011 - general and specific duties come into force
31 July 2011 - listed bodies (except schools) to publish equality information
31 December 2011 - schools to publish equality information
6 April 2012 - listed bodies (including schools) to publish equality objectives

In summary, the PSED obliges public sector organisations to initiate schemes to:

• eliminate unlawful discrimination, harassment and victimisation;
• advance equality of opportunity between different groups;
• foster good relations between different groups

Which protected characteristics will the PSED cover?
The PSED covers: age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. The duty to have due regard to the need to eliminate discrimination also covers marriage and civil partnerships.

Does it apply to Foundation Trusts and private sector health bodies?
The PSED applies to other organisations that exercise public functions (via, grants, procurement or commissioning) and so Foundation Trusts are covered in the same way as NHS bodies. The Equality Act 2010 defines a public function as a function of a public nature for the purposes of the Human Rights Act 1998. An example of this would be a private company running a health related function on behalf of the government. The company would, however, only be covered by the general equality duty with regard to its public functions, but not for other work unrelated to that health function.

What are the specific duties?
Public sector bodies must publish sufficient information to demonstrate their compliance with the general equality duty in accordance with the timetable mentioned above. From 31 July 2011 and at least annually after that they must publish information which includes:

• information on the effect that their policies and practices have had on employees, service users and others from the protected groups;
• evidence of the analysis undertaken to establish whether their policies and practices will (or have) furthered the three equality aims in the general equality duty;
• details of the information used in that analysis, and
• details of engagement with people with an interest in the aims of the duty.

Public bodies with fewer than 150 employees are not required to publish information on the effect of their policies and practices on their workforce.

Comment
In order to satisfy the PSED NHS and FT Trusts have to ensure that all of their functions, (including HR and Procurement), are tested against the duties and can be shown, based on evidence, that they meet the duties.

The Equality Objectives Report ("Report") replaces the "equality schemes" under the previous Equality Act. This new Report is designed to be much simpler and transparent and it must be made available to the public and demonstrate that consultation has taken place in order to identify the objectives. The report covers 4 years and is reviewed annually to report progress to the community.

What this means in practice is:

• as public sector organisations reshape and resize services a detailed analysis of user profiles and needs has to take place. At this juncture this can be utilised and incorporated into an "equality analysis". This will help to set performance targets.
• the re-writing of policies and processes in accordance with Equality Act 2010, this includes HR and Procurement functions. The equality policy, which is a core document, needs to be reviewed and if necessary, re-written.
• departments within NHS Trusts now need to identify key equality objectives, based on evidence, so an organisational picture can emerge both at a macro and micro level of eliminating discrimination.

We have experience of dealing with equality issues arising out of the previous rules governing race, sex and disability discrimination in the NHS.