About the Public Sector Equality Duty (PSED)

The General Equality Duty

The Equality Act 2010 replaced the previous anti-discrimination laws with a single Act.

A key measure included within the Act was the introduction of the Public Sector Equality Duty (PSED) which came into force on 5 April 2011 and which is referred to as the General Equality Duty.

The General Equality Duty has three aims. It requires public bodies to have due regard to the need to:

  • eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act;

  • advance equality of opportunity between people who share a protected characteristic and people who do not share it; and

  • foster good relations between people who share a protected characteristic and people who do not share it.

 

The duty to have due regard to the need to eliminate discrimination also covers marriage and civil partnership. The Equality Act also gives Ministers the power to impose specific duties through regulations. The specific duties are legal requirements designed to help those public bodies covered by the specific duties meet the general duty.

Following a government consultation, the Equality Act 2010 (Specific Duties) Regulations 2011 were been laid before Parliament for approval, and came into force on 10 September 2011. 

The specific duties for Scotland were laid before the Scottish Parliament on 21 March 2012 and came into force on 27 May 2012.

The specific duties for Wales were approved by the National Assembly for Wales and commenced on 6 April 2011.

These regulations will promote the better performance of the equality duty by requiring the publication of:

  • equality objectives, at least every four years

  • information to demonstrate their compliance with the equality duty, at least annually

The Scottish Specific Equality Duty

The Scottish Specific duties were created by secondary legislation in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. These specific duties came into force on 27 May 2012. The purpose of the specific duties in Scotland is to help those authorities listed in the Regulations in their performance of the general equality duty.  

The Scottish Specific Duties

 

Duty to report on mainstreaming the equality duty

A listed authority is required to publish a report on the progress it has made to make the general equality duty integral to the exercise of its functions, so as to better perform that duty.

The report must be published not later than 30 April 2013, and subsequently at intervals of not more than two years.

The report must include (if not published previously): an annual breakdown of the information the authority has gathered under its duty to gather and use employee information and details of the progress that it has made in using that information to enable the authority to better perform the general equality duty.

 

Duty to publish equality outcomes and report progress

A listed authority is required to publish a set of equality outcomes which it considers will enable it to better perform the general equality duty, by no later than 30 April 2013.

In preparing a set of equality outcomes, the authority must take reasonable steps to involve people who share a relevant protected characteristic and anyone who appears to the authority to represent the interests of those people.

The authority must also consider relevant evidence relating to people who share a relevant protected characteristic.

If an authority’s set of outcomes does not further the needs of the general equality duty in relation to every relevant protected characteristic, it must publish the reasons for this.

An authority must publish a fresh set of equality outcomes within four years of publishing its previous set.

By no later than 30 April 2015 and every two years thereafter, an authority must publish a report on the progress made to achieve the equality outcomes it has set.

 

Duty to assess and review policies and practices

A listed authority is required to assess the impact of applying a proposed new or revised policy or practice, against the needs of the general equality duty, in so far as is needed to meet the general equality duty.

In making the assessment, an authority must consider relevant evidence relating to people who share a protected characteristic (including any evidence received from those people).

In developing a policy or practice, an authority must take account of the results of their assessment of that policy or practice.

If an authority decides to apply the policy or practice in question, it must publish the results of the assessment, within a reasonable time.

An authority must also make arrangements to review and, where necessary, revise any existing policies or practices.

An authority’s consideration of whether or not an assessment of impact is needed cannot be treated as an assessment itself.

 

Duty to gather and use employee information

A listed authority is required to take steps to gather information on the composition of its employees (if any); as well as annual information on the recruitment, development and retention of employees with respect to the number and relevant protected characteristics of employees.

Importantly, the authority must use this information to better perform the general equality duty.

An authority’s mainstreaming report (see above) must include an annual breakdown of the information gathered. It must also include details of the progress that the authority has made in gathering and using the information to enable it to better perform the general equality duty.

As noted above, the first report on mainstreaming the general equality duty must be published not later than 30 April 2013, and subsequently at intervals of not more than two years.

 

Duty to publish gender pay gap information

A listed authority is required to publish information on the percentage difference, among its employees, between men’s average hourly pay (excluding overtime) and women’s average hourly pay (excluding overtime), no later than 30 April 2013, and every two years thereafter.

The information published must be based on the most recent data available for a date when the authority had at least 150 employees. No publication is necessary if, since these regulations came into force or since publication was last due, the authority has not had 150 employees at any point.

 

Duty to publish statements on equal pay, etc.

A listed authority is required to publish a statement on equal pay, no later than 30 April 2013, and every four years thereafter.

An equal pay statement must contain the authority’s policy on equal pay, as well as information on occupational segregation (the concentration of groups in particular grades and in particular occupations).

The first such report needs to contain information relating to women and men. However, from the second report (due within four years of the first) a listed authority is also required to publish its equal pay information, in relation to people who are disabled and people who are not, and people who are members of a minority racial group and people who are not.

The same 150 employee threshold applies to this duty as to the duty to publish gender pay gap information.

 

Duty to consider award criteria and conditions in relation to public procurement

Where a listed authority is carrying out a public procurement exercise, it must have due regard to whether its award criteria should include equality considerations which will help it to better perform the equality duty.

Where it proposes to stipulate performance conditions in its procurement agreement, it must have due regard to whether the conditions should include equality considerations which will help it to better perform the equality duty.

 

Duty to publish in a manner that is accessible, etc.

If it has existing public performance reporting systems a listed authority is required to use these, as far as practicable, to publish its:

  • report on mainstreaming the equality duty

  • set of equality outcomes and report on progress made to achieve these outcomes

  • gender pay gap information

  • statement on equal pay and occupational segregation. 

 

The reports must also be accessible to the public.

 

Duty of the Scottish Ministers to publish proposals to enable better performance

Scottish Ministers must publish proposals for activity to enable a listed authority to better perform the general equality duty not later than 31 December 2013 and subsequently every four years.

This timing will allow Scottish Ministers to take account of the information published by Scottish listed authorities in their mainstreaming reports, equality outcomes, gender pay gap information and statements on equal pay and occupational segregation.

Scottish Ministers must publish a report on progress in relation to this activity not later than 31 December 2015 and subsequently every four years.

New Duties on Race and Disability in Equal Pay

Two elements of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (the Scottish Specific Public Sector Equality Duties, or PSED) come into force for the first time in 2017.

 

The new duties mean that listed public bodies will have to include race and disability considerations alongside gender in their equal pay statement and occupational segregation information.

 

Under these new duties, each listed public body with 20 or more staff must publish:

 

  • A statement on equal pay, which must specify its policy on equal pay as regards:

    • Women and men

    • People who are disabled and those who are not

    • People who fall into a minority racial group and those who do not

  •  Information on occupational segregation, which is the concentration in particular grades and in particular occupations of:

    • Women and men

    • People who are disabled and those who are not

    • People who fall into a minority racial group and those who do not

 

For most public bodies, the publication deadline for the new duties will be 30th April 2017. For those who were listed later than 2013, the publication deadline will be no later than 30th April in the fourth year after its first publication round.

For more information about the Public Sector Equality Duties, please click here.

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