Advice for members
Advice from the Borough Solicitor to Camden Elected Members on Equality Act 2010 and Equality Impact Assessments (EIAS)
As you will be aware the Equality Act contains the public sector equality duty.
The duty covers the following eight protected characteristics: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. People with those characteristics are often referred to as protected groups.
Compliance with the general equality duty is a legal obligation and in particular must be taken into account and inform decision making and policy development.
In summary we must, in the exercise of our functions, have due regard to the need to:
- Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
- Advance equality of opportunity between people who share a protected characteristic and those who do not
- Foster good relations between people who share a protected characteristic and those who do not
These are sometimes referred to as the three aims or arms of the general equality duty. The Act explains that having due regard for advancing equality involves:
- Removing or minimising disadvantages suffered by people due to their protected characteristics
- Taking steps to meet the needs of people from protected groups where these are different from the needs of other people
- Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low
The Act states that meeting different needs involves taking steps to take account of disabled people’s disabilities. It describes fostering good relations as tackling prejudice and promoting understanding between people from different groups. It states that compliance with the duty may involve treating some people more favourably than others.
In order to comply with the general equality duty, a public authority must ensure that:
- Those who exercise its functions (Members and Senior Officers) are aware of the duty’s requirements. Compliance involves (according to case law) “a conscious approach and state of mind” This means that decision-makers must be fully aware of the implications of the duty when making decisions about their policies and practices
- The duty is complied with before and at the time that a particular policy is under consideration and a decision is taken. A public authority cannot satisfy the duty by justifying a decision after it has been taken
- Consideration of the need to advance equality forms an integral part of the decision-making process. The duty must be exercised in such a way that it influences the final decision
- Any third parties exercising public functions on its behalf are required to comply with the duty, and that they do so in practice. This is because the duty rests with the public authority even if they have delegated any functions to a third party
- Regard is given to the need to advance equality when a policy is implemented and reviewed
Members will be familiar with sections in reports detailing equalities implications. The Equality Impact Assessments, while not as such a requirement in law, are the means by which we consider equalities implications and seek to demonstrate that we have paid due regard to the issue. It is down to officers to seek to identify when matters may have an equality impact and explore these issues and put them before Members in reports to them, but when considering the issues it’s important that Members relate this back to the general duties outlined above. Clearly, even if Officers have not identified any equality issues but Members consider there might equality issues raised by the report, they should raise these issues and seek reassurance that these matters have been properly thought through.
Appendix 1 Section 149 of the Equality Act 2010 Public sector equality duty
- A public authority must, in the exercise of its functions, have due regard to the need to: •Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act
- Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
- Foster good relations between persons who share a relevant protected characteristic and persons who do not share it
- A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
- Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to:
- Remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic
- Take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it
- Encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low
4. The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
5. Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to:
(a) tackle prejudice, and promote understanding.
6. Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
7. The relevant protected characteristics are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation. Public authorities also need to have due regard to the need to eliminate unlawful discrimination against someone because of their marriage or civil partnership status. This means that the first arm of the duty applies to this characteristic but that the other arms (advancing equality and fostering good relations) do not apply.
8. A reference to conduct that is prohibited by or under this Act includes a reference to:
•A breach of an equality clause or rule
•A breach of a non-discrimination rule
9. Schedule 18 (exceptions) has effect.
Borough Solicitor (updated January 2016)