Case law and the public sector equality duty
Rakesh Patel looks at existing case law and assesses its relevance to and impact on the public sector duties being introduced under the Equality Act 2010.
Since the first public sector equality duty (on race) came into effect over ten years ago with sex and disability following a few years later, an increasing number of cases have made it to the courtroom under the current law.
What are the new duties under the Act?
The new duties will replace the three existing public sector equality duties to cover all eight protected characteristics and will require the relevant public bodies, when exercising their functions, to have due regard to:
• the need to eliminate discrimination
• advance equality of opportunity
• foster good relations between people who share the relevant characteristic and those who don’t.
What is “due regard”?
Current legislation does not provide much information about what is meant by the phrase “due regard” and nor does the Equality Act.
Section 149(3) of the Act just states in general terms that having “due regard” to advancing equality of opportunity involves having due regard to:
• the need to remove or minimise disadvantages
• taking steps to meet the needs of people from protected groups
• encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.
As a result of the general nature of the clauses, the responsibility of defining “due regard” has fallen to the courts.
Brown -v- DWP
One of the leading cases, Brown -v- Secretary of State for Work and Pensions (2008) set out some general principles.
Mrs Brown was disabled and lived with her husband in Sussex. She could not stand or walk for long periods without acute pain. In late 2007, she discovered that the government was proposing to shut down a number of post offices in Sussex, including the branch in her village. Because of her disability, this would make it very difficult for her to access another post office further away.
In a legal challenge to the decision, Mrs Brown claimed that the government had failed to comply with its duties under the Disability Discrimination Act 2005, in particular its duty to pay due regard to the equality duties as it had not carried out a disability equality impact assessment of the closure proposal. She was unsuccessful.
The court set out the following principles:
• Those responsible for the duty to have due regard must consciously bring it to mind when considering the duty. If they don’t or if their appreciation of the duty is incomplete or mistaken, the courts will deem that due regard has not been applied.
• The due regard duty must be fulfilled before and at the time that a particular policy is being considered. Compliance with the duty should not be treated as a rearguard action after a decision to implement the policy in question.
• It must be exercised with rigour and with an open mind. Due regard involves more than a tick box exercise. The “substance and reasoning” of the decision must be examined. However, a failure to make explicit reference to the relevant positive equality duty will not, of itself, be fatal to a decision.
• It is good practice for public authorities to keep an adequate record showing that they had actually considered their equality duties and pondered relevant questions.
• The due regard duty cannot be delegated to a third party by the public authority charged with it.
• The duty is ongoing.
• When applying the “due regard” test, the public authority must take into account whatever countervailing factors are relevant in the circumstances.
Kaur -v- London Borough of Ealing
This case dealt with the issue of whether a race impact assessment should have been carried out before the council decided to cut funding to a voluntary organisation, Southall Black Sisters (SBS). It provided services to Asian and Afro-Caribbean women who experience domestic abuse.
In 2007-2008 they were partly funded by Ealing Borough Council. The council decided in September 2007 that it would only fund borough-wide services provided to everyone experiencing domestic violence irrespective of gender, sexual orientation, race, faith, age, or disability.
SBS said that this would have a disproportionate adverse impact on black and minority ethnic (BME) women and pointed out that the council had not done a race equality impact assessment.
The council then undertook a “draft equality impact assessment”, which indicated that the impact on BME women would be monitored when the new arrangements were in place.
However, it did not carry out a full equality impact assessment. A few months later, the council confirmed its earlier decision to fund a single borough-wide service provider. The claimants, service users of SBS, successfully applied to judicially review this decision.
The court quashed the council’s decision and reiterated the importance of undertaking an equality impact assessment, and also the importance of carrying out an impact assessment before formulating policy.
There are a number of other examples of successful cases that have resulted in the courts’ quashing the decisions of public authorities.
• cutting the funding of voluntary organizations in Chavda -v- Harrow LBC
• refusing to allow a Sikh girl to wear a kara through the rigid application of a school uniform policy in Watkins-Singh -v- Governing Body of Aberdare Girls High School
• refusing to license a particular model of taxi for use as a hackney cab despite disabled groups making representations that many wheelchair users could not travel safely in Lunt and another -v- Liverpool City Council
• approving planning permission for a development of chain stores and luxury flats on a site overwhelmingly occupied by BME businesses and tenants in Harris -v- London Borough of Haringey.
It’s worth remembering that the whole point of enacting the public sector duties in the first place was to eliminate institutional discrimination.
The race equality duty, the first to be enacted, was a response to the recommendations of the Macpherson inquiry into Stephen Lawrence’s murder, highlighting the need for organisations to eliminate institutional racism.
The duties do not create rights for individuals.
Nor are they concerned with the avoidance of discrimination.
Instead, as the Court of Appeal said in Baker -v- Secretary of State for the Environment, the “promotion of equality of opportunity ... will be assisted by but is not the same thing as the elimination of ... discrimination ... the promotion of equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration than merely asking whether there has been a breach of the principle of non-discrimination...”
The established principles within the case law reflect this and will be as relevant to the new duties under the new legislation as they were to the previous ones.