The PSED and Positive Action

Aileen McColgan, Matrix

The Statutory Equality Needs:

Giving Regard Where it is Due

Purpose and History

it is incumbent upon every institution to
examine their policies and the outcome
of their policies and practices to guard
against disadvantaging any section of
our communities
Sir William MacPherson

A new approach to equality

From restitution to mainstreaming

From tort model to public law duty
Pre-emptive duty of consideration
From avoiding to discrimination to
promoting equality

S149 Equality Act 2010

(1)A public authority must, in the exercise of its functions,
have due regard to the need to
(a) eliminate discrimination, harassment, victimisation and
any other conduct that is prohibited by or under this Act;
(b)advance equality of opportunity between persons who
share a relevant protected characteristic and persons
who do not share it;
(c)foster good relations between persons who share a
relevant protected characteristic and persons who do not
share it.

Protected characteristics

Age
Disability
Gender reassignment
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation

(3) 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
(a) remove or minimise disadvantages suffered by persons who share a relevant
protected characteristic that are connected to that characteristic;
(b)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;
(c)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.
(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
(b) promote understanding.

General principles from the caselaw (1)

Decision makers must be aware of their due regard duties:
Kaur & Shah v Ealing LBC [2008] EWHC 2062 (Admin)
Domb v Hammersmith and Fulham LBC [2009] EWCA 941
Chavda v London Borough of Harrow [2007] EWHC 3064
(Admin)
Baker v Secretary of State for Communities and Local
Government [2008] EWCA Civ 141;
Brown v Secretary of State for Work and Pensions [2008]
EWHC 3158 (Admin);
Brooke v Secretary of State for Justice [2009] EWHC 1396
(Admin)

Principles (2)
Due regard is regard that is appropriate in
all the circumstances proportionality is the
key
The duty concerns the decision making
process it does not dictate the outcome.
The duty must be exercised with rigour and
with an open mind

Principles (3)
Timing: must be fulfilled before and at the
time of the decision
A continuing duty
The need for an EIA?

When should an EIA be carried out?

Not every policy needs one: screening
Key concept is relevance
Who is it likely to affect and in what way? Are
any of the equality strands likely to be
relevant?

Key steps in an EIA

Identify what equality strands the policy might affect

What evidence already exists about potential impact?
What further evidence is needed?
Consultation Rahman v Birmingham City Council [2011] EWHC 944
(Admin):
1. Undertaken at a time when proposals are still at a formative stage;
2. Sufficient reasons must be provided to permit those intelligent
consideration and response;
3. Adequate time must be given;
4. Product of consultation must be conscientiously taken into account
when the ultimate decision is taken.
R v Brent London Borough Council ex p Gunning [1985] 84 LGR 168.

Assessing the impact the hard part

What are the main findings do they reveal any issues relevant to the equality
strands. For example...
Could outcome of policy differ according to peoples ethnic group, gender, disability,
sex etc
Is there evidence of higher/lower uptake of the service/benefit among different
groups?
If so, or if different impacts on different groups, is that consistent with policy
objective?
Could policy disadvantage people from one or more groups?
If there is differential impact that disadvantages one group, how can that impact be
minimised consistent with the need to take into account overall policy objectives,
which may include cost savings.
Do effects amount to unlawful discrimination?
Does policy promote equality of opportunity? If not, could it be changed to do so?
Does policy foster good relations between people of different groups? If not, could it
do so?

And finally: some basic truths

EIAs are not an end in themselves they are a way of showing that due regard has been paid to the
general duties.
EIAs should be an integral part of policy development and review, not a one-off or separate exercise.
EIAs are not just about addressing discrimination or adverse impact; they should also positively promote equal
opportunities, improved access, participation in public life and good relations.
A policy should be impact-assessed if it is relevant to equality, with the most relevant policies assessed first and
most thoroughly.
The quality of an EIA is not measured by its page count but by the quality of the analysis, the action
taken as a result and the outcomes achieved through implementation.
The time and effort involved should be in proportion to the relevance of the policy.
Without good evidence, a good EIA will be difficult to achieve.
Lack of data is never an excuse for not assessing impact some data will almost always be available and where
data isnt available it must be actively gathered.
The information and insights that can be gained from involvement and consultation are essential, and
involvement and consultation should also usually be carried out as part of the main policy development process.
EIAs should always include an action plan.
EIAs must always inform the final decision on a policy.
Unless your policy is already perfect for equality (which is highly unlikely), an EIA should lead to policy change.

Positive Action

Positive discrimination: the

default position

It is unlawful to:
treat someone less favourably because of a
protected characteristic
treat someone more favourably because of a
protected characteristic
Exceptions:
Disability
Age
Political parties

Positive action: the general

idea

the Act does not prohibit the use of positive action

measures to alleviate disadvantage experienced by
people who share a protected characteristic, reduce
their under-representation in relation to particular
activities, and meet their particular needs. It will, for
example, allow measures to be targeted at particular
groups, including training to enable them to gain
employment, or health services to address their
needs.
Explanatory notes

Positive action is voluntary

S.158
Positive actions: general
S.159
Positive actions: recruitment and
promotion

Positive actions: general

If P reasonably thinks people with a protected characteristic:
suffer a disadvantage connected to a protected
characteristic
have needs which are different from others
participate in disproportionately low numbers in an
activity
some indication or evidence will be required to show that
one of these statutory conditions applies. It does not,
however, need to be sophisticated data or research.
Employment Code of Practice

 Then P can take any action which is a proportionate

means of achieving the aim of addressing one or more of
those issues
Proportionality involves the balancing of competing
relevant factors
Is the action an appropriate way to achieve the stated aim?
Is the action reasonably necessary to achieve the aim
would it be possible to achieve the aim as effectively by
other actions that are less likely to result in less favourable
treatment of others?

Examples
Police: under-reporting of anti-Semitic crime; evidence of lack
of trust within Jewish community
Positive action: team dedicated to anti-Semitic crime
Positive action: dedicated reporting points for anti-Semitic
crime
British Judo Association: disproportionately low number of
women competitors
Positive action: offer twice as much prize money to women
Positive action: dedicated advertising campaign aimed at
women
Positive action: special offers on training courses for women

Positive action:
recruitment/promotion

Differences:

Does not include positive action to address different needs

The person treated more favourably must be as qualified as
the person treated less favourably
a judgment based on the criteria the employer uses to
establish who is best for the job Explanatory Notes
The employer may not have a policy of treating persons who
share the protected characteristic more favourably
each case must be considered on its merits
Explanatory

Notes

EU law
as a derogation from an individual right laid
down in the Directive [these kinds of provisions]
must be interpreted strictly (Kalanke)
the Directive precludes national rules such as
those in the present case which, where
candidates of different sexes shortlisted for
promotion are equally qualified, automatically
give priority to women in sectors where they are
underrepresented. (Kalanke)

A measure which is intended to give priority in

promotion to women in sectors of the public service
where they are under-represented must be
regarded as compatible with Community law if
it does not automatically and unconditionally give
priority to women when men and women are
equally qualified, and
the candidatures are the subject of an objective
assessment which takes account of the specific
personal situations of all candidates. (Badeck)

Examples
A solicitors firm has disproportionately few women
partners.
it decides to interview all female applicants.
having concluded that a female and male candidate
were both equally qualified for partnership, it decides
to offer the role to the female candidate
An employer has very few employees over the age of 50
it has an open day specifically for older candidates
it decides to restrict applications for a new vacancy to
candidates over 50
it states on its advertising that it specifically
encourages applications from candidates over 50

Conclusion
A valuable opportunity to address disadvantages
But caution:
Burden of proof?
Objective assessment by court/tribunal
If action does not meet the conditions, it will
probably be unlawful discrimination