Enforcing the gender equality duty – A toolkit for individuals

The Gender Equality Duty (GED) which came into force in April 2007, places a legal obligation on public authorities not just to eliminate unlawful gender discrimination and harassment, but also to promote equality of opportunity between women and men. It represents the largest change in gender equality legislation in 30 years and for the first time public bodies have to be proactive in eliminating inequalities between women and men, instead of relying on individuals to take action after discrimination has occurred.

We have designed this toolkit to enable you to take steps to check whether a public authority is complying with the GED and, if not, to call for the authority to comply.

It would be useful to read the England and Wales Code of Practice on the gender equality duty and related guidance found in the section gender equality documents.

What do the duties involve?

The GED consists of two duties – the ‘general duty’ and the ‘specific duties’.

The general duty

Under the GED all public bodies are subject to a general duty. This means that when a public body carries out its functions - such as providing health care, education, housing, transport, social services or local government – it must have due regard to the need to:

Eliminate unlawful sex discrimination and harassment
Promote equality of opportunity between women and men
Eliminate discrimination and harassment in employment and vocational training for transsexual people

The specific duties

Many public bodies are also required to undertake specific duties. These are a series of steps that a public body is legally required to take to meet the duty, including having a Gender Equality Scheme in place by 30th April 2007, setting out its gender equality objectives.

Using the toolkit

Check the public body's legal obligations under GED. If you are unsure whether or not a public body has complied with its legal obligations under the GED, the first step is to check to confirm whether the public body is subject to the specific duties or only to the general duty.

If the public body is subject to the specific duties then you would expect to see:

Evidence that it has gathered information and used this information to decide on its objectives
Evidence that it has consulted with relevant service users and other stakeholders in setting its gender equality objectives
A published version of its gender equality scheme, which must contain its gender equality objectives, usually on its website
Arrangements for gender impact assessing all its new and existing policies.

What if I am not happy with its GED scheme or arrangements?

The GED is legally enforceable but individuals cannot themselves take legal action against public bodies to enforce the specific duties. Enforcement of the general duty can only be achieved by judicial review in the High Court. Responsibility for enforcement of the specific duties resides with the Equality and Human Rights Commission.

However, individuals have an important role to play in ensuring that the GED is implemented effectively. You can usefully remind public bodies of their obligations under the GED, find out whether they are attempting to comply, and let them know that individuals in the community expect the GED to be complied with and real action to be taken on the gender equality issues affecting their employees and service users.

If you feel that the public authority has not complied with the GED the following letters in this toolkit can be downloaded and used as a template and sent to the public body by post or email to remind it of its obligations. Keep copies of all correspondence.

Letter 1 is for use if you feel that a public authority has not complied with the general duty.

Letter 2 could be used if you can’t find a public authority’s Gender Equality Scheme.

Letter 3 could be used if a public authority has a Scheme but it is unclear how stakeholders have been involved or what influence this has had on the actions in the Action Plan.

Letter 4 could be used if you think a public authority’s Gender Equality Scheme does not include the right objectives or actions.

Letter 5 could be used if you have not received a response to your inquiries from a public authority, after sending one of the above letters, and would like to take this further. This letter will take your enquiry to the next stage, by initiating the public authority’s formal complaints procedure.

What if I'm not satisfied with the public authority’s response?

If you have exhausted the formal complaints procedure of the public authority and are still not satisfied with the public authority’s progress in meeting the GED, you may want to consider taking the matter further.

You can put pressure on the public body through the influence of your MP or councillor.

Write to your MP at the House of Commons, London, SW1 0AA. If your complaint is about your local authority, then contact your local councillor.

If the public body in question is covered by an inspectorate, you could also ask your MP or councillor to write to inspectorate. Some examples of inspectorates are: OFSTED (for education), the Healthcare Commission, the Commission for Social Care and Inspection, HM Inspectorates of Police, Prisons and Probation and the Crown Prosecution Service Inspectorate.

If you as an individual have actually suffered personal injustice, hardship or financial loss, due to the public authority not having complied with its GED duties, you could complain to the relevant Ombudsman.

You are also welcome to bring the situation to the attention of the Commission by forwarding details of your initial complaint and all subsequent communications to the Helpline. Due to the large number of public authorities we are monitoring, we will only have the resources to follow up a proportion of the individual complaints we receive. We will use our discretion to prioritise taking up those issues that are likely to have significant impact for men and women.

We will let you know if we are intending to follow up your specific complaint against that authority. In any event, however, we will make use of the information you supply to help us monitor trends, and as part of an evidence base to decide which issues and sectors we need to need to investigate and direct our efforts towards.

Enforcement of the Gender Equality Duty

Virtually every public authority is covered by the Gender Equality Duty, and many thousands of public authorities will be required to produce Gender Equality Schemes, setting out their gender equality objectives. The Commission will be assessing public authorities’ Schemes to see how they meet the GED and will be following the progress of different public bodies in implementing their schemes. The Commission will take targeted enforcement action against public authorities who do not comply.

If, due to the large number of enquires we receive, the Commission has not been able to investigate your enquiry or complaint, there is still the potential for you as an individual, or as part of a group or organisation of individuals, to challenge a public authority in the courts if you have evidence that the general duty is not being met. This would be by means of a judicial review in the High Court in England and Wales or in the Court of Session in Scotland. An individual cannot take legal action against non-compliance with the specific duties.

However, you would need legal advice to enable you to take judicial review proceedings because the legal process is complex and costs can be awarded against the losing party. Any legal advice should be sought quickly because an application for a judicial review must be made promptly, and no later than 3 months after the action or decision of the public body that you are concerned about. Time extensions are rare.

For more information on enforcement of the GED please see Chapter 4 of the England and Wales Gender Equality Duty Code.

Freedom of information

The Freedom of Information Act 2000 gives any person the right to request official information from public authorities. This right is subject to certain exemptions.

The Freedom of Information Act applies to all public bodies including government departments, the police, local authorities, schools and hospitals/surgeries etc. It entitles an individual to be supplied with copies of information, documents and records held by the public authority, subject to certain exemptions.

We suggest that you combine your letter requesting information about the GED with a Freedom of Information Act request because that means that the public authority is under a duty to reply and supply any documents within 20 working days (except where exemptions apply).

There will normally be no charge for making a request for information. It will only be if the request asks for an excessive amount of documentation to be supplied, or the information would take an excessive amount of hours work to be retrieved, that a charge might be levied, in which case the authority would notify you in advance.