The coronavirus pandemic has created new challenges for local governments and those providing public service. We know that the coronavirus has a disproportionate impact on particular communities and that it has exacerbated the existing structural disadvantages in our country.
As public organisations, our response to coronavirus must recognise these unequal impacts, ensuring that measures put in place now do not lead to an increase in discrimination and disadvantage in the years to come.
The public sector equality duty (PSED) requires and enables you to make decisions in a fair, transparent and accountable way, considering the needs and rights of different members of our communities. Integrating an assessment of equality implications from the very start of a new policy saves time and helps prevent costly mistakes.
When done well, compliance with the duty helps us to make fairer and more inclusive decisions – which, ultimately, are better decisions. This minimises the risk of future legal action and ensures that you make best use of your resources.
This guide will help you to strengthen your work to protect people in the most vulnerable situations in society, upholding our country’s place as a world-leader in human rights and helping us all shape the ‘new normal’ so that no one is left behind.
The PSED requires you, when carrying out public functions, to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations. This duty applies to any activity of your organisation.
You need to demonstrate due regard at the beginning and throughout the process. Due regard cannot be retrospective and you must provide evidence to demonstrate it has occurred throughout the decision making and implementation process.
This guide outlines the steps that you should take to have due regard to the aims in the general equality duty and how you can make sure you’re applying this when thinking through your response and future planning in response to coronavirus.
At the earliest stage of the development of a proposed policy or the revision of an existing policy you should take the following steps:
- Identify if, and how, the duty applies
- Collect equality evidence
- Assess the potential impact by considering whether the equality evidence indicates potential differential impact on protected characteristic groups or provides an opportunity to improve equality in an area, by asking:
- Does the proposed policy eliminate discrimination?
- Does the proposed policy contribute to advancing equality of opportunity?
- Does the proposed policy affect good relations?
- Take account of the results of the assessment in developing the proposal
- Ensure decision makers have due regard to the results of the assessment when making the final decision about the policy and its implementation
- Document decisions and how due regard formed part of that decision
- Publish results of the assessment
- Continually monitor the actual impact of the policy, reviewing and amending as necessary
The general equality duty
The broad aim of the general equality duty is to integrate consideration of the advancement of equality and non-discrimination into the day-to-day business of all bodies subject to the duty.
Its roots go back to 1999 and the Independent Inquiry into the murder of the black teenager Stephen Lawrence and findings of institutional racism in the Metropolitan Police. The general equality duty is intended to accelerate progress towards equality by placing a responsibility on bodies subject to the duty to consider how they can work to tackle systemic discrimination and disadvantage affecting people with particular protected characteristics.
The general equality duty aims to shift the responsibility from individuals to organisations. It places an obligation on bodies, when they are carrying out public functions, to have due regard to the need to the three aims of the equality duty, which are to:
- Eliminate unlawful discrimination, harassment and victimisation and other conduct that is prohibited by the Equality Act 2010,
- Advance equality of opportunity between people who share a relevant protected characteristic and those who don’t, and
- Foster good relations between people who share a relevant protected characteristic and those who don’t.
The general equality duty sets out the list of ‘relevant protected characteristics’ for the purposes of the second and third aim of the duty. This includes all the protected characteristics, except marriage and civil partnership.
For more detailed information, read our technical guidance.
How to assess equality impact
The term ‘policy’ is used as shorthand for any activity of your organisation. It should be understood to cover the full range of your policies, provisions, criteria, functions, practices and activities, including the delivery of services – essentially everything you do.
Everything you do in response to coronavirus will need to be assessed against each aim of the duty for a range of protected characteristic groups.
Step 1: Understand the aims of the policy, and how these relate to equality
You should assess equality impact before a decision is made on whether to apply the policy.
How much assessment a proposed or revised policy needs depends on the relevance of the policy to particular protected characteristic groups and the potential impact of the policy on them.
The three aims in the general equality duty may be more relevant to some decisions than others, and they may be more relevant to some protected characteristic groups than others. However, it is likely that everything you do in response will need to be assessed against each of the aims of the duty.
Decisions made about the provision of health care for older people will be particularly relevant to the need to eliminate discrimination and advance equality of opportunity. The impact on some protected characteristic groups is likely to be high and the NHS Trust will have to consider the particular impact on older women and men, LGBT people, people from ethnic minorities and disabled people for example.
Step 2: Collect equality evidence
There is no prescribed method for carrying out an assessment of equality impact. However, you should try to generate enough information to allow you to fully consider the three aims of the general equality duty.
Equality evidence can include internal information, external research or national data. Where there are gaps in evidence for particular groups, nationally or locally, you should consult and involve equality groups and communities to understand their experiences, needs, and any disadvantages and barriers they face in their lives. Where it is not possible to gather new information in time to inform the assessment, you should consider including such actions in your plans to monitor and review the impact of your policy. A lack of evidence should never be used as a reason for inaction.
Relevance and proportionality are key and the extent of evidence gathering involvement and consultation should be proportionate to the size and resources in your organisation and the significance of the issue.
Step 3: Assessing impact
Once you have collected relevant evidence, you need to apply this to the policy as it is being developed or reviewed. At each stage of the development process, you must judge what the likely effect will be and whether changes are needed.
We recommend that you assess the impact of your proposals against the three aims of the general duty for each relevant protected characteristic group.
When considering whether the policy eliminates discrimination, you should consider if evidence suggests that the policy:
- may result in less favourable treatment for particular groups,
- may result in indirect discrimination, harassment or victimisation
- may lead to discrimination arising from disability, and
- builds in reasonable adjustments where these may be needed.
When considering how your proposal contributes to advancing equality of opportunity, you should consider whether it will help you to:
- remove or minimise disadvantage
- meet the needs of different groups
- encourage increased participation of particular groups, and
- take account of disabled people’s impairments.
When considering how your proposal will affect good relations, you should consider whether it will help you to:
- tackle prejudice and
- promote understanding.
It is not sufficient to state that a proposal will benefit everyone, and therefore people with protected characteristics will automatically benefit. Specific steps will sometimes be required to address existing disadvantage, meet different needs or accommodate difference and diversity.
When developing a policy to respond to increases in gender-based violence during the pandemic, you will need to assess the potential impact of your proposals on women from ethnic minorities, as well as LGBT and disabled women and children. An effective impact assessment will help you to be aware of any needs of particular groups and the likely wider effects of implementing your proposed policy.
Step 4: Take into account the results of the assessment
Having considered potential impact, you should be in a position to make an informed judgement on what should be done to develop your policy further.
There may be no major change required if the assessment has not identified any potential for discrimination or adverse impact, and all opportunities to advance equality and foster good relations have been taken.
However, your proposal may need to be adjusted to remove barriers or disadvantages for particular protected characteristic groups, to advance equality or to foster good relations. It may be possible to remove or change a particular aspect of your proposed policy or to introduce additional measures to reduce or mitigate any risk of potential negative impact.
You propose a response to the increase in domestic abuse during the pandemic. As part of your assessment of equality impact, you identify that women and children with learning disabilities could be disproportionately affected by COVID-19. They also require information about domestic abuse and specialist support services to be available in Easy Read. You decide to publish all information about and related to the implementation of your policy in Easy Read, and to promote it through organisations providing services for people with learning disabilities. You also decide to provide guidance about the public health protection measures that must be taken when supporting women and children with learning disabilities who have experienced domestic abuse. You set up a system to monitor the impact of your policy on women and children with learning disabilities experiencing domestic abuse and encourage other bodies that you work with to do the same.
You may decide to adopt or continue with your policy, despite the potential for adverse impact. If you do this, you should clearly set out the justifications for doing this and how you believe that this decision is compatible with your obligations under the duty.
Finally, if there are adverse effects that are not justified and cannot be mitigated, you may consider stopping developing your proposals any further. If your proposals or revisions might lead to unlawful discrimination, they should be removed or changed.
Step 5: Decision-makers have due regard to equality
Assessment of equality should not only shape your policy but should be considered fully when a final decision is made on adopting the policy. If you are making a decision about whether to approve or implement a proposed new or revised policy, this will help you have due regard to equality when making your decision.
Decision-makers must in determine whether the assessment of equality impact has been robust enough, and gives enough information. You need to ensure you are satisfied that you:
- Understand the relevance of the aims in the equality duty to the decisions you are making.
- Have sufficient information on the potential impact of the decision on people with relevant protected characteristics. If not, you will need to decide if further research or consultation is necessary.
- Have considered whether action can be taken to mitigate any identified potential adverse impact of the proposed policy.
- Have considered whether action can be taken to enable the proposed policy to advance equality of opportunity.
A local authority decide to restrict adult care services to people with critical needs. When this was challenged, the Court found that there was no evidence that the duty and its implications had been drawn to the attention of the councillors when they were making decisions. The Court said councillors should have been informed that disabled people would be affected and should have been told about the particular obligations which the Equality Act 2010 imposed on them.
Step 6: Document decisions
The courts have made it clear that public authorities are responsible for collecting evidence to demonstrate they have met the general equality duty. If challenged, it will be difficult for you to persuade a court that you have complied with the general equality duty in the absence of records.
The courts have also made it clear that it is good practice to keep records showing how you have given due regard to the aims of the general equality duty. It is particularly important to keep records showing your reasoning where decisions to take no action to further the aims in the duty have been made despite equality being highly relevant to the decision in question.
When deciding what records to keep and what information to publish, you should also take into account:
- that transparency about decision-making should help focus the minds of those making decisions on ensuring that they can show that they took all relevant factors into consideration, and
- whether publishing information may help deliver the aims of the duty.
Step 7: Publish results of assessment
Consider publishing the results of your assessment ‘within a reasonable period’ of the decision to apply the policy.
Publishing the results of assessment increases transparency and accountability. We recommend that you publish the results of your assessment of the equality impact as soon as possible after deciding to implement your policy.
The results of your assessment should include:
- the consideration of relevant equality evidence, and
- any changes that were made as a consequence of the considerations.
Step 8: Monitoring actual impact
The actual impact of your policy will only be known once it has been put in place. Therefore, monitoring and review of the actual impact of your policy form an important part of the process and should be clearly set out and understood by everyone involved.
The general equality duty is still applicable to the ongoing operation of your policies. You need to be satisfied, on an ongoing basis, that you are continuing to meet each of the aims of the general equality duty and be able to demonstrate due regard to them.
Last updated: 13 Oct 2020