Part 11Advancement of equality

Chapter 1Public sector equality duty

149Public sector equality duty

(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.

(2)

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).

(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.

(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

(b)

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.

(8)

A reference to conduct that is prohibited by or under this Act includes a reference to—

(a)

a breach of an equality clause or rule;

(b)

a breach of a non-discrimination rule.

(9)

Schedule 18 (exceptions) has effect.

150Public authorities and public functions

(1)

A public authority is a person who is specified in Schedule 19.

(2)

In that Schedule—

  • Part 1 specifies public authorities generally;

  • Part 2 specifies relevant Welsh authorities;

  • Part 3 specifies relevant Scottish authorities.

(3)

A public authority specified in Schedule 19 is subject to the duty imposed by section 149(1) in relation to the exercise of all of its functions unless subsection (4) applies.

(4)

A public authority specified in that Schedule in respect of certain specified functions is subject to that duty only in respect of the exercise of those functions.

(5)

A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.

151Power to specify public authorities

(1)

A Minister of the Crown may by order amend Part 1, 2 or 3 of Schedule 19.

(2)

The Welsh Ministers may by order amend Part 2 of Schedule 19.

(3)

The Scottish Ministers may by order amend Part 3 of Schedule 19.

(4)

The power under subsection (1), (2) or (3) may not be exercised so as to—

(a)

add an entry to Part 1 relating to a relevant Welsh or Scottish authority or a cross-border Welsh or Scottish authority;

(b)

add an entry to Part 2 relating to a person who is not a relevant Welsh authority;

(c)

add an entry to Part 3 relating to a person who is not a relevant Scottish authority.

(5)

A Minister of the Crown may by order amend Schedule 19 so as to make provision relating to a cross-border Welsh or Scottish authority.

(6)

On the first exercise of the power under subsection (5) to add an entry relating to a cross-border Welsh or Scottish authority to Schedule 19, a Minister of the Crown must—

(a)

add a Part 4 to the Schedule for cross-border authorities, and

(b)

add the cross-border Welsh or Scottish authority to that Part.

(7)

Any subsequent exercise of the power under subsection (5) to add an entry relating to a cross-border Welsh or Scottish authority to Schedule 19 must add that entry to Part 4 of the Schedule.

(8)

An order may not be made under this section so as to extend the application of section 149 unless the person making it considers that the extension relates to a person by whom a public function is exercisable.

(9)

An order may not be made under this section so as to extend the application of section 149 to—

(a)

the exercise of a function referred to in paragraph 3 of Schedule 18 (judicial functions, etc);

(b)

a person listed in paragraph 4(2)(a) to (e) of that Schedule (Parliament, devolved legislatures and General Synod);

(c)

the exercise of a function listed in paragraph 4(3) of that Schedule (proceedings in Parliament or devolved legislatures).

152Power to specify public authorities: consultation and consent

(1)

Before making an order under a provision specified in the first column of the Table, a Minister of the Crown must consult the person or persons specified in the second column.

Provision

Consultees

Section 151(1)

The Commission

Section 151(1), so far as relating to a relevant Welsh authority

The Welsh Ministers

Section 151(1), so far as relating to a relevant Scottish authority

The Scottish Ministers

Section 151(5)

The Commission

Section 151(5), so far as relating to a cross-border Welsh authority

The Welsh Ministers

Section 151(5), so far as relating to a cross-border Scottish authority

The Scottish Ministers

(2)

Before making an order under section 151(2), the Welsh Ministers must—

(a)

obtain the consent of a Minister of the Crown, and

(b)

consult the Commission.

(3)

Before making an order under section 151(3), the Scottish Ministers must—

(a)

obtain the consent of a Minister of the Crown, and

(b)

consult the Commission.

153Power to impose specific duties

(1)

A Minister of the Crown may by regulations impose duties on a public authority specified in Part 1 of Schedule 19 for the purpose of enabling the better performance by the authority of the duty imposed by section 149(1).

(2)

The Welsh Ministers may by regulations impose duties on a public authority specified in Part 2 of Schedule 19 for that purpose.

(3)

The Scottish Ministers may by regulations impose duties on a public authority specified in Part 3 of Schedule 19 for that purpose.

(4)

Before making regulations under this section, the person making them must consult the Commission.

154Power to impose specific duties: cross-border authorities

(1)

If a Minister of the Crown exercises the power in section 151(5) to add an entry for a public authority to Part 4 of Schedule 19, the Minister must include after the entry a letter specified in the first column of the Table in subsection (3).

(2)

Where a letter specified in the first column of the Table in subsection (3) is included after an entry for a public authority in Part 4 of Schedule 19, the person specified in the second column of the Table—

(a)

may by regulations impose duties on the authority for the purpose of enabling the better performance by the authority of the duty imposed by section 149(1), subject to such limitations as are specified in that column;

(b)

must in making the regulations comply with the procedural requirement specified in that column.

(3)

This is the Table—

Letter

Person by whom regulations may be made and procedural requirements

A

Regulations may be made by a Minister of the Crown in relation to the authority's functions that are not devolved Welsh functions.

The Minister of the Crown must consult the Welsh Ministers before making the regulations.

Regulations may be made by the Welsh Ministers in relation to the authority's devolved Welsh functions.

The Welsh Ministers must consult a Minister of the Crown before making the regulations.

B

Regulations may be made by a Minister of the Crown in relation to the authority's functions that are not devolved Scottish functions.

The Minister of the Crown must consult the Scottish Ministers before making the regulations.

Regulations may be made by the Scottish Ministers in relation to the authority's devolved Scottish functions.

The Scottish Ministers must consult a Minister of the Crown before making the regulations.

C

Regulations may be made by a Minister of the Crown in relation to the authority's functions that are neither devolved Welsh functions nor devolved Scottish functions.

The Minister of the Crown must consult the Welsh Ministers and the Scottish Ministers before making the regulations.

Regulations may be made by the Welsh Ministers in relation to the authority's devolved Welsh functions.

The Welsh Ministers must consult a Minister of the Crown before making the regulations.

Regulations may be made by the Scottish Ministers in relation to the authority's devolved Scottish functions.

The Scottish Ministers must consult a Minister of the Crown before making the regulations.

D

The regulations may be made by a Minister of the Crown.

The Minister of the Crown must consult the Welsh Ministers before making the regulations.

(4)

Before making regulations under subsection (2), the person making them must consult the Commission.

155Power to impose specific duties: supplementary

(1)

Regulations under section 153 or 154 may require a public authority to consider such matters as may be specified from time to time by—

(a)

a Minister of the Crown, where the regulations are made by a Minister of the Crown;

(b)

the Welsh Ministers, where the regulations are made by the Welsh Ministers;

(c)

the Scottish Ministers, where the regulations are made by the Scottish Ministers.

(2)

Regulations under section 153 or 154 may impose duties on a public authority that is a contracting authority within the meaning of the Public Sector Directive in connection with its public procurement functions.

(3)

In subsection (2)—

“public procurement functions” means functions the exercise of which is regulated by the Public Sector Directive;

“the Public Sector Directive” means Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended from time to time.

(4)

Subsections (1) and (2) do not affect the generality of section 153 or 154(2)(a).

(5)

A duty imposed on a public authority under section 153 or 154 may be modified or removed by regulations made by—

(a)

a Minister of the Crown, where the original duty was imposed by regulations made by a Minister of the Crown;

(b)

the Welsh Ministers, where the original duty was imposed by regulations made by the Welsh Ministers;

(c)

the Scottish Ministers, where the original duty was imposed by regulations made by the Scottish Ministers.

156Enforcement

A failure in respect of a performance of a duty imposed by or under this Chapter does not confer a cause of action at private law.

157Interpretation

(1)

This section applies for the purposes of this Chapter.

(2)

A relevant Welsh authority is a person (other than the Assembly Commission) whose functions—

(a)

are exercisable only in or as regards Wales, and

(b)

are wholly or mainly devolved Welsh functions.

(3)

A cross-border Welsh authority is a person other than a relevant Welsh authority (or the Assembly Commission) who has any function that—

(a)

is exercisable in or as regards Wales, and

(b)

is a devolved Welsh function.

(4)

The Assembly Commission has the same meaning as in the Government of Wales Act 2006.

(5)

A function is a devolved Welsh function if it relates to—

(a)

a matter in respect of which functions are exercisable by the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government, or

(b)

a matter within the legislative competence of the National Assembly for Wales.

(6)

A relevant Scottish authority is a public body, public office or holder of a public office—

(a)

which is not a cross-border Scottish authority or the Scottish Parliamentary Corporate Body,

(b)

whose functions are exercisable only in or as regards Scotland, and

(c)

at least some of whose functions do not relate to reserved matters.

(7)

A cross-border Scottish authority is a cross-border public authority within the meaning given by section 88(5) of the Scotland Act 1998.

(8)

A function is a devolved Scottish function if it—

(a)

is exercisable in or as regards Scotland, and

(b)

does not relate to reserved matters.

(9)

Reserved matters has the same meaning as in the Scotland Act 1998.

Chapter 2Positive action

158Positive action: general

(1)

This section applies if a person (P) reasonably thinks that—

(a)

persons who share a protected characteristic suffer a disadvantage connected to the characteristic,

(b)

persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or

(c)

participation in an activity by persons who share a protected characteristic is disproportionately low.

(2)

This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—

(a)

enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,

(b)

meeting those needs, or

(c)

enabling or encouraging persons who share the protected characteristic to participate in that activity.

(3)

Regulations may specify action, or descriptions of action, to which subsection (2) does not apply.

(4)

This section does not apply to—

(a)

action within section 159(3), or

(b)

anything that is permitted by virtue of section 104.

(5)

If section 104(7) is repealed by virtue of section 105, this section will not apply to anything that would have been so permitted but for the repeal.

(6)

This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.

159Positive action: recruitment and promotion

(1)

This section applies if a person (P) reasonably thinks that—

(a)

persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or

(b)

participation in an activity by persons who share a protected characteristic is disproportionately low.

(2)

Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—

(a)

overcome or minimise that disadvantage, or

(b)

participate in that activity.

(3)

That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.

(4)

But subsection (2) applies only if—

(a)

A is as qualified as B to be recruited or promoted,

(b)

P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and

(c)

taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

(5)

“Recruitment” means a process for deciding whether to—

(a)

offer employment to a person,

(b)

make contract work available to a contract worker,

(c)

offer a person a position as a partner in a firm or proposed firm,

(d)

offer a person a position as a member of an LLP or proposed LLP,

(e)

offer a person a pupillage or tenancy in barristers' chambers,

(f)

take a person as an advocate's devil or offer a person membership of an advocate's stable,

(g)

offer a person an appointment to a personal office,

(h)

offer a person an appointment to a public office, recommend a person for such an appointment or approve a person's appointment to a public office, or

(i)

offer a person a service for finding employment.

(6)

This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.