Public Sector Equality Duty Research Articles

R (TTT) v Michaela Community Schools Trust

Michaela School is avowedly secular and operates under a very disciplined regime. It has a high proportion of Muslim pupils, and in 2023 the school's governing body decided to prohibit pupils from performing prayer rituals on its premises – regardless of religion – after the Headteacher had banned prayer rituals as an interim measure. Muslims are required to pray five times a day; and while TTT, a Muslim, accepted that the requirements of the school day meant that she could not always pray during the appropriate period, she wanted to perform the midday prayer (Duhr) in autumn and winter during the school lunch break – which, she argued, was ‘free time’. It was argued for TTT that the school's refusal violated her rights under Article 9 ECHR (Ground 1); that the policy discriminated indirectly against Muslims, contrary to section 85(2)(d) and/or (f) of the Equality Act 2010 read with section 19 (Ground 2); and that in introducing the policy the school had failed to have ‘due regard’ to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations between Muslims and non-Muslims, contrary to the public sector equality duty in section 149 of the 2010 Act (Ground 3). She also claimed to have been subject to two procedurally unfair ‘fixed terms of exclusion’ because she had not been allowed to respond to the allegations against her before her exclusions (Ground 4).

Enhancing the Accessibility of Pedestrian Environments: Critical Reflections on the Role of the Public Sector Equality Duty

Enhancing the Accessibility of Pedestrian Environments: Critical Reflections on the Role of the Public Sector Equality Duty

Implementation Behaviours and a Strength-Based Approach to Equality and Human Rights Implementation

Abstract The introduction of the Public Sector Equality Duty (PSED) and the Human Rights Act were intended to establish an equality and human rights culture within public authorities. However, so far this culture has failed to take hold. Both utilise an enforcement pyramid model of regulation, where penalties increasingly progress until non-compliers comply. Using original empirical data this article explores the implementation of equality and human rights law within public authorities via semi-structured interviews. It finds three different implementation profiles: strong implementation (where individuals make the most of the resources they have and drive ever deeper implementation), mixed implementation (where individuals oscillate between deeper and perfunctory implementation), and weak implementation (where individuals avoid taking meaningful action due to feeling overwhelmed and in need of rescue). On the basis of these behaviours, it is argued that an alternative strength-based model of regulation is needed to supplement the enforcement pyramid and truly establish an equality and human rights culture within public authorities.

Minority Women Incarcerated: The Vulnerabilities of Traveller Women in the Irish Criminal Justice System

Women comprise a minority of the prison population, representing 10.6% of the prison population in Ireland in 2020. An issue of pressing concern is the over-representation of minority ethnic women among female prisoners. In Ireland, Irish Traveller women are 22 times more likely to be imprisoned than non-Traveller women. Their risk of imprisonment is greater than Traveller men who are over-represented among male prisoners. Traveller women in contact with the criminal justice system are likely to have experienced extreme deprivation, social exclusion, and current and historical/intergenerational discrimination. This article draws on evidence from published literature and a qualitative study undertaken by the authors to examine the vulnerabilities of Traveller women in prison in Ireland and the multiple and complex reasons for their over-representation in prison. To improve the situation of Traveller women in prison, the UN Bangkok Rules can be used to guide the development of relevant legislation, procedures, policy, and action plans. Traveller women in prison must not be overlooked in the implementation of the Public Sector Equality and Human Rights Duty, which places a legal obligation in Ireland on prison authorities to promote equality, prevent discrimination, and protect the human rights of all affected by their policies and plans.

COVID-lockdown in English higher education March–June 2020. Were disabled students’ needs forgotten?

ABSTRACT The COVID-19 pandemic forced HE Providers (HEPs) to radically transition traditional teaching and assessment to 100% remote delivery. UK Governments’ policies widening HE participation have yielded a significant minority of disabled students (15%). This study investigated English HEPs (n = 133) transition advice to academics regarding these students’ needs. Of 104 respondents, 16% provided new advice regarding remote teaching for disabled students, 22% regarding remote assessment; only 2 mentioned they had conducted Equality Impact Assessments (EIAs) about the changes. Disabled students’ needs appear forgotten. Four response models were identified: Keep Calm and Carry On, Meet an Existential Threat, All Hands to the Pumps, An Opportunity for Change. Emergent good practice examples are given. Most English HEPs should urgently conduct EIAs under their legal Anticipatory Public Sector Equality Duty. The whole sector needs to better institutionalise delivering to disabled students’ needs through effective inclusivity policy implementation, and educating academics and academic management.

The ‘cumulative impact’ problem in social welfare: some legal, policy and theoretical solutions

ABSTRACT Notwithstanding its central place in social security policy-making and in the experiences of those on the receiving end of welfare reforms, cumulative impact is an under interrogated and theorised problem in social welfare scholarship. This paper seeks to address this in two ways. First, it draws on the lessons of the comparatively well-developed literature on cumulative impact in environmental studies to: (i) identify different dimensions of cumulative impact and (ii) best practices in undertaking cumulative impact assessments. Second, it argues that having regard to cumulative impact is not just good policy-making, but is also a legal obligation. To discharge the ‘Public Sector Equality Duty’ under s.149 Equality Act 2010, a public authority needs to have due regard to clear cumulative impacts between measures. In the context of social security policy-making, a failure to undertake enquiries to establish cumulative impacts between policies is likely to breach the PSED. Drawing on examples from the UK Government’s Welfare Reform Act 2012 and the Welfare Reform and Work Act 2016 throughout, the paper makes the case for both the importance of addressing cumulative impact in policymaking, and the need for greater interrogation by social welfare scholarship.

Does the law think that black lives matter? A reflection upon the role of the public sector equality duty in promoting racial equality before the law

ABSTRACT Racism is often perceived as a conscious choice an individual makes to abuse another, or an explicit statement that a group of people are inferior to another. Less often is racism construed as a product of institutional culture. This inability to accurately depict the problem has stunted the ability of lawmakers to craft legislation that will adequately combat racism. This paper explores attempts in the recent past that have provided remedies for those subject to racism rather than addressing its systemic causes. S149 of the Equality Act in the United Kingdom bucked this trend by obligating public authorities to take proactive steps to eliminate discrimination. This paper examines the challenges the provision has faced, explores how it could work to prevent racism in the coming years, and argues that it remains important today.

Palliation or protection: How should the right to equality inform the government’s response to Covid-19?

This article examines what role equality law can play in addressing the inequalities created and exacerbated by the British government’s response to the Covid-19 pandemic. We argue that while there is great potential in existing legislation, there is a need for both policy-makers and courts to apply a more searching and nuanced understanding of the right to equality if this potential is to be realised. We begin by examining how the burdens of confronting this pandemic as a society fall more heavily on those already at the bottom end of the scale of inequality. We then ask whether and to what extent the current legal structures protecting the right to equality can be mobilised to redress such inequalities, paying particular attention to the Public Sector Equality Duty under the Equality Act 2010 and on the Human Rights Act 1998. Finally, we argue that, to fulfil the requirements of both these legal duties, the courts should subject policies and practices to close scrutiny under the four-dimensional approach. When making and operationalising policies around Covid-19, substantive equality requires account to be taken simultaneously of the four dimensions of inequality to the greatest extent possible.

Privatising land in England

PurposeThis paper aims to analyse the extent to which privatising – or denationalising land – has legal and policy effects.Design/methodology/approachIt applies the law in context scholarship to the question of land privatisation.FindingsOf all the recent privatisations in England, the most valuable, and yet least recorded, is of land. According to one estimate, two million hectares or 10 per cent of the Britain landmass, left the public sector for private ownership between 1979 and 2018. Privatisations include land that is sold, leased or where a public body changes its status. This paper aims to explore these privatisations, considering them as denationalisations, concluding that the effects are most significant in housing where the differences between social and private renting in relation to rents, the security of tenure and housing quality are striking. Moreover, although other public law restraints on the state-owned property are often limited, they are also still significant, facilitating scrutiny, particularly in combination with the public sector equality duty or site-specific duties for libraries, allotments or playing fields. All the sites disposed of to private developers, landlords and companies have lost these protections.Originality/valueThis is the first time this question has been considered in this way from a legal perspective.

Increasing Gender Diversity in Higher Education Leadership: The Role of Executive Search Firms

Women are under-represented in leadership roles in United Kingdom Higher Education Institutions (HEIs). Existing scholarship focuses on institutional barriers, which include cognitive bias and entrenched homosocial cultures, rather than external factors such as the use of executive search firms (ESFs) in recruitment and selection. Recent research indicates that the use of ESFs is increasing for senior HEI appointments. This analysis offers insights on these firms’ involvement from a gender equality perspective, based on the results from a study that used a ‘virtuous circle’ approach to research and knowledge exchange. The requirement for HEIs to pay ‘due regard’ to equality considerations under the Public Sector Equality Duty provides a framework for analysis. This paper provides new insights on the dynamics within recruitment processes when ESFs are involved and on how a legislative approach can leverage better equality outcomes.

Privatising Land in England

Of all the recent privatisations in England, the most valuable, and yet least recorded, is of land. According to one estimate, two million hectares, or ten percent of the Britain landmass, left the public sector for private ownership between 1979 and 2018. Privatisations include land that is sold, leased or where a public body changes its status. This paper explores these privatisations, considering them as denationalisations, concluding that the effects are most significant in housing where the differences between social and private renting in relation to rents, security of tenure and housing quality are striking. Moreover, although other public law restraints on state-owned property are often limited, they are also still significant, facilitating scrutiny, particularly in combination with the public sector equality duty or site-specific duties for libraries, allotments or playing fields. All the sites disposed of to private developers, landlords and companies have lost these protections.

The Public Sector Equality Duty: Enforcing Equality Rights Through Second-Generation Regulation

Abstract This article reviews the effectiveness of the Public Sector Equality Duty (PSED), based on insights from debates within equality law and theories of regulation. Drawing on examples of its practical implementation, the strengths and weaknesses of the ‘reflexive turn’ in equality law are assessed. While recognising the concerns raised regarding second-generation regulation, such as its inability to address structural power relations, the article proposes that this form of regulation has some merit when applied to equality law. First, the participatory processes that it produces can in themselves be viewed as equality outcomes, particularly when equality is understood to encompass the participation and inclusion of vulnerable groups. Second, this form of regulation can introduce change within organisations, proving reasonably resilient once embedded in standards of good management practice. The paper does not suggest that the processes of the PSED cannot be improved and instead proposes a number of ways in which second-generation regulation can be made more effective. However, it argues that examples of the implementation of the PSED show how reflexive regulation can provide more effective and resilient means to support the realisation of equality and social justice than at first appears.

A FAITH SECTOR EQUALITY DUTY: HOW AND WHY THE CHURCH COULD AND SHOULD ADOPT THE PUBLIC SECTOR EQUALITY DUTY TO INVIGORATE THE RIGHTS OF TRANS PEOPLE IN THE UK

Despite recent legislative and policy improvements regarding transgender equality, levels of awareness and understanding vary significantly. The Equality Act 2010 extended protection of trans rights through the Public Sector Equality Duty (PSED), forming part of what Cathi Albertyn terms ‘transformative equality’. The Church constitutes the statistically major faith group in the UK, with the Church of England holding the greatest claim to quasi-public status. This paper therefore proposes that the Church of England volunteers to bring itself into line with the public sector by adopting its own version of the PSED, or a ‘Faith Sector Equality Duty’. Commitment to such an overarching ethos would effectively constitute an optimal form of ‘enforced self-regulation’ and so invigorate the rights of trans people in the UK.

A duty to value: Implementing the public sector equality and human rights duty

A duty to value: Implementing the public sector equality and human rights duty

Women secondary head teachers in England

The underrepresentation of women in secondary school headship in England and elsewhere is an early and longstanding theme in the women and gender in educational leadership literature. The purpose of this article is to report findings from a statistical survey of secondary school head teachers across England. Data available in the public domain on school websites have been collated during a single academic year to present a new picture of where women lead secondary schools in England. Mapping the distribution of women by local authority continues to show considerable unevenness across the country. This article argues that a geographical perspective still has value. It might influence the mobilization of resources to targeted areas and ultimately result in women’s proportionate representation in school leadership. Alongside this is a need for schools and academy trusts to comply with the Public Sector Equality Duty.

Using equality legislation as a sword

This article argues that there is potential for equality legislation to be used proactively to contest attempts by public authorities to remove funding from groups who share protected characteristics. This follows on from the first empirical study of the impact of the Equality Act 2010 on charities in the United Kingdom, conducted by the Charity Law and Policy Unit, University of Liverpool (the study). One finding of the study was that charities in the United Kingdom are using the Act to challenge local government funding cuts. Strict austerity measures have led to widespread funding cuts for service provision. As many charities are commissioned by local governments to provide social services, this has had a direct impact on the charities’ funding. However, some charities and service users found a useful sword in the Equality Act and predecessor legislation. They used judicial reviews to challenge whether local governments have properly fulfilled their Public Sector Equality Duty when making the funding cuts. In some cases successful challenges prevented or restored funding cuts, while others simply resulted in the same cuts after a better process. However, cuts to legal aid and judicial review reforms may well blunt this sword. Charities’ motivations and successes, the impact of judicial review and the uncertain future for the strategy are discussed.

The best education money can buy? Disabled university students and the Equality Act 2010

Amid the financial cuts in the public sector and changing academic environment, this article considers key aspects of the legal and regulatory framework within which a university is obliged to make ‘reasonable adjustment’ for a disabled student. In particular, we examine the scope of the 2010 Equality Act for promoting inclusive higher education, focusing on the duty to make reasonable adjustments and the public-sector equality duty. At the same time, it is pertinent to consider the relationship between the equality framework and alternative mechanisms whereby students can challenge the reasonableness of university procedure and decision-making, in particular the role of the Office of the Independent Adjudicator for Higher Education. Finally, the article considers the potential for consumer protection legislation to provide an additional focus on achieving an inclusive educational environment for disabled university students.

Using Disability Law to expand Academic Freedom for Disabled Researchers in the United Kingdom

AbstractWe consider the findings of a study of the experiences of Postgraduate Researchers with Disabilities and explore how this relates to academic freedom. Drawing upon the provisions of the Public Sector Equality Duty and Indirect Discrimination within the Equality Act (2010), we note that a range of existing public policy practices, such as the operation of the REF, are likely to be in breach of these obligations. We recommend revisions to existing practice that speak more widely to the general concern of academic freedom, suggesting that a consideration of anti‐discrimination law – rather than a purely intellectually focussed agenda – represents a pragmatic means towards shaping the inclusivity of higher education policy going forwards.

Litigating the Public Sector Equality Duty: The Story So Far: Table 1.

This paper considers the development and judicial application of the Public Sector Equality Duty now found in section 149 Equality Act 2010, previously in a variety of forms in the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975. It identifies a number of emerging themes in the jurisprudence concerned, in particular, with the relationship between the PSED and Wednesbury review, the extent of the information-gathering obligation it imposes, the delegability of PSED decision-making and the timing of PSED challenge. It then considers the uncertainties which remain including, in particular, the application of the duty to various categories of decision-making, and concludes by assessing the impact of the PSED on challenges to ‘cuts’ cases arising from the reductions to public sector funding, and on domestic equality jurisprudence.

Devolution and disabled workers: the experiences of union equality representatives in Wales

In contrast to the Coalition Government, the Welsh Assembly embraced the original objectives of the Public Sector Equality Duty and provided financial support to develop a network of union equality representatives (ERs). With reference to ER support for disabled workers, this article examines the role of devolution in equalities bargaining.