Part 11 Advancement of equality

Chapter 1 Public sector equality duty

143 5Public 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) 10advance 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
15must, 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) 20remove or minimise disadvantages suffered by persons who share a
relevant protected characteristic that are connected to that
characteristic;

(b) 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) 25encourage 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) 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
30involves having due regard, in particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.

(5) 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
35that would otherwise be prohibited by or under this Act.

(6) The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• 40pregnancy and maternity;

• race;

• religion or belief;

• sex;

• sexual orientation.

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

(a) a breach of a non-discrimination rule;

(b) a breach of an equality clause or rule.

(8) 5Schedule 18 (exceptions) has effect.

144 Public 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;

• 10Part 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 143(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
5purposes of the Human Rights Act 1998.

145 Power 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) 10The power under subsection (1), (2) or (3) may not be exercised so as to add an
entry—

(a) to Part 1 relating to a relevant Welsh or Scottish authority or a cross-
border Welsh or Scottish authority;

(b) to Part 2 relating to a person who is not a relevant Welsh authority;

(c) 15to 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
20Crown 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
25that 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 143 unless the person making it considers that the extension relates to
a person by whom a public function is exercisable.

146 Power to specify public authorities: consultation and consent

(1) 30Before 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.

(2) Before making an order under section 145(2), the Welsh Ministers must—

(a) obtain the consent of a Minister of the Crown, and

(b) consult the Commission.

(3) 15Before making an order under section 145(3), the Scottish Ministers must—

(a) obtain the consent of a Minister of the Crown, and

(b) consult the Commission.

147 Power to impose specific duties

(1) A Minister of the Crown may by regulations impose duties on a public
20authority specified in Part 1 of Schedule 19 for the purpose of enabling the
better performance by the authority of the duty imposed by section 143(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
25specified in Part 3 of Schedule 19 for that purpose.

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

148 Power to impose specific duties: cross-border authorities

(1) If a Minister of the Crown exercises the power in section 145(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) 5Where 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
10by section 143(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—

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

149 Power to impose specific duties: supplementary

(1) Regulations under section 147 or 148 may require a public authority to
5consider 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) 10the Scottish Ministers, where the regulations are made by the Scottish
Ministers.

(2) Regulations under section 147 or 148 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) 15In 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
  20coordination 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 147 or 148(2)(a).

(5) A duty imposed on a public authority under section 147 or 148 may be
25modified 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.

150 Enforcement

A failure in respect of a performance of a duty imposed by or under this
5Chapter does not confer a cause of action at private law.

151 Interpretation

(1) This section applies for the purposes of this Chapter.

(2) A relevant Welsh authority is a person whose functions—

(a) are exercisable only in or as regards Wales, and

(b) 10are wholly or mainly devolved Welsh functions.

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

(a) is exercisable in or as regards Wales, and

(b) is a devolved Welsh function.

(4) 15A 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
20for Wales.

(5) 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) 25whose functions are exercisable only in or as regards Scotland, and

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

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

(7) 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.

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

5Chapter 2 Positive action

152 Positive action: general

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

(a) persons who share a protected characteristic suffer a disadvantage
10connected 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) 15This 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) 20enabling 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) 25action within section 153(3), or

(b) anything that is permitted by virtue of section 99.

(5) If section 99(7) is repealed by virtue of section 100, 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
30enactment other than this Act.

153 Positive 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) 5participation 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) 10overcome 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) 15But subsection (2) applies only if—

(a) A is as qualified as B to be recruited or promoted, and

(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.

(5) 20“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) 25offer 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
30for 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.