What is the duty?

General duty

The general duty requires public authorities, in the exercise of their functions, to have due regard to the need to:

• eliminate unlawful discrimination, harassment, victimisation and any other unlawful conduct prohibited by the act
• advance equality of opportunity between people who share and people who do not share a relevant protected characteristic
• foster good relations between people who share and people who do not share a relevant protected characteristic

These are sometimes called the 3 aims of the duty.

The relevant protected characteristics are:

• age
• disability
• gender reassignment
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

Someone has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process or part of a process to reassign their sex by changing physiological or other attributes of sex. Authorities should take care to undertake their assessment by reference to the protected characteristics set out in the act. They should not use  concepts such as gender or gender identity, which are not encoded in the act and can be understood in different ways. 

Marriage and civil partnership is a protected characteristic but not a ‘relevant’ one. This means you have to consider it only in relation to the first aim of the duty. Discrimination because of marriage and civil partnership is only prohibited in relation to the work provisions of the act. This is because the parts of the act covering services and public functions, premises and education do not apply to that protected characteristic. See sections 28(1)(a), 32(1)(b), 84(1)(b), and 90 of the act.

“Having due regard” means properly considering the 3 aims identified in the act, and how they relate to the function you are exercising, and then deciding what weight to give them. It is not a duty to achieve a particular outcome. The level of “due regard” considered sufficient in any particular context depends on the facts. A proportionate approach should be taken to the resources spent on duty compliance, depending on the circumstances of the case and the seriousness of the potential equality impacts on those with protected characteristics.

For example, if you were reforming a personal tax or benefit, you would likely have to assess the 3 aims in some depth. But if you were buying office equipment, your assessment may be brief and limited to the affect on disabled people. You may exercise functions that have no equality impact, but it may then be useful to note that you took the duty into account and did not consider it relevant.

When assessing the equality impacts of a decision, organisations should consider the positive and negative impacts, not just the negative. For example, policies designed to support integration and community cohesion may have a positive impact across a population, even if not targeted at any one group in particular.

“Eliminating unlawful conduct prohibited by the act” means eliminating discrimination, harassment, victimisation, failure to make reasonable adjustments and any other conduct that is prohibited by or under the act.

“Advancing equality of opportunity” means having due regard, in particular, to the need to:

• remove or minimise disadvantages suffered by people due to their relevant protected characteristics
• take steps to meet the different needs of people who share a relevant protected characteristic
• encourage participation in public life or any other activity by underrepresented groups
• take steps to meet the different needs of disabled persons

Considering people’s different needs and taking steps to meet those needs can be relevant to avoiding indirect discrimination. There are specific provisions in the act about making reasonable adjustments for people with disabilities. You can read guidance on the duty to make reasonable adjustments for staff (PDF).  

It is important to note here that the duty to have due regard to the need to advance equality of opportunity is not a duty to put in place positive action measures. Positive action means measures permitted under the act that aim to alleviate disadvantage or under-representation, or to meet the particular needs of those who share a protected characteristic. It may be appropriate to consider positive action as part of the second aim of the duty, where adverse impacts have been identified. However, the duty is not a positive action programme and the use of positive action is voluntary. Positive action must balance the seriousness of the disadvantage suffered, or the extent to which people with a protected characteristic are under-represented, against the impact that the proposed action may have on other people. Further information on positive action can be found in the Equality Hub’s guidance on positive action in the workplace.

“Fostering good relations” means having regard to the need to deal with prejudice and support understanding. For example, some decisions have the power to bring divided groups together and to support their mutual understanding. Other decisions may inadvertently cause people with one protected characteristic to blame people with another for a social problem.

Specific duties

The specific duties are intended to enable more effective performance of the general duty, and to standardise some of the work of general duty holders. The specific duties complement the general duty but do not replace it.

For English public authorities and those with cross-border responsibilities, the specific duties are shown in the table below. An authority’s duties depend on how many people it employs.