Sex Discrimination and Public Bodies

Under the Sex Discrimination Act 1975 (‘SDA’), it is now unlawful for public authorities to discriminate on grounds of sex and public authorities are under a positive duty to ensure gender equality when carrying out their functions. These provisions, introduced by the Equalities Act 2004, came into force on the 6 April 2007.

The definition of ‘public authority’ includes any person who has a function of a public nature. Therefore it includes local authorities, government departments, schools, colleges and universities, NHS, other public funded bodies. It may also include private and voluntary organisations carrying out a public function on behalf of a public authority.

Discrimination by public authorities

The SDA makes it unlawful for a public authority to directly or indirectly discriminate (or victimise) or commit acts of harassment on grounds of sex. This provision is similar to an equivalent provision in race and disability legislation.

This prohibition is subject to a limited number of exemptions, such as the provision of single sex services where such service if required, for example women’s refuges. It also exempts action taken for the purpose of assisting one sex to overcome disadvantage or the effects of discrimination.

A person who believes that he / she has been discriminated against by a public authority may bring County Court proceedings.

Gender Equality Duty
According to the Equal Opportunities Commission (‘EOC’, which is now part of the Equality and Human Rights Commission) the gender equality duty imposed on public authorities is the most significant change to gender equality legislation in 30 years since the introduction of the SDA. The EOC has issued a Gender Equality Duty Code of Practice which includes guidance as to how public authorities are to meet this duty.

The SDA imposes a general statutory duty on public authorities to have ‘due regard’ when exercising their functions to the need to eliminate unlawful direct or indirect discrimination (or victimisation) and harassment and promote equality of opportunity between men and women. This provision is similar to equivalent provisions in race and disability legislation. It will require public authorities to take a proactive approach to meeting the duty.

The SDA further provides a power for specific duties to be imposed upon specified bodies to whom the general duty applies. The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006, imposes specific gender equality duties on selected public authorities including government departments, regulatory bodies, educational bodies, police authorities and the national health service. The specific duties include:

To prepare and publish a gender equalities scheme by 30 April 2007, setting out how the public authority will meet its gender equality duties.
The scheme to set gender equality objectives including addressing the causes of any gender pay gap.
The scheme to include an action plan involving consulting employees, service users and others, gathering and using information, conducting a gender impact assessment of its policies and practices, and setting out measures to achieve the fulfilment of the scheme’s objectives.
The scheme’s objectives and any action plan to be implemented within three years.
The gender equalities scheme to be reviewed and revised every three years
To publish annual progress reports.

Only the EOC and, from Oct 2007, the Commission doe Equality and Human Rights, can bring action to enforce these duties.

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