The Public Sector Equality Duty for charities – It’s all about the impact assessment

The Public Sector Equality Duty (PSED), established under the Equality Act 2010, mandates that public authorities and those exercising public functions consider how their decisions and policies affect people with protected characteristics. For charities that provide public services or work closely with public authorities, this obligation needs to extend to requiring careful consideration of their external-facing policies. Failure to do so can lead to unintentional discrimination, where policies may disadvantage certain groups with protected characteristics recognised by the Equality Act, unless there is a clear, objective justification for the contents of the policy.

One of the key mechanisms for ensuring compliance with the PSED is conducting an Equality Impact Assessment (EIA). This process helps identify and mitigate potential disadvantages caused by a charity’s provisions, criteria, or practices (PCPs) in policies such as complaints procedures, service delivery protocols, or recruitment guidelines. In this article I address how the PSED applies to charities, the importance of EIAs, and practical steps to avoid unintended detrimental harm to individuals with protected characteristics.

Understanding the Public Sector Equality Duty

The PSED requires organisations exercising public functions to have due regard to three central objectives:

1. Elimination of unlawful discrimination, harassment, and victimisation
2. Advancement of equality of opportunity between those who share protected characteristics and those who do not
3. Fostering good relations between individuals from different protected groups.

For charities, this means that even though they may not be classified as public authorities, when they provide services to the public, the PSED applies. Policies that appear neutral can, in practice, have disproportionate adverse impacts on individuals based on characteristics such as age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation. Recognising and justifying these impacts is essential for maintaining compliance with equality law and ensuring the charity’s mission aligns with principles of equality, which are also included in the 7 pillars of good governance under the Charity Governance Code (Equality, Diversity and Inclusion).

The role of equality impact assessments

An Equality Impact Assessment (EIA) is a vital tool for ensuring that the PSED obligations are met. An EIA allows a charity to systematically review its policies to understand their impact on people with protected characteristics. By identifying any discriminatory outcomes, before the policy is put to the board for approval, the charity can take steps to mitigate them, ensuring that policies are fair and inclusive.

Charities may often find that their policies contain provisions, criteria, or practices (PCPs) that, although well-intentioned, disadvantage certain protected characteristics groups. Under the Equality Act, such disadvantages are unlawful unless the charity can demonstrate an objective justification — a legitimate aim and proportionate means of achieving that legitimate aim, which involves a balancing of the necessity for the PCP and the discriminatory impact.

Let’s explore this in more detail with practical examples.

Practical examples of PCPs in external-facing policies

1. Complaints policy

One of the most common external-facing policies for charities is the complaints policy, which allows service users or beneficiaries to raise concerns. However, the provisions or procedures within such policies can often unintentionally disadvantage certain groups.

Here is an example: A charity’s complaints policy stipulates that all complaints must be made in writing, within a strict 3 months’ window from the act or omission or series of acts or omissions giving rise to the complaint, and only using an online form. This requirement, as a PCP, could indirectly disadvantage people with disabilities, such as those with visual impairments or learning disabilities, as well as individuals who lack access to technology or are unfamiliar with online platforms.

Equality impact assessment in practice: By conducting an EIA, the charity could identify that this policy disproportionately affects disabled individuals and people from economically disadvantaged backgrounds. Adjustments such as allowing verbal complaints, extending the time period for complaint, or providing assistance with filling in the form could remove these barriers. Moreover, the charity could ensure the online form is accessible to screen readers and provide alternative methods to submit complaints. These changes would help demonstrate that the charity has had due regard to the PSED’s aims.

2. Service delivery and access

Charities often provide essential services, such as advice, support, or care, to the public. However, the way these services are structured can inadvertently create barriers for people with certain protected characteristics.

Here is an example: A charity that provides telephone-based counselling services may not consider that individuals with hearing impairments, or non-native English speakers, face difficulties accessing this type of service. Similarly, services delivered exclusively during weekdays might disadvantage those with religious obligations or caring responsibilities.

Objective justification: Through an EIA, the charity would likely recognise that telephone-only counselling excludes those with hearing impairments and would need to offer alternative methods, such as email or online chat services. For those with language barriers, translation services could be provided. Where certain operational constraints prevent this, the charity would need to present an objective justification, showing that any disadvantage is proportionate to achieving the legitimate aim of running the service effectively. However, these justifications should always be balanced and must not disproportionately affect individuals with protected characteristics.

3. Volunteer recruitment policies

For many charities, volunteers are a crucial resource. However, recruitment policies that are too rigid may discourage applications from diverse backgrounds or inadvertently disadvantage certain groups.

Here is an example: A charity that requires volunteers to commit to specific, inflexible hours during the week may unintentionally exclude women who have childcare responsibilities, older volunteers, or individuals with disabilities who require flexible working conditions.

Equality impact assessment in practice: An EIA might highlight that the policy excludes individuals with caring responsibilities and disabilities. To mitigate this, the charity could offer more flexible shifts, remote opportunities, or weekend volunteering roles. Adjusting the policy in this way promotes equality of opportunity and ensures that the charity’s practices are inclusive.

The importance of objective justification

In all these examples, it is not enough to simply identify that a policy may have a disproportionate impact on a protected group. If a provision, criterion, or practice is found to disadvantage a particular group, the charity must either adjust the policy to remove the disadvantage or provide objective justification for why the policy is written in a certain way, and that is a proportionate way of pursuing the justification.

Objective justification means that the charity must show that the PCP in question pursues a legitimate aim — one that is necessary and the means of pursuing that aim is proportionate. This could be the effective delivery of a service, or the need to maintain a high level of safety or quality. However, the charity must also demonstrate that there are no less discriminatory means of achieving that aim. This is where the EIA becomes invaluable in providing a clear record of the thought process and balancing exercise that leads to the policy writing decisions.

Conclusion

The Public Sector Equality Duty places significant responsibilities on charities providing public services, ensuring that their policies and practices do not disadvantage individuals with protected characteristics. By conducting Equality Impact Assessments, charities can identify and address potential inequalities, ensuring that any disadvantage is either removed or justified through objective reasoning. This proactive approach helps charities not only to comply with the law but also to align their values with the principles of fairness, equality, and inclusivity.

In a sector dedicated to making a positive social impact, it is essential that charities practice what they preach, making equality an integral part of their policy-making processes.

For further guidance or a review of your policy or equality impact assessment, please reach out to nick.hobden@ts-p.co.uk or jayne.adams@ts-p.co.uk