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The Public Sector Equality Duty — usually shortened to PSED — is the legal requirement that public bodies in Britain consider equality before they make decisions. It sits in section 149 of the Equality Act 2010 and shapes how councils set budgets, how NHS trusts redesign services, how schools admit pupils and how government departments draft policy. The duty isn't a paperwork exercise: it has produced real case law, and authorities that get it wrong have had decisions quashed.
This guide explains the three aims of the general duty, who has to comply, what 'due regard' means in practice, how the specific duties differ across England, Scotland and Wales, and the pitfalls that most often trip up public sector compliance.
The three aims of the general duty
Section 149 sets out three aims that every public authority must have due regard to:
Eliminate unlawful discrimination, harassment and victimisation — and any other conduct prohibited by the Equality Act. This covers the four main types of discrimination (direct, indirect, harassment, victimisation), plus the more specific forms such as discrimination arising from disability and failure to make reasonable adjustments.
Advance equality of opportunity between people who share a protected characteristic and those who do not. The Act expands on this: advancing equality of opportunity means removing or minimising disadvantages, taking steps to meet the different needs of people who share a relevant protected characteristic, and encouraging participation in public life where it's disproportionately low.
Foster good relations between people who share a protected characteristic and those who do not. This includes tackling prejudice and promoting understanding. The 'good relations' aim doesn't apply to marriage and civil partnership; the other two aims apply across all relevant protected characteristics.
The duty applies to eight of the nine protected characteristics — marriage and civil partnership is included only for the elimination of discrimination aim. The protected characteristics themselves are defined in section 4 of the Equality Act and we cover them in detail in our guide to the nine protected characteristics.
Each aim is independent. A decision can advance equality of opportunity while undermining good relations, or eliminate discrimination while failing to advance opportunity. Public bodies need to consider all three.
Who the PSED applies to
The duty applies to two categories of organisation.
Public authorities listed in Schedule 19 of the Act — central government departments, local authorities, the NHS, schools and colleges, universities (when exercising public functions), police forces, fire and rescue services, courts and tribunals, and a long list of named bodies including most regulators and arm's-length bodies. Schedule 19 is amended periodically; the Equality and Human Rights Commission publishes the current list.
Other persons exercising public functions — private organisations and voluntary bodies when they're carrying out functions of a public nature on behalf of a public authority. A private company running a prison, a charity delivering local authority services, or a private provider operating under an NHS contract is bound by the duty in respect of the public functions it performs, even though the company as a whole isn't a public authority.
The duty applies to decisions, policies and practices in the exercise of public functions. Routine internal decisions — staffing the front desk, ordering stationery — aren't usually PSED-relevant. Significant decisions affecting how a service is delivered, who can access it, or how public money is spent are.
What 'due regard' means
'Due regard' is the legal standard the duty sets. Public authorities don't have to produce a specific outcome; they have to have due regard to the three aims when making decisions. What this means in practice has been clarified through case law.
The leading authority is R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158, a High Court case decided just before the Equality Act came into force but applying the predecessor disability equality duty. The court set out six principles that have been adopted and applied to the PSED since:
- Decision-makers must be aware of their duty under the relevant equality legislation.
- Due regard must be considered before and at the time the relevant policy or decision is made — not after.
- The duty must be exercised in substance, with rigour, and with an open mind.
- The duty is non-delegable; it rests with the decision-maker.
- The duty is a continuing one.
- It is good practice to keep records to demonstrate compliance.
The 'Brown principles' have been cited in dozens of subsequent cases. The most important practical points are that due regard must happen before the decision (not retrospectively to justify it), and that the decision-maker themselves — not just an adviser or an officer — must have considered the duty.
A second important case, Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, added that the consideration must be 'conscientious, rigorous and open-minded'. A box-ticking exercise won't satisfy the duty. The decision-maker has to engage with the evidence and reach their own view about the equality consequences.
Specific duties: England, Scotland, Wales
The general duty under section 149 is identical across England, Scotland and Wales. The specific duties — additional regulations that put procedural meat on the general duty — differ by nation.
England
The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 require listed public bodies to publish equality information at least annually and to publish one or more equality objectives at least every four years. The regime is comparatively light-touch — there's no specific requirement to publish equality impact assessments, although doing so is common practice.
Scotland
The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 are substantially more detailed. Listed authorities must publish equality outcomes, mainstream the duty, assess and review policies and practices, gather and use employee information, publish gender pay gap information, publish statements on equal pay, and consider award criteria and conditions in public procurement. The Scottish regime is more prescriptive about what equality work looks like.
Wales
The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 sit somewhere between the English and Scottish positions. Welsh public bodies must publish equality objectives, gather and use information, consult, assess the likely impact of proposed policies and practices, and publish reports where a substantial impact is detected. The Welsh regime explicitly emphasises engagement and consultation with affected groups. Wales has also introduced a separate socio-economic duty under the Equality Act, brought into force in 2021, which requires Welsh public bodies to have due regard to socio-economic disadvantage in strategic decisions.
Northern Ireland
The Equality Act 2010 does not apply in Northern Ireland. The equivalent statutory duty arises under Section 75 of the Northern Ireland Act 1998, which works on similar principles but uses a different list of protected groups and has its own procedural framework administered by the Equality Commission for Northern Ireland.
A UK-wide organisation needs to comply with different specific duties in each nation it operates in.
PSED in practice: examples
The duty shapes day-to-day public sector work in concrete ways.
A county council restructuring its day care services for older adults considers the differential impact on women (who use the service in higher numbers), on people with dementia, and on carers (mainly women in their fifties and sixties whose work patterns depend on day care availability). The decision proceeds, but with a phased transition and additional support for carers.
A police force introducing body-worn cameras considers the equality implications: improved accountability where officers interact with ethnic minority members of the public, against the privacy implications for victims of domestic violence and sexual offences whose statements are now captured on video. The policy is adjusted to give officers discretion in specific scenarios.
An NHS trust planning to close a small community hospital considers the impact on patients with limited mobility, older patients, and patients without cars in rural areas. The decision proceeds with enhanced transport arrangements and an outreach service for the most affected groups.
A university revising its admissions policy considers the impact across protected characteristics, particularly on applicants from less advantaged socio-economic backgrounds (not a protected characteristic but a relevant consideration), on disabled applicants, and on mature students. The policy is amended to allow contextual admissions.
None of these are dramatic — they're the texture of how public bodies actually make decisions when they take the duty seriously.
EIAs and the PSED
The most common way that public authorities evidence compliance with the duty is through an equality impact assessment — a structured analysis of how a proposed decision will affect different protected groups. EIAs aren't themselves legally required in England (the duty is to have due regard, not specifically to produce an EIA), but they're the established and credible method of demonstrating that due regard was had.
In Scotland and Wales the specific duties impose stronger requirements to assess and, in some cases, publish assessments of policies and practices.
A common mistake is treating the EIA as the duty itself — completing the form and considering the duty discharged. The Bracking judgment is clear that the consideration must be substantive, not procedural. A perfunctory EIA that ticks boxes without engaging with the evidence won't satisfy the duty even if it exists.
Reporting and transparency
The specific duties require various forms of public reporting. The most consistent requirement is equality information — workforce data broken down by protected characteristic, service user data where it's collected, and analysis of patterns.
Gender pay gap reporting is mandatory for public sector employers with 250 or more employees, alongside the broader private sector requirement. The data is reported through the government's gender pay gap reporting service.
Equality objectives are required in England every four years and in Wales on a similar cycle. Scotland uses 'equality outcomes' instead, with broader requirements about what they should cover and how progress should be reported.
Enforcement and case law
The PSED has been the subject of substantial litigation. Authorities have had decisions quashed where they failed to demonstrate due regard, particularly in cases involving disability and adult social care.
In R (Bracking) v Secretary of State for Work and Pensions, the Court of Appeal quashed the Government's decision to close the Independent Living Fund because the duty had been considered too late and too superficially. In R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin), the council's decision to cut funding to certain voluntary sector advice services was quashed for similar reasons. In R (Chavda) v London Borough of Harrow [2008] EWHC 3064, the council's eligibility criteria for adult social care were quashed after the court found it had failed to give proper consideration to the disability equality duty.
The pattern across these cases is consistent. The court isn't asking whether the public body made the right decision — that's a matter for the public body. It's asking whether the body considered the equality consequences properly, in time, with rigour, and as part of the decision-making process. Authorities that can show this win. Authorities that treat the duty as a retrospective justification exercise lose.
Common compliance pitfalls
Several recurring patterns get authorities into trouble.
Doing the EIA after the decision
The duty is to have due regard before and at the time of the decision. Retrospective justification doesn't satisfy the duty.
Delegating consideration entirely to officers
The decision-maker — councillor, board member, minister — must engage personally. Briefings that bury the equality analysis in an annex aren't enough.
Generic, copy-paste analysis
Specific decisions need specific analysis. 'May affect older residents — mitigation: communicate clearly' doesn't show due regard.
Failing to update when the proposal changes
EIAs are 'live documents'. If the proposal changes significantly during the process, the analysis needs to be revisited.
Treating the PSED as a separate workstream
Authorities that do the duty well treat it as part of their normal decision-making, not as a separate equality function that the rest of the organisation routes around.
Frequently asked questions
What is the Public Sector Equality Duty?
The PSED is the legal duty on public authorities, set out in section 149 of the Equality Act 2010, to have due regard to three aims: eliminating discrimination, advancing equality of opportunity, and fostering good relations. It applies to every relevant decision in the exercise of public functions.
Who does the PSED apply to?
Public authorities listed in Schedule 19 of the Equality Act — councils, NHS bodies, schools, police forces, government departments and many others — and to private or voluntary bodies when they exercise public functions on behalf of a public authority.
What does 'due regard' mean?
It means active, substantive consideration of the equality consequences of a decision before and during the decision-making process. The Brown principles set out what this requires: awareness of the duty, consideration in advance, rigorous and open-minded engagement, personal involvement of the decision-maker, continuous attention, and record-keeping.
What are the specific duties?
Additional procedural requirements that supplement the general duty. They differ by nation: England has lighter-touch requirements around publishing equality information and objectives; Scotland has more detailed requirements including equality outcomes and procurement provisions; Wales has its own framework with strong emphasis on consultation and a separate socio-economic duty.
What are the Brown principles?
Six principles from R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 that define what 'due regard' requires. They emphasise that consideration must be in advance of the decision, must be substantive, must be done by the decision-maker, and should be documented.
Are equality impact assessments legally required?
Not directly in England — the duty is to have due regard, not specifically to produce an EIA. But EIAs are the established and credible method of evidencing the duty, and in Scotland and Wales the specific duties impose stronger requirements to assess policies and practices.
The PSED sits within the wider framework of the Equality Act 2010 and operates alongside the nine protected characteristics and the requirement to make reasonable adjustments. The most common way of evidencing compliance is the equality impact assessment. To build understanding of the duty into your team's day-to-day practice — including current case law and the recent legal developments — our Equality and Diversity Training course covers the PSED in detail.
