Public sector equality duty - taking legal action
The Equality Act 2010 says public authorities must comply with the public sector equality duty. This is in addition to their duty not to discriminate against you. The public sector equality duty is a duty on public authorities to consider how their policies or decisions affect people who are protected under the Equality Act 2010.
If you think a decision or policy by a public authority discriminates against you or disadvantages you because of who you are, you may be able to use the public sector equality duty.
Read this page to find out more about how to take action under the public sector equality duty.
Before taking action
Taking court action can be a long and stressful process. It can also be expensive. It’s important to keep in mind that if you lose the case in court, you may have to pay the other side's legal costs which could be high.
If you’re thinking about taking court action, you should get advice from an experienced adviser, for example, at a Citizens Advice Bureau - where to get advice.
Taking legal action
Who must comply with the public sector equality duty
Remember, only public authorities like a school or local authority must comply with the public sector equality duty. However other agencies that provide a public service also have to comply.You can check who else has to comply because of the services they provide.
What court action can you take
If you take action against a public authority because they’ve not complied with the public sector equality duty you need to follow a special procedure called judicial review.
Judicial review is a special procedure you can use to challenge decisions made by public authorities.
When can you use judicial review
Judicial review can only be used against a public authority.
You can only make an application for judicial review if there are no other ways of challenging a decision. If you don’t have a separate right of appeal or you’ve exhausted your rights to appeal you can use judicial review.
For example, if you take action against your school about a disciplinary issue there may be an appeal to a disciplinary committee. In this case you need to do this first before you make an application for judicial review.
Try to resolve the problem without going to court first
Before you take court action, you should always try to resolve your problem in other ways first, for example, by talking to the public authority, or by using mediation. This is called alternative dispute resolution or ADR.
However, you should be aware that there are very strict time limits for making an application for judicial review. If you’re running out of time, it may be necessary to issue your claim at court directly. You could then ask the court for more time to consider alternative dispute resolution. You must discuss any time problems with your legal adviser.
What are the time limits
From 22 September 2015 the application must be made within three months of the decision you're complaining about.
Prior to this date there wasn't a strict time limit. Any cases progressing through court from before 22 September 2015 will be heard under the old rules.
Where should you make your application
Judicial review applications must be made to the Court of Session in Edinburgh. Permission must be sought from the Court of Session to let the judicial review go ahead. If your case progresses it may be heard in higher civil courts in the UK.
Who can make an application for judicial review
You can make an application for judicial review if you have sufficient interest or 'standing' on the issue. This generally means you must be personally affected by the decision you’re taking action about. When you are personally affected your 'standing' is unlikely to be challenged.
Help with legal costs
It is possible to get legal aid in petitions for judicial review at the early stages of the process when permission has to be sought from the Court of Session.
What remedies can the court order
When you make an application for judicial review the court will look at how the decision was made rather than assess if it was the right decision.
If the court thinks the way the decision was made is wrong, for example, because the public authority didn’t properly consider its public sector equality duty, it can cancel the decision and tell the public authority to make the decision again.
The court can also:
- cancel the decision and may put you back into the position you were in before it was made. This is called reduction
- make the public body stop doing something it is already doing, or prevent it from doing something in the future. If it does not adhere to the terms of the court order it may be fined. The court order that makes this happen is called an interdict
- order the official or body to do something specific which it should have done. This is called an order to implement
- state what it believes to be the correct position. This is called a declarator. You can ask for this on its own, but it is usually combined with other remedies the court may award, for example, money, including damages for the loss suffered as a result of harmful action or inaction.
- More about judicial review
Using the public sector equality duty to support other claims
You can also use the public sector equality duty to support another claim against a public authority. For example, if a public authority discriminates against you, you can make a discrimination claim under the Equality Act. You could use the public sector equality duty to strengthen your discrimination claim.
When you have decided that you want to take legal action about the public sector equality duty you may need further help about using a solicitor and about what help you may be able to get about legal costs.
Organisations that can help
Equality Advisory Support Service (EASS)
The EASS helpline can provide advice and information on human rights and discrimination issues.
Equality and Human Rights Commission (EHRC)
You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com.