What does the public sector equality duty mean for Scottish public authorities?

On 30 September 2025, the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee (the Committee) published a reporton the operation of the public sector equality duty (PSED) in Scotland. In the report, the Committee criticised public authorities’ delivery of the PSED.

The report concludes that Scottish public bodies are failing to deliver on the PSED and found that there is a strong need for significant reform to Scottish public authorities’ approach to the PSED.

The Committee recognised that there are significant funding challenges for public authorities and that at such times the capacity to focus on the aims such as those under the PSED can be severely challenged. However, it considers that it is even more vital that public authorities focus on these aims at this time.

What is the general PSED?

There is a duty on public authorities under section 149 of the Equality Act 2010 (“2010 Act”). This is known as the general Public Sector Equality Duty (PSED). The general PSED is to have due regard to three needs. These are the need to:

1. eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 Act;
2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The relevant protected characteristics are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

What does this mean?

The general PSED requires public authorities to consider equality in all of its functions including decision-making, the development of internal policies and the delivery of services.

The duty to have due regard means that the three needs are taken into account where relevant and in a proportionate way. It requires more than just "thinking" about equality and needs "rigour and an open mind" and there must be reference to relevant evidence.

It is not a tick box exercise and a public authority cannot retrospectively have regard to the three needs to justify a decision that has already been taken.

However, the duty is not an obligation of result. Instead, it is an obligation to consider the three needs. A public authority can reach decisions which do not advance the three needs if it is satisfied it has good reason for not doing so. This means that the general PSED requires the public authority to pause and think about the three needs before making or changing policies, but the public authority is not bound to meet the three needs if there are good reasons for proceeding with a new or revised policy.

What are the specific duties linked to the PSED?

Some public authorities have specific duties in addition to the general PSED. These are called the specific duties. The specific duties and the public authorities that require to comply with these duties are set out under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (“2012 regulations”).

The specific duties include the duty to publish equality outcomes and report on progress, the duty to publish statements on equal pay and the duty to report on progress in mainstreaming the general PSED.

Regulation 5 the of 2012 regulations provides that the relevant public authorities must, to the extent necessary to fulfil the PSED, assess the impact of applying a proposed new or revised policy or practice against the needs in the PSED (to eliminate discrimination, advance equality and foster good relations). The duty to assess applies when a policy is introduced and when it is revised. This is also known as the duty to undertake an equality impact assessment.

Conclusion

Although the Scottish Parliament Committee acknowledges the challenge of budgetary limits on public authorities, it stresses the importance of complying with the PSED.

Failure to comply with the general and specific PSED can have serious consequences in practice. For example, in McHattie v South Ayrshire Council, the court reversed the Council’s decision to close an Adult Care Centre due to its failure to conduct an equality impact assessment and consult with relevant individuals prior to making this decision. This was in the context of the Council’s budget setting and demonstrates that failure to have regard to the three needs can cause major decisions (such as budget setting) to be struck down.

It is essential that public authorities make sure that their internal processes are sufficiently robust, both to meet the demands of the Scottish Parliament and withstand potential legal challenges.

The Committee’s report is a reminder of the importance of showing compliance with the PSED and an opportunity for authorities to review the procedures they have in place for complying with the PSED.

Likewise, the public and companies affected by decisions of public authorities should bear in mind that a decision of a public authority can be challenged where the general PSED or the specific duties apply and they have not been complied with.

Please contact Christine O’Neill KC, Lewis Newlands, Lauren Smith or your usual Brodies contact if you have any questions or would like to discuss this further.