Public Sector Equality Duty survives review - but must be used more proportionately
A Steering Group set up by the Home Office has recommended that the Public Sector Equality Duty (“PSED”) under the Equality Act 2010 should remain and not be reformed, but in the field of procurement, contracting authorities should use it more proportionately and not adopt a formulaic, “box ticking” approach.
The review arose out of the “Red Tape Challenge” and the Steering Group were keen to explore how the burdens of the PSED were being passed on to businesses and voluntary sector organisations tendering for contracts. It found that many public bodies are attempting to embed equality considerations into their procurement and commissioning processes, but that too many are adopting a formulaic, ‘tick-box’ approach which they do not vary regardless of the size or nature of the contract. This creates a barrier for smaller charities and companies wishing to tender for public contracts.
For example, it was found that large businesses tend to have the processes and paperwork in place already to demonstrate compliance with PSED requirements, whereas small and medium sized enterprises (“SMEs”) and voluntary sector bodies do not, and would require a great deal of support to develop them. This has a knock-on effect for sub-contractors lower down the chain, as one large business commented that they could not afford to spend time supporting SMEs through the process, so 80% of SMEs were debarred from being considered as their sub-contractors.
The Steering Group recommended that PSED considerations should be applied proportionately in
procurement and in particular that:
- Public bodies must reduce the burdens placed on small employers.
- Public bodies should remove Pre-Qualification Questionnaires (PQQs) for contracts below £100k and utilise the government’s core PQQ, which does not include equality requirements for contracts over this amount.
- Public bodies should not impose onerous or disproportionate requirements on contractors delivering services (particularly those with fewer than 50 employees) to provide equality data on workforce and service users.
- Public bodies should be challenged where their procurement processes creates barriers for small businesses and charities.
- Private and voluntary sector employers in England should refer any potentially inappropriate equality requirements that have been applied to a particular procurement exercise to the Cabinet Office Mystery Shopper scheme.