The High Court has ruled that the former UK Health Secretary, Matt Hancock, failed to comply with the Public Sector Equality Duty in the Equality Act 2010 when he appointed Dido Harding in August 2020 and Mike Coupe in September 2020.

Dido Harding was appointed Interim Chief Executive of the National Institute for Health Protection whilst Mike Coupe was made Director of Testing at NHS Test and Trace.

The matter was brought by Runnymede Trust, and legal campaign group The Good Law Project, although the court found the latter did not have standing to bring the claims. 

The general Public Sector Equality Duty is set out in s.149 of the Equality Act 2010 and came into force in April 2011. Under the duty, public authorities are required, in carrying out their functions, to have due regard to the need to achieve the following objectives:

1. eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;
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 Equality Act sets out a list of the public authorities that are subject to the Public Sector Equality Duty. These include the Greater London Authority, school governing bodies and government ministers.

In this case, it was argued and ultimately accepted that the recruitment process for Mr Coupe and Baroness Harding had failed to comply with the second objective. The lawyers representing the claimants suggested that people “outside the tight circle” in which senior Conservative politicians and their friends moved were not being given opportunity. The protected characteristics, in this case, were disability and race. 

In a written ruling, Lord Justice Singh and Mr Justice Swift said: “It is the process leading up to the two decisions which has been found by this court to be in breach of the public sector equality duty."

If a public authority is found not to have complied with the Public Sector Equality Duty, the court can quash the decision taken by the public authority, to ensure the full decision-making process is run again but in a way that is compliant with the Public Sector Equality Duty.  

The procedural duty of a public authority is to have “due regard” to achieving the three equality objectives as part of its decision-making process. The duty does not necessarily mean the decision-maker should choose the outcome that favours one or more of the equality objectives. Instead, to have “due regard” is for the decision-makers to give weight to the factor. The guidance on having “due regard” suggests a five-stage approach which includes planning, evidence, assessment and improvement, strategic decision making and recording. Should there be clear evidence of this, then the “due regard” will be achieved.

This judgment is a clear reminder of the need for public authorities to place appropriate weight on their obligations to reduce inequality. Unless we have a level playing field where opportunities are not influenced by how well-connected an individual is to certain decision-makers, then we will not have the diversity of thought to enable the public sector to function in the most productive way.

However, to me, this case also raises the question of whether our equality legislation goes far enough to protect those who need it. In my view, we would be in a much stronger position if the law explicitly protected those from lower socio-economic backgrounds. The Equality Act already contains a public sector duty regarding socio-economic inequalities which came into force in Wales earlier this year. I consider that the time is right for this section to be put into force in England and ultimately to be widened beyond the public sector. 

If you would like advice or support on your obligations in this area, then please do get in touch. You can also download a copy of our free Social Mobility Toolkit.