Public Sector Equality and Human Rights Duty – FAQ

The Public Sector Equality and Human Rights Duty (‘the Duty’) is a statutory obligation for public bodies in Section 42 of the Irish Human Rights and Equality Commission Act 2014. Section 42(1) requires public bodies, in the performance of their functions, to have regard to the need to eliminate discrimination, promote equality and protect human rights of staff and people availing of their services. Section 42(2) requires public bodies to assess, address and report on progress in relation to equality and human rights in their strategic plan and annual reports in a manner that is accessible to the public.

Public bodies in Ireland are required to comply with the Public Sector Human Rights and Equality Duty (‘the Duty’). The definition of a public body for the purposes of the Duty includes:

• a Department of State
• a local authority
• the Health Service Executive
• a university or institute of technology
• an education and training board
• any other person, body or organisation established under statute, or under any scheme administered by a Government Minister, excluding the Defence Forces
• a company wholly or partly financed by or on behalf of a Government Minister, in pursuance of powers conferred by or under another enactment
• a company where the majority of shares are held by or on behalf of a Government Minister

In addition, any other person, body, organisation or group financed wholly or partly out of moneys provided by the Oireachtas, may, in the public interest, be prescribed as a public body by the Minister for Justice and Equality, following consultation with the Irish Human Rights and Equality Commission.

The Public Sector Equality and Human Rights Duty places a statutory obligation on public bodies, in the performance of their functions, to have regard to the need to eliminate discrimination, promote equality of opportunity and protect the human rights of those to whom they provide services and staff when carrying out their daily work.

Public procurement, as a function of public bodies, is subject to the Public Sector Duty.

Public bodies bound by the Duty are therefore responsible to ensure that equality and human rights obligations equivalent to the Duty are included in agreements with contractual partners.

Section 42 of the Irish Human Rights and Equality Commission Act 2014 imposes a statutory obligation on public bodies in performing their functions to have regard to the need to:

• eliminate discrimination;
• promote equality of opportunity and treatment for staff and persons to whom it provides services; and
• protect the human rights of staff and services

The 2014 Act requires a public body, having regard to its functions, purpose, size and resources available to it, to:

1. Assess – set out in its strategic plan an assessment of the human rights and equality issues it believes to be relevant to the functions and purpose of the body;
2. Address – set out in its strategic plan the policies, plans and actions in place or proposed to be put in place to address those issues;
3. Report – report on developments and achievements in its annual report.

The obligation to integrate the Duty in a public body’s strategic plan and annual report means that assessing and addressing equality and human rights issues is an ongoing process that should be reviewed and developed in accordance with strategic planning cycles. See our Guidance and video case studies for further practical information on implementing the Public Sector Equality and Human Rights Duty.

The Public Sector Equality and Human rights Duty (the Duty) has been a statutory requirement since the enactment of the Irish Human Rights and Equality Commission Act on 1 November 2014. Public bodies are required to implement the Duty within their organisation since the day of enactment. Therefore, if your organisation has not yet commenced implementing the Duty, it needs to start immediately.

Implementation of the Duty is linked to an organisation’s strategic planning cycle. Therefore it is not a one-off initiative, but rather an ongoing and continuous process that should be reflected in strategic plans and annual work plans.

Section 29 of the Irish Human Rights and Equality Act 2014 defines human rights, for the purposes of the Duty, as meaning those rights and freedoms of individuals which are protected by the Irish Constitution; by the European Convention on Human Rights Act 2003; and by provisions in other international treaties which have been given “the force of law” in Ireland.

Equality rights arise under the Constitution and international law, and many of the State’s equality and anti-discrimination protections are derived from EU law including the EU Charter on Fundamental Rights and the EU Equality Directives which underpin Ireland’s equality legislation. Ireland’s principal equality legislation is set out in the Employment Equality Acts 1998-2015 and the Equal Status Acts 2000-2015.

Further information on the key human rights and equality obligations on public bodies is outlined in the Guidance Implementing the Public Sector Equality and Human Rights Duty pages 7-10.

Public bodies can find information on getting started in the Implementing the Public Sector Equality and Human Rights Duty Guidance from the Commission, which can be accessed here.

The Commission has also undertaken a number of pilot projects with public bodies on commencing their implementation of the Duty. The experience of those public bodies is documented in a series of video case studies which can be viewed here.

The Irish Human Rights and Equality Commission can give guidance to and encourage public bodies in developing policies and good practice in relation to human rights and equality.

• For example, the Commission has developed Guidance on Implementing the Public Sector Equality and Human Rights Duty which can be downloaded here. There are also video case studies available, documenting the experience of five public bodies around getting started on implementing the Public Sector Duty.
• The Commission will deliver information sessions for public bodies on the Public Sector Duty in 2019. Further information on these events, including dates and how to register can be found here.
• The Irish Human Rights and Equality Commission has, for the last three years, offered a bursary scheme for people working in public bodies and civil society organisations to undertake a Professional Diploma in Human Rights and Equality in the Institute of Public Administration which has a dedicated module on the Public Sector Duty. Further information on the Bursary can be found here.

Where the Commission considers that there is evidence of a failure by a public body to perform its functions in line with the Public Sector Equality and Human Rights Duty it has the power to invite a public body to carry out a review, or to prepare and implement an action plan related to the performance of its functions, or both. The focus of the review or action plan may be on equality of opportunity and human rights in general terms, or on a particular aspect of human rights or discrimination in the body, or both.

Where the Commission considers that there is evidence of a failure by a public body to perform its functions in line with the Public Sector Equality and Human Rights Duty it has the power to invite a public body to carry out a review, or to prepare and implement an action plan related to the performance of its functions, or both. The focus of the review or action plan may be on equality of opportunity and human rights in general terms, or on a particular aspect of human rights or discrimination in the body, or both.

While identifying an appropriate legal basis under Article 6 and a permissible condition under Article 9 of the General Data Protection Regulation (GDPR) for processing personal data and special categories of personal data, is a matter for each public body as a data controller, the Commission is of the view that a legal basis and permissible condition does exist in both GDPR and the Data Protection Act, 2018, to allow public bodies to process personal data and special categories of personal data which may constitute equality data. Public bodies are reminded that the Public Sector Equality and Human Rights Duty is a statutory obligation placed on them.