The Equality Act 2006 is designed to ensure that a wide number of authorities are subject to the gender duty in relation to the performance of public functions. 'Public authority' therefore includes any person who has functions of a public nature. This will include private bodies or voluntary organisations who are carrying out public functions on behalf of a public authority. An organisation will be exercising a public function where it is in effect exercising a function which would otherwise be exercised by the state – and where individuals have to rely upon that person for the exercise of that function. These bodies are sometimes referred to as 'functional public bodies'. Whether or not an organisation is exercising a function of a public nature will ultimately be a matter for the courts. As the law presently stands, a private body may be held to be performing public functions and thus subject to the gender equality duty in relation to those functions if:
it is publicly funded
it is exercising powers of a public nature directly assigned to it by statute; or
it is taking the place of central or local government
it is providing a public service
its structures and work are closely linked with the delegating or contracting-out state body
there is a close relationship between the private body and any public authority.
Additional factors which may be relevant in determining whether or not a body is carrying out a function of a public nature include:
the extent to which the private body is supervised by a state regulatory body
the fact of supervision by a state regulatory body.
For example, the following bodies are likely to be deemed to be performing ‘functions of a public nature’ in relation to their public functions, and therefore subject to the gender equality duty in relation to those functions:
the privatised utilities
private security firms managing contracted-out prisons
GPs when providing services under contract to a Primary Care Trust.
In relation to a particular act, a person is not a public authority if the nature of the act is private (for example, a private company running a prison will not be covered by the duty in relation to its private activities such as providing security guards for supermarkets).
A pure public authority contracting out services will always remain subject to the duty. It is possible that a 'pure' public authority which is subject to the duty could also be contracting out services to a ‘functional’ public authority (i.e. a private organisation providing a service of a public nature). In this case, both bodies will be subject to the duty in their own right. If there is a breach of the general duty, the legal responsibility for this could rest, depending on the circumstances, with either body. Actual responsibility would depend on the act which is the