Equality, diversity and human rights: NHSScotland PIN policy

2 Main Report

2.1 Scope

2.1.1 This PIN policy applies to all those who work within or apply to work within NHSScotland, regardless of employment status. It therefore includes permanent and fixed-term employees, staff on zero-hours contracts, those working within the Board on behalf of other agencies, those on secondment to the Board, volunteers, and those on work experience or training placements.

2.2 Strategic/Organisational Context

2.2.1 Commitment to equality, diversity and human rights is fundamental to the principles of the NHSScotland Staff Governance Standard and the Scottish Government's Fair for All^[7] agenda which seeks to understand the needs of different communities, eliminate discrimination in the NHS, reduce inequality, protect human rights and build good relations by breaking down barriers that may be preventing people from accessing the care and services that they need. It aims to address inequalities by recognising and valuing diversity, promoting a patient- focused approach and involving people in the design and delivery of health care.

2.2.2 Furthermore, NHSScotland Boards have a duty to comply with the existing equality and human rights legal framework, taking action to eliminate unlawful discrimination, advance equality of opportunity, and foster good relations.

2.2.3 However, beyond compliance with national policy and legislative obligations, there are clear organisational benefits to implementing and maintaining good employment practice in relation to equality, diversity and human rights, for example:

• Staff feel valued, motivated, treated fairly and able to work within a culture where they feel they can genuinely fulfil their potential, resulting in increased staff engagement;
• This may impact positively on the level of dignity at work complaints/grievances which arise, and on levels of sickness absence;
• As a result, Boards will be able to further their aim of achieving and maintaining exemplar employer status, which will further enhance recruitment and retention of staff;
• With a more diverse workforce, comes greater levels of flexibility; and
• As a result of all of the above, this can help to achieve improvements in service provision to patients/service users.

2.2.4 Any staff member who believes that they have been treated less favourably because of their age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, part-time status, fixed-term contract status or membership (or non-membership) of a trade union/professional organisation is encouraged to raise the matter through their local policy.

2.3 Legal Framework

The purpose of this section is to provide the legal context against which this PIN policy has been developed and to provide a source of reference to Boards where questions arise on areas not covered within the PIN policy. It should be noted, however, that the PIN policy exceeds minimum legal requirements in a number of respects.

It should also be noted that there is no qualifying period of employment for individuals bringing claims against organisations in discrimination cases. Furthermore, an individual need not necessarily be an employee in order to raise a claim, for example in the case of a job applicant.

2.3.1 Equality Act 2010

The Act provides a legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen earlier equality legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.

The Act covers discrimination because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These are known as the 'protected characteristics'.

The Act additionally sets out an equality duty for public sector organisations. This comprises of a general equality duty, as well as specific duties imposed by the Equality Act 2010 (Specific Duties) Scotland Regulations 2012.

Further details of employers' obligations under the Act, including the public sector equality duty, are set out in Appendix 2. Further information on compliance is also set out in the statutory codes of practice on equal pay and employment which accompany the Act.

2.3.2 Equality Act 2010 (Specific Duties) Scotland Regulations 2012

Under the Equality Act 2010 (Specific Duties) Scotland Regulations 2012, public bodies - including NHSScotland Boards - are required to comply with the following duties:

• Report progress on mainstreaming the public sector equality duty;
• Publish equality outcomes and report progress;
• Assess and review policies and practices [impact assessment];
• Gather and use employee information;
• Publish a statement on equal pay;
• Consider award criteria and conditions in relation to public procurement; and
• Publish in a manner that is accessible.

The purpose is to gather and publish specific categories of data, within set deadlines, and to use the data to improve performance of the general equality duty. Further information on what the Specific Duties require in terms of employee information can be found at Annex 2 and here:
http://www.equalityhumanrights.com/

2.3.3 The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

The regulations provide that a part-time worker has the right not to be treated less favourably than an employer treats a comparable full-time worker, unless such treatment can be 'objectively justified'.

2.3.4 The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002

The regulations provide protection for fixed-term employees, including the right not to be treated less favourably than comparable permanent employees because they are on a fixed-term contract, unless there are 'objectively justifiable' circumstances for doing so.

2.3.5 Trade Union and Labour Relations (Consolidation) Act 1992

The Act contains rights in relation to trade union membership and activities, including:

• The right not to be refused employment because an individual is, or is not, a member of a trade union;
• The right not to be subjected to any detriment by any act or failure to act by their employer for the sole or main purpose of preventing or deterring them from taking part in trade union activities, or penalising them for doing so; and
• The right not to be dismissed for taking part, or proposing to take part, in trade union activities.

2.3.6 Rehabilitation of Offenders Act 1974

The Act sets out to improve the rehabilitation prospects of people who have been convicted of a criminal offence and served their sentence.

Under the Act, unless a post is excluded, individuals are only required to declare any convictions which are unspent. A conviction becomes spent after a certain period of time has passed (the 'rehabilitation period'). The length of time it takes for a conviction to become spent will depend on the sentence and it should be noted that some convictions never become spent.

2.3.7 Human Rights Act 1998

The Act aims to give further effect in UK law to the rights contained in the European Convention of Human Rights. In particular, public authorities have a duty under the Act not to act incompatibly with rights under the European Convention of Human Rights (ECHR).

The Act adds protections for staff members' rights and freedoms, and these can extend to work-related matters. Specifically, it is unlawful for public sector employers to violate the human rights of their staff under the Convention.

Under international law, the UK has a positive obligation to realise relevant international human rights treaties beyond ECHR. These include the International Covenant on Economic, Social and Cultural Rights, which contains the right to a basic standard of living, to work, to rest/leisure and the highest attainable standard of physical and mental health. Although the Covenant is not justiciable in the courts, the UK is periodically examined on compliance by the UN Human Rights Council, and this can influence the decisions of the courts in relation to ECHR compliance.

2.4 Principles

2.4.1 The provisions within this PIN policy aim to support Boards to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010 and less favourable treatment of other categories of worker as set out within other relevant legislation;
• Advance equality of opportunity between people who share a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation) and those who do not;
• Foster good relations between people who share a protected characteristic and those who do not; and
• Ensure that Boards are mindful of their obligations under the Human Rights Act 1998 and take steps to have regard to ECHR rights in the discharge of their functions.

2.4.2 This will be achieved by:

• Removing or minimising disadvantages suffered by people due to their protected characteristics and creating an environment in which individual differences and the contributions of all staff are recognised and valued;
• Taking steps to meet the needs of people from protected groups where these are different from the needs of other people;
• Taking steps to reduce underrepresentation of people with particular protected characteristics and increase the diversity of our workforce, both at an organisational level and within different job roles; and
• Taking a zero tolerance approach to intimidation, bullying or harassment, recognising that all staff are entitled to a working environment that promotes dignity and respect for all.

2.5 Roles and Responsibilities

2.5.1 Boards will:

• Ensure that equality, diversity and human rights are at the heart of the organisation and everything it does;
• Identify a Director/Executive Manager, who is a member of local partnership arrangements, to champion and assume responsibility for equality, diversity and human rights;
• Act as agents for change within local communities by positioning equality, diversity and human rights at the heart of local delivery plans;
• Implement a local policy on equality, diversity and human rights. Where Boards choose not to adopt the model policy attached, local policies must be developed and agreed in partnership with local trade union/professional organisation representatives and either meet or exceed the minimum standards set out within this PIN policy;
• Ensure that everyone in the organisation understands what the Board's policy means for them. Practical training and positive support must be provided to all staff to ensure that they are aware of the Board's policy and of their rights and responsibilities within it;
• Have arrangements in place to support staff requiring assistance who have concerns with regard to equality, diversity and human rights.
• Assess the impact of policies and practices upon those with protected characteristics, and act accordingly upon the results. This should not be an end in itself, but instead an important part of policy and decision-making, which should lead to improvements in policies and practices;
• Ensure that equality and diversity monitoring is undertaken and that resulting improvement actions are identified and achieved; and
• Ensure that application of the Board's policy is monitored on an ongoing basis, to ensure that it is being fairly and consistently applied and that the stated principles and values are being met. The policy should be subject to regular review, in partnership, in order to ensure that it remains fit for purpose.

2.5.2 Managers will:

• Ensure that they are fully aware of and comply with their responsibilities under the local policy;
• Ensure that all staff for whom they are responsible are made aware of their responsibilities under, and have access to, the local policy;
• Ensure that they participate in training provided on the local policy, and that they ensure that all staff for whom they are responsible similarly participate in training on the policy;
• Ensure that they lead by example, demonstrating behaviours conducive to a culture which promotes equality, diversity and human rights, and dignity and respect;
• Ensure that all staff for whom they are responsible adhere to their responsibilities, identifying and dealing with concerns which arise in this regard in a fair, consistent, and timely manner; and
• Ensure that they seek advice from Human Resources/Equality Leads, where necessary and appropriate, when dealing with any such issues.

2.5.3 Staff will:

• Ensure that they are aware of their responsibilities under the local policy, and that they seek further guidance if unclear;
• Take responsibility for ensuring that they participate in training provided on the local policy;
• Comply with such responsibilities, including demonstrating behaviours conducive to a culture which promotes equality, diversity and human rights, and dignity and respect; and
• Challenge or raise concerns with the appropriate manager, where they perceive others not to be demonstrating such behaviours or otherwise not complying with their responsibilities under the local policy.

2.5.4 Trade Union/Professional Organisation representatives will:

• In partnership with the Board, agree a local policy on equality, diversity and human rights which reflects the parameters provided by this PIN policy;
• Work in partnership with the Board to develop joint training as part of the implementation of the local policy and participate in such joint training;
• Work in partnership with the Board to champion the policy, and challenge appropriately where concerns arise that the principles and values contained within the policy are not being met;
• Support their members, where issues in relation to equality, diversity and human rights arise, ensuring that their members are aware of their rights and responsibilities under this and other relevant policies; and
• Participate in partnership monitoring, evaluation and review of the local policy.

2.5.5 Human Resources/Equality Leads will:

• Develop and deliver, in partnership, training on the Board's local policy for managers, trade union/professional organisation representatives and staff;
• Support the process of equality and diversity monitoring, identifying and achieving resulting improvement actions, and ongoing monitoring of the application of the policy;
• Advise managers on the correct implementation of the local policy; and
• Support staff by providing advice on the local policy.

2.6 Assessing Impact

2.6.1 Assessing impact involves considering relevant evidence in order to understand the likely or actual effect of policies and practices on those with protected characteristics, or those protected from discrimination/less favourable treatment under other relevant legislation. This includes:

• Ensuring that such policies or practices do not discriminate;
• Identifying any adverse impacts for particular groups;
• Considering how such policies or practices might better advance equality of opportunity;
• Considering whether such policies or practices will affect relations between different groups; and
• Considering whether such policies or practices interfere with ECHR rights. Where interference is identified, that the interference is legal, necessary and proportionate in relation to the aim of the policy/practice, or falls within a specific exception on the Article in question.

2.6.2 Impact assessment enables Boards to:

• Take effective action on equality, diversity and human rights;
• Develop better policies and practices, based on evidence; and
• Be more transparent and accountable.

2.6.3 Assessing impact is not an end in itself, but is an important part of policy and decision-making, which should lead to improvements in policies and practices. In this way, assessing impact should not be a retrospective action undertaken near the end of the process; but should instead be integral to the development, monitoring and review of policies from the outset.

2.6.4 In addition to the benefits outlined above, undertaking such an assessment and acting upon the results of the same may be used as evidence that Boards have paid due regard to the Public Sector General Equality Duty. In keeping with the specific duties Boards must assess and review policies and practices and publish, within a reasonable period of time, the results of any assessment where the policy or the practice applies.

2.6.5 Furthermore, Boards are required as part of this PIN policy, in the interests of transparency and accountability, to make the results of such assessments publicly available.

2.6.6 Boards should ensure that they have a clear local process for undertaking impact assessment and ensure that this is consistently applied, by requiring that those participating in such a process are appropriately trained.

2.6.7 The General Duty applies across everything an NHSScotland Board does. 'Policy' in this context should therefore be broadly understood to embrace a range of different activities, such as setting budgets, developing high-level strategies, and organisational practices such as internal restructuring. However, this does not mean that everything a Board does should necessarily be subject to impact assessment. Rather, the extent to which policies should be subject to impact assessment will depend on questions of relevance and proportionality.

2.6.8 The following questions can help to identify relevance (although this list is not exhaustive):

• Does the policy affect service users, staff or the wider community, and therefore potentially have a significant effect in terms of equality, diversity and human rights?
• Is it a major policy, significantly affecting how functions are delivered in terms of equality, diversity and human rights?
• Will it have a significant effect on how other organisations operate in terms of equality, diversity and human rights?
• Does it relate to policy areas or issues that previous consultation or involvement activities have identified as being important to particular protected groups?
• Does it relate to an area where the Board has identified a need to improve equality outcomes?
• Does it relate to an area where there are known inequalities?
• Does it relate to a policy where there is significant potential for reducing inequalities or improving outcomes?

2.6.9 In preparing to undertake an impact assessment, the following should be considered:

• What are the aims of the policy, and how do these relate to equality, diversity and human rights?
• Which aspects of the policy are particularly relevant to different elements of the general duty?
• To which of the protected groups is the policy relevant?
• What evidence is already available about the needs of relevant groups, and where are the gaps in evidence?
• Which communities and groups might it be helpful to consult or involve in the development of the policy?

2.6.10 Having collected relevant evidence, this then should be brought together and applied to the policy as it is developed or reviewed. Boards should make a judgement at each stage of the process as to what the likely effect will be and consider whether changes should be made to the policy.

In relation to 'eliminating discrimination', is there evidence to indicate that the policy:

• May result in less favourable treatment for particular groups;
• May give rise to indirect discrimination; and
• Is more likely to assist or impede the Board in making reasonable adjustments.

In relation to 'advancing equality of opportunity', how will the policy help:

• Remove or minimise disadvantage;
• Meet the needs of different groups; and
• Encourage increased participation of particular groups.
• In relation to 'fostering good relations', how will the policy help to:
• Tackle prejudice; and
• Promote understanding.

2.7 Raising Awareness

2.7.1 Boards must ensure that all staff (including managers) understand what the Board's policy on equality, diversity and human rights means for them, with regards to both rights and responsibilities. Communication of and training on the policy also helps to demonstrate that the Board is genuinely committed to preventing discrimination, promoting equality of opportunity, valuing diversity and recognising human rights.

2.7.2 Communication

Boards should ensure that the policy is publicised widely using appropriate communication channels (e.g. team briefing, local partnership arrangements, intranets, notice boards and directly to staff via pay slip distribution).

2.7.3 Induction

As part of corporate induction programmes, Boards are required to include the following, which should ideally be delivered on a face-to-face basis by a director/senior manager, alongside a partnership representative:

• A clear statement on the Board's commitment to equality, diversity and human rights;
• Rights and responsibilities of staff under the Board's policy (including the potential consequences of inappropriate behaviour);
• How to respond if they receive or witness inappropriate behaviour; and
• This should subsequently be followed up by participation in training as outlined below.

2.7.4 Training

• Mandatory training on the Board's policy should be undertaken by all staff, particularly where the policy has been revised;
• Such training may be delivered alongside training on the Board's policy developed in line with the Preventing and Dealing with Bullying and Harassment PIN policy; and
• Training should cover the following:
  • Relevant legislation (including personal liability)
  • Appropriate/inappropriate behaviours
  • The importance of not ignoring or seeming to approve of inappropriate behaviour by others
  • The potential impact of inappropriate behaviour on both staff and the organisation
  • Monitoring
  • The Board's policy (including why it exists and how it operates in practice)
• Additional targeted training should be developed and delivered in response to any issues identified as part of the monitoring process.

2.8 Monitoring

2.8.1 Monitoring and evaluation, and subsequent action, is essential as it will help to ensure that the equality, diversity and human rights policy is successfully applied, is known about and works. Further information is contained at Appendix 2.

2.8.2 Only information which can be used effectively should be collected. Boards should monitor the following information, where available, in relation to each of the protected characteristics listed under the Equality Act 2010 plus the Equality Act 2010 (Specific Duties) Scotland Regulations 2012.

2.8.3 In addition, Boards should note their responsibilities towards other categories of worker (e.g. those with part-time or fixed-term contracts, as detailed in the other PIN policies). This list, contained in the following table, is not exhaustive and Boards may therefore wish to consider monitoring additional areas:

Recruitment (including redeployment and successful and unsuccessful applicants)	Applicants for employment (internally and externally)
	Those who are successful (or not) in the short-listing process
	Those who are successful (or not) at each subsequent stage of the selection process
During employment (including those on fixed- term contracts and promoted)	Members of staff in post by job, location and band/grade
	Applicants for training
	Members of staff who receive training
	Time spent at a particular band/grade
	Members of staff who benefit (or not) via PDPR/Appraisal procedures (e.g. gateway progression with KSF or PRP with Executive & Senior Management Cohort)
	Requests for flexible working
	Allocation of discretionary points in the case of medical/dental staff
	Pay
	Occupational segregation
	Members of staff involved in grievance/dignity at work procedures
	Members of staff subject to formal procedures relating to conduct, capability or sickness absence
	Members of staff displaced as a result of organisational change
Termination of employment	Dismissals
	Retirement
	Resignation (including exit interview information)
	Termination for other reasons

2.8.4 Boards should provide details of the process in place for gathering, storing and using this information in order to provide reassurance that they will not use this information to discriminate against, harass or victimise.

2.8.5 Boards must not treat applicants or existing members of staff less favourably if they prefer not to supply any information in this regard.

2.8.6 It is important to decide who can see the data collected. Individual data needs to be shared on a 'need to know' basis only, and should be protected and securely stored in line with the Data Protection Act 1998.

2.8.7 Boards should agree in partnership, via their Area Partnership Forum, the method, and frequency of which, monitoring information will be collated and analysed. Analysis might include:

• Comparisons with regional representational data to see how far the workforce reflects the local community;
• Comparisons with industry standard data to see how the organisation compares to others in the sector;
• Comparisons with previous organisational data, looking for patterns or trends; and
• Comparison of the position and treatment of members of staff with certain protected characteristics within the workforce compared with those without those characteristics.

2.9 Action Planning

2.9.1 Monitoring should be used to:

• Establish whether the Board's policy is effective in practice;
• Analyse the effect of other policies and practices on staff with particular characteristics;
• Highlight possible inequalities and investigate their underlying causes;
• Set targets and timetables for reducing disparities; and
• Send a clear message to applicants and members of staff that equality, diversity and human rights issues are taken seriously within the Board.

2.9.2 Local partnership arrangements should agree equality outcomes, which should be monitored and reviewed regularly and in accordance with relevant legislation, with a plan detailing how these objectives will be met.

2.9.3 Action plans should detail initiatives/developments that will help the Board to address short-term, as well as medium- to long-term goals, with the aim of improving equality, diversity and human rights within the organisation.

2.9.4 The roles and responsibilities of the Board's constituent parts for achieving the action plans should be clearly set out and action plans should be populated with SMART (Specific, Measurable, Achievable, Realistic and Timed) actions.

2.9.5 Boards should ensure that communication on progress against and achievement of such objectives is made to both managers, staff and trade union/professional organisation representatives, and should be published in the annual report.

2.10 Success Criteria

2.10.1 Every Board must ensure that:

• It has a current equality, diversity and human rights policy, which meets the minimum requirements of this PIN policy;
• It can demonstrate appropriate monitoring activity and analysis;
• It has an action plan which sets out how its agreed equality objectives, as identified from analysis of monitoring information, will be achieved;
• It can demonstrate that its employment policies reflect the principles of equality, diversity and human rights, in both design and application;
• It can demonstrate that staff are aware of the Board's policy, their rights and responsibilities under the policy, and how they can raise concerns in relation to equality, diversity and human rights (including who they can contact for advice in this regard);
• It meets the criteria to use the employment service, 'Two Ticks', disability symbol;
• It can demonstrate it requires all staff to participate in training on equality, diversity and human rights; and
• It can demonstrate that it has a regular partnership review process, to ensure that the policy remains fit for purpose and evidences adherence to the PIN policy.