Equality Duty Revised Draft Regulations Analysis of Consultation Findings

SECTION 3: FINDINGS - PROPOSALS RELATING TO EMPLOYMENT INFORMATION

3.1 This section presents the findings on proposals relating to employment information (covered by Regulations 6,7 and 8).

Gathering information on protected characteristics of employees

3.2 The revised proposals involve making explicit that all authorities (with employees) subject to the Specific Duties must gather information across all relevant protected characteristics of employees. Question 6 asked:

"Do you agree that authorities subject to the Specific Duties should be required to take reasonable steps to gather information on the relevant protected characteristics of employees, including information on the recruitment, retention and development of employees?"

Table 7. Responses to yes/no/don't know element of Question 6

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	123	88	96
No	4	3	3
Don't know	1	1	1
Not answered	12	9
Total	140

3.3 This question was addressed by 133 respondents (95%), and almost all of these (128) addressed the "yes", "no" or "don't know" element. There was a high level of agreement, both among respondents covered by the Regulations and those not covered, and 96% of those who addressed this element stated "yes". Only 4 (3%) stated "no" and 1 answered "don't know". A small number of respondents (6) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that 3 agreed with the proposal, at least in principle, and 3 made comments from which their overall view could not be inferred.

3.4 A large number of respondents (90%) made additional comments at this question, and a few additional comments were made elsewhere. These again focused on: perceived benefits of the proposal or general expressions of support; issues and concerns; and suggestions or requirements for the way forward, the latter being the most common theme.

Perceived benefits of gathering information

3.5 Around two thirds of respondents who made comments, including respondents of different types identified benefits of this proposal, or stated their support for it. Most of these comments either provided general support, or focused on the perceived impact on equality. A further theme (identified by a smaller number of respondents) related to benefits in terms of the impact on aspects of the approach / process in public authorities.

3.6 General expressions of support included a number of respondents who expressed agreement or strong agreement, or stated that this was "reasonable" or "sensible". Several stated that they welcomed the proposal, or specific aspects of it (e.g. strengthening the Regulation; the extension of the Duty to gather information about employees to a broader range of indicators; the inclusion of all protected characteristics; the recognition of the need for sensitivity in collecting the data; and, for two respondents, the inclusion of the word "reasonable", although others expressed disagreement with this). A small number of respondents from organisations covered by the Regulations stated that they already took the proposed approach, and could extend it to all protected characteristics. A small number identified problems with the current situation (e.g. a "two tier" system of equality groups; and the existence of barriers and discrimination). One respondent from a trade union / professional body identified that, as a result of forthcoming organisational changes, there would be a need for those compiling the information to gain a detailed understanding of the workforce.

3.7 A number of respondents identified benefits of the proposal in terms of the impact on equality. One of the most common ways in which this was seen to be the case was the view that it would provide evidence to support equalities work, measure progress, evaluate the impact of policies and practices, and demonstrate achievements (including to regulatory bodies). Linked to this, other common benefits identified were that it would: highlight barriers, gaps and discrimination in employment (including multiple discrimination); prevent discrimination; and prompt and support action to address this. Several respondents also stated that it would help to advance the General Duty, aid compliance with this, support impact assessment and demonstrate implementation of the General Duty. It was also stated that it would ensure that the whole employment cycle is addressed, and provide more meaningful information. For one organisation, it was suggested that it would provide them with service user information (with their service users being the employees of other public bodies).

3.8 Among the smaller number of comments about a perceived positive impact on aspects of the approach / process in public authorities were that it would: enable scrutiny; improve transparency and accountability; provide an evidence base; enable benchmarking; improve consistency; emphasise the importance of data collection; assist decision-making and enable appropriate use of resources.

Issues or concerns raised - gathering information

3.9 The smallest proportion of additional comments related to issues or concerns, and these were identified by around a third of respondents who made comments. These were raised by respondents of different types, and particularly, but not only, those covered by the Regulations. The main themes were: data collection and storage (the most common issue); aspects of the substance of the Regulation; and the perceived impact on practice.

3.10 The most common issues raised related to data collection and storage. Several respondents stated generally that gathering accurate and meaningful equality data is a challenge for public authorities or identified more specific perceived challenges in gathering data including: sensitivity of data relating to some protected characteristics (although it was suggested that this should not be seen as a reason not to try to gather information); difficulties in gathering information from existing employees; reliance on voluntary disclosure (although the importance of protecting the right to choose not to disclose was also stressed); concerns among employees and unwillingness to disclose (particularly for some protected characteristics); and difficulties in gathering information about "development".

3.11 A small number of respondents highlighted difficulties with the retention and use of information, including: data protection implications and confidentiality; robustness of the data where numbers are small; and the potential for unfair comparisons to be made between different public authorities. A few respondents stated that their support for the proposal was subject to particular conditions relating to data (e.g. that the information is kept securely, accessed and disposed of appropriately, and used to effect change and assist in the performance of the General Duty).

3.12 Several respondents raised issues or concerns with the substance of the Regulation. Among these were perceived gaps, such as: the lack of an explicit requirement to gather data on service users (an issue raised by a small number of respondents from education organisations); lack of reference to internal Human Resources activity; lack of mention of job applicants; and lack of a cross-reference to the publishing duty in Regulation 4. One respondent from a trade union / professional body stated that 6(1)(b) is ambiguous and that it is not clear exactly what information authorities are required to collate, nor how it will be gathered. It was also suggested that the timescale is inconsistent with other requirements (e.g. Regulation 8). A small number of wording issues were also raised, including that: "reasonable steps" is insufficient and open to interpretation; and that "development" is very wide and could pose problems for employers to monitor.

3.13 A small number of concerns were also highlighted by a few respondents relating to the perceived impact on practice. These included that: the effect may be to deter information gathering, detract from equality objectives or other work; there would be an increase in administration and bureaucracy; and the proposal would have cost and other resource implications. A small number of respondents questioned the effectiveness of the Regulation (e.g. in increasing accountability and transparency) or its relevance. A small number stated that the Regulation is not necessary (e.g. as it is already implicit in the General Duty).

Suggestions for the way forward - gathering information

3.14 The largest number of comments, made by respondents of different types, focused upon suggestions or perceived requirements for the way forward. Comments related to the following themes: the means of implementation; aspects of the substance of the Regulation; and guidance.

3.15 A number of respondents made comments on the means of implementation. Several, for example, expressed views that the emphasis should be on "reasonable" steps and relevant information, that it should respect employees' right not to report, or that it should use existing arrangements. It was also suggested that the approach should be clear and proportionate and should take account of existing data gathering and reporting requirements. A small number of respondents of different types suggested the importance of undertaking some preparation / support work (e.g. keeping staff informed and supported to understand the requirement; training for staff; work to ensure that employees are clear about why the information is required; wider awareness raising; and the development of a culture of trust, respect and accountability). It was also suggested that the Scottish Government should provide a clear lead. One equality organisation respondent suggested that unions should strengthen their monitoring and reporting of discrimination in the workforce. Another stated that they would not support the inclusion of information about development without further information / resources, and another that practical resources would be required for implementation.

3.16 Several respondents (particularly, but not only from equality organisations) made suggestions about types of data for collection, and issues for inclusion. In terms of types of data, suggestions included: quantitative and qualitative data; surveys; longitudinal data; and data to reflect the complexity of people's beliefs. Additional issues identified for inclusion in the data gathered included: those who "prefer not to answer" and nil responses; leavers, and reasons for leaving employment; applicants; those shortlisted; interviewees; appointees; those promoted; those changing positions; application of workforce practices; training; grievances; disciplinary procedures; individuals' refugee status; gaps between groups with different protected characteristics; and information broken down by other factors.

3.17 Comments were also made about the use of data, by respondents of different types, including that: the evidence should be embedded into employment policies and practices; the information should be published; confidentiality must be protected; authorities should have discretion about how to present the information; there should not be "league table" comparisons; and there should be guarantees about security of storage. One equality organisation respondent stated that public bodies should have a duty to explain what the information is being collected for and how it will be used. Another stated that plans for any corrective action should be made public. A few respondents (equality organisations and an individual) suggested the need for monitoring and enforcement of the Regulation. One respondent identified an example of practice which they stated could be shared, while another suggested the value of this type of dissemination of experience.

3.18 Some comments were made by respondents (particularly, but not only who were covered by the Regulations) about the timing for implementation. Suggestions included: the general view that a timeframe should be set, or that the timescale should be "reasonable" and sufficient notice provided. Specific suggestions included: a 2, 3 or 4 year timeframe (by different respondents); and some form of "staggered" approach to implementation, with requirements relating to specific protected characteristics being introduced over a number of years. A small number of respondents (particularly, but not only trade unions / professional bodies and equality organisations) also identified the need for involvement of specific organisations in the collection of data, the identification of aims and methods, and subsequent changes. Suggestions included trade unions, equality organisations, employee networks and other relevant stakeholders (e.g. organisation-specific).

3.19 A small number of additional changes or wording amendments were suggested. Several respondents (largely from equality organisations and trade unions / professional bodies) suggested that the word "reasonable" should be removed, and the alternative "take all necessary steps" was also suggested. A smaller number of respondents suggested the removal of "relevant" or the replacement of "development" with more specific wording. It was also suggested that reference to the Regulation 4 publishing duty should be made in Regulation 6 and one equality organisation respondent suggested that there should be an annual requirement to publish. A further trade union / professional body respondent argued that there should be a threshold of 150 employees for this information.

3.20 Other suggestions included that: there should be a specific requirement to set employment targets and adopt positive action measures to counter under-representation in employment; reasons for any lack of success and plans for improvement to information collection should be provided; and that there should be explicit reference to the whole employment cycle. It was also stated that it should be made clear that there are circumstances in which an authority may legitimately withhold some data from publication. A small number of respondents stated that service users should be included in these Regulations. One respondent stated that the Duty should make reference to gathering information relevant to all public appointments, whether remunerated or not, and whether regulated or not.

3.21 A number of comments were made about guidance, particularly, but not only by those covered by the Regulations. These included the overall need for clear and appropriate guidance, and suggested issues for inclusion or further clarity. In relation to the latter, the issues highlighted for inclusion or clarity were: what constitutes reasonable steps; what information to gather; what methodology to use; terminologies and categories; what are "relevant" protected characteristics; what is "development"; what is "retention" and the implications of this data; how data should be recorded, stored, used and published; data protection issues; and generally translating the Regulation into practice. One respondent from an equality organisation suggested that guidance should emphasise that all of the information in the mainstreaming report should be able to be read on its own. A few respondents suggested that the Scottish Government should work with public authorities, equality groups and the Equality and Human Rights Commission to develop guidance. A small number suggested the development of a proforma or template, or the general provision of more support with implementation.

Use of employment information gathered

3.22 The revised proposals involve making explicit that all authorities (with employees) subject to the Specific Duties must use the employment information gathered to assist progress on the General Duty. Question 7 asked:

"Do you agree that authorities subject to the Specific Duties should be required to use the employment information which they have gathered to assist progress on the General Duty?"

Table 8. Responses to yes/no/don't know element of Question 7

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	122	87	95
No	5	4	4
Don't know	2	1	2
Not answered	11	8
Total	140

3.23 This question was addressed by 132 respondents (94%) and almost all of these (129) addressed the "yes", "no" or "don't know" element. There was a high level of agreement both among those covered by the Regulations and those not covered, and 95% of those who addressed this element stated "yes". Only 5 (4%) stated "no" and 2 answered "don't know". Among the small number who stated "no" were 3 education respondents. A small number of respondents (3) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that all three agreed with the proposal, at least in principle.

3.24 A large number of respondents (86%) made additional comments at this question. Again, these identified: benefits of using the employment information gathered in this way; issues and concerns; and suggestions or perceived requirements for the way forward. Most of the comments focused on benefits or expressions of support, with few comments on issues and concerns; and relatively few on suggestions or requirements. Some mentioned previous comments at Question 6, which will not be reiterated here.

Perceived benefits - use of employment information gathered

3.25 Around three quarters of respondents who made comments identified benefits of, or support for this proposal. These were made by respondents of different types. Themes included: expressions of overall support; a perceived positive impact on equality; and a perceived positive impact on the approach / process within public authorities.

3.26 The largest number expressed their overall support, welcomed the proposal or made general comments about the value or importance of this. Several of these respondents expressed the view that this is an appropriate, logical and sensible use of the data, or that it constitutes good practice. Several also stated that this should be the reason for gathering the information, or that there is little point in collecting the data unless it is used to promote the General Duty and improve outcomes for equality groups. A small number of respondents made reference to aspects of the current situation which support the proposal (e.g. the existence of a "two tier" system of equalities; the lack of analysis and use of data in some cases; and, in some cases, positive or relevant practice already taking place).

3.27 Related to this, a further common theme was the perceived positive impact of the proposal on equality. This was identified particularly by equality organisations and local authorities, as well as some other respondents. The largest number of comments suggesting this type of impact focused on the perceived impact on the General Duty. Comments included, for example, that the proposal is consistent with the requirements of the Duty (which covers public authorities as employers, service providers and influencers of relationships between people with different protected characteristics), or that the use of the information is necessary in order to address the Duty.

3.28 Closely linked to this, several respondents (particularly, but not only from equality organisations) argued that the proposal would promote action to identify and tackle discrimination and inequality in employment, by: highlighting any adverse / negative trends in the data; reflecting local circumstances (along with other equalities information); supporting impact assessment; informing improvement measures; assisting planning; and helping to target work. Comments also included that the proposal will help to assess the progress that public authorities make in relation to achieving positive outcomes, or that it will help demonstrate to employees and other stakeholders how the employer meets the General Duty. A small number also suggested that the proposal is consistent with mainstreaming equality, helping to embed this in workplace practice.

3.29 Several respondents identified a positive impact of this requirement on the approach / process within public authorities, in terms of: consistency; parity; a proportionate approach; transparency, accountability and scrutiny; an evidence-based approach; and improved involvement of people with protected characteristics and their organisations. A small number of respondents identified a positive impact on employees, in terms, for example, of improved engagement, the reassurance that the information will be used positively, and awareness of how the employer addresses the General Duty. A few respondents made reference to the proposal being a good use of resources, or making business sense (e.g. in terms of attracting and retaining a wide and diverse pool of applicants, and impacting on the local labour market). One local authority respondent stated that, if the data was not used for the purpose proposed, the authority could be in breach of the Data Protection Act.

Issues or concerns - use of employment information gathered

3.30 Around a fifth of respondents who made additional comments raised issues or concerns relating to using the employment information gathered. Almost all of these comments were made by respondents from organisations covered by the Regulations, and generally by respondents in support of the proposal. Most focused on the collection and use of data, although other themes identified were: the potential impact of the proposal on other issues; the effectiveness or need for this; and some other specific concerns.

3.31 In relation to data, a small number of respondents (particularly some local authorities), for example, stated that there are still challenges in the collection of such employment information (e.g. lack of standardisation; insufficient staff; definitional issues; and inadequate systems) and in the storage of this. A further data issue raised related to perceived gaps in the data, such as low self-disclosure rates and concerns about robustness. A few respondents also raised concerns about the use of data, such as difficulties of comparison, and presentation without contextual commentary.

3.32 Comments about the potential impact of the proposal on other issues, or the effectiveness or need for the proposal were made largely (but not only) by respondents who disagreed with the requirement. In terms of the impact on other issues, the concerns raised (by small numbers in each case) related to a potential negative impact on: the level of bureaucracy; resources (e.g. administration, time and other resources); staff perceptions; and other aspects of equalities work (e.g. discouraging information gathering, losing the focus on compliance with the General Duty, or leading to the adoption of "quotas").

3.33 A small number of respondents questioned the effectiveness of the proposal (e.g. on accountability and transparency), or the relevance of the information gathered. A small number of respondents suggested that a specific Regulation is not required, either because it is already implicit in the General Duty, or because the respondent believed that it should be the responsibility of public authorities to decide how best to use the employment information they have gathered, without the need for a specific duty to ensure this.

3.34 A small number of other issues were raised. It was suggested, for example (as previously) that service users, and particularly students in the case of higher and further education, should be included. One individual respondent raised an issue with the use of the wording "should be required" at Question 7, stating that compliance with the Duty is one of the prime reasons for requesting personal information.

Suggestions for the way forward - use of employment information gathered

3.35 Around a third of respondents of different types who made comments identified suggestions or perceived requirements relating to using the information gathered to assist progress on the General Duty. The largest number of these comments focused on issues relating to the data and the use of data, although comments were also made about other aspects of implementation, and issues for inclusion in guidance.

3.36 In relation to data, suggestions were made about specific types of data for collection (covered at the previous question). Suggestions were also made about the use of data. These included that data collection should not be an end in itself, should be used in a relevant way, and should be analysed and used to inform: current and future workplace policies; strategic workforce planning; organisational restructuring; future positive action work; and equality objective setting. One respondent from an equality organisation suggested that the Regulation should be more meaningful than a requirement to "use" the data. It was also suggested by an education respondent that employment monitoring duties should require public authorities to take action on the evidence they collect to reduce inequality in the workplace. Other respondents stated that information gaps should be identified and used to inform further action / progress and that the information gathered should be considered alongside other data where appropriate.

3.37 Comments were also made on reporting and publication of the information. It was suggested, for example, that reporting of progress could include asking authorities what they have used employment data for in terms of change. A small number of respondents highlighted a perceived need for the information to be publicly available, or made comments on issues for inclusion in published information. A small number stated that there is a need to capture or publish why any information which points to a need for remedial action is not acted on. A specific suggestion from an individual respondent was that the reports required under draft Regulation 4(2)(b) must include reference to gaps, shortfalls, or targets the authority has identified in its employment profile, to evidence meeting the General Duty. A small number of respondents suggested that the extent to which the information is taken into account, and the presentation of the information, should be matters for discretion by the public authority.

3.38 A small number of respondents (particularly, but not only from organisations covered by the Regulations) highlighted the need for care in evaluation, interpretation and presentation of the data. One individual respondent stated that, if an authority has gained private and confidential information about an employee other than directly from the employee concerned, that confidentiality should be protected. In terms of presentation of the data, the need to comply with data protection requirements and protect confidentiality was again stressed. As at Question 6, a few respondents specifically qualified their support for the proposal with requirements relating to the use of data, including the need for the information to be handled sensitively, kept securely, accessed and disposed of appropriately, and used to effect change.

3.39 A small number of comments were made about other aspects of implementation of the proposal, by a small number of respondents. It was suggested, for example, by a health respondent that this would be a long term process. One respondent stated that information should be gathered and published on an annual basis. Another suggested that it is important to ensure that all policies are fair to all employees. A further respondent stated that monitoring employees should not be the only measure of fostering good relations, with a perceived need for inclusive commissioning of services with voluntary sector providers. One local authority respondent stated that resources and system amendments will be required to implement the proposal. Another respondent argued that the threshold should be reintroduced.

3.40 Several respondents (particularly, but not only some respondents from local authorities and "other" public bodies), commented on issues for guidance or clarity. In terms of issues suggested for inclusion in the guidance, these were: what data is required to demonstrate this; how to collect and manage the information; how to use the data to assist progress; limitations to data; data protection; and the importance of positive action, setting equality targets and outcomes. In addition, a small number of issues for clarity were suggested, including: the employment information which should be collected and published; what exactly an authority is obliged to report upon; what is intended by "progress"; and whether or not the data would inform actions clearly.

3.41 A small number of comments were made on other forms of support that would be useful, with a small number of local authorities stating that some of the data issues would be best tackled through a national strategic approach. They expressed the view that the Scottish Government, supported by relevant strategic partners, should continue to consider ways of tackling these problems and take appropriate steps to ensure effective compliance with this requirement. A further respondent from one of the "other" public bodies stated that there would be benefit in information sharing between public authorities.

Reporting on progress on gathering and using employment information

3.42 The revised proposals involve making explicit that the information gathered should be reported. Question 8 asked:

"Do you agree that authorities subject to the Specific Duties should be required to report on progress on gathering and using employment information, including an annual breakdown of information gathered, within the mainstreaming report?"

Table 9. Responses to yes/no/don't know element of Question 8

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	113	81	87
No	9	6	7
Don't know	8	6	6
Not answered	10	7
Total	140

3.43 This question was addressed by 133 respondents (95%) and almost all of these (130) addressed the "yes", "no" or "don't know" element. There was a high level of agreement both among respondents covered by the Regulations and those not covered, with 87% of those who addressed this element stating "yes". Only 7% stated "no" and 6% answered "don't know". Around two thirds of those who stated "no" or "don't know" were from organisations covered by the Regulations, and around a third were from respondents not covered. A small number of respondents (3) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that 2 disagreed with the proposal, or a specific aspect of this, while 1 made comments from which their overall view could not be inferred.

3.44 A large number of respondents (84%) made additional comments at this question. These focused on the benefits of this proposal and general expressions of support (the largest proportion), issues and concerns (a smaller proportion) and suggestions or perceived requirements for the way forward.

Perceived benefits of reporting on progress with employment information

3.45 The largest number of additional comments, made by respondents of different types, focused on perceived benefits, or general support for this proposal (around two thirds). Among these, the most common themes related to expressions of general agreement, or views that there would be a positive impact on equality. A number of respondents also identified a positive impact on the overall approach / process within public authorities, and a small number of respondents identified benefits relating to resources.

3.46 A number of respondents made general comments. These included stating that: they welcomed or supported the proposal; or that it would be useful, logical or appropriate to do this; or that it is important to report on the employment information gathered and the use of this. Some references were made to previous comments, which have already been included and will not be reiterated here. A small number of respondents from organisations covered by the Regulations stated that public bodies are already doing this, or expressed this view that the proposal is consistent with their current practice / commitment (although some added that it can be reinforced through the Specific Duties). A small number also stated specifically that it is sensible to include this within the mainstreaming report.

3.47 The most common benefits identified at Question 8 related to the perceived positive impact of the proposal on equality, raised particularly, but not only by equality organisations and local authorities. Several respondents highlighted the potential impact on mainstreaming. For example, comments included that this requirement was an important part of mainstreaming equalities, or would make action to mainstream equalities into the employment function more likely. A small number of local authority respondents also stated that it is in employment that inequalities are often most glaring. It was also suggested that the proposal would: demonstrate what is involved in mainstreaming; ensure that links can be made to the progress on actions and outcomes in the mainstreaming report; and help to monitor progress on mainstreaming.

3.48 A further perceived benefit in relation to equality was that the proposal would generally help to promote and target such work. Examples, from respondents of different types, included the views that it would be important in order to: raise awareness of the role of employers in promoting equality; give a high profile to equalities work; encourage the use of the information to advance equality; identify trends and concerns; prompt action; and identify good practice. It was also suggested that, in relation to equality in employment, the proposal would help to: benchmark achievements; review and analyse trends; and monitor, record and highlight progress or regress. Several respondents stated that the proposal would have a positive impact on addressing and demonstrating implementation of the General Duty. Other comments included that the proposal would prevent tokenism, prevent a hierarchy of equalities work and provide evidence of a commitment to equality.

3.49 A number of respondents of different types also made comments about the benefits of the proposal in terms of other aspects of a public authority's approach or process. The most common was the view that it would lead to greater transparency and openness and would allow interested parties to identify the position in relation to equality. Other perceived benefits relating to the approach or process included a positive impact upon: accountability; consistency and parity; engagement; consideration and interpretation of evidence; and the accessibility of information. A few respondents from organisations covered by the Regulations identified benefits relating to business, management or resource issues, stating that: it makes sound business sense; is easier to manage in one report; and ensures that the task is not too onerous.

Issues or concerns raised - reporting on progress with employment information

3.50 Around a fifth of respondents who made comments raised issues and concerns with this proposal. These were largely (although not only) drawn from respondents who disagreed with the proposal, or who stated "don't know", and were made by respondents of different types. Issues or concerns were raised about: reporting; data; resource implications and effectiveness; or specific wording in the Regulation.

3.51 In relation to reporting, comments included a perceived lack of clarity about: why this area of reporting would be included in the mainstreaming report; the nature and purpose of the mainstreaming report; and whether the data to be published should be a snapshot or rolling total. One respondent questioned whether the distinction between a biennial mainstreaming report and the proposed annual breakdown of information was intentional. A small number of respondents expressed doubts about including this information in the mainstreaming report, and one expressed disagreement with having a mainstreaming report and the compulsion to report on information gathering. A few respondents expressed concerns about the requirement for annual information.

3.52 A small number of respondents, from education, health and "other" public bodies, identified issues or concerns relating to data, including: perceived weaknesses or gaps in data; data collection issues; data protection; and concerns about interpretation of the data (e.g. that progress or lack of it may not indicate failure to meet the General Duty; and the potential for unfair comparison).

3.53 Two education respondents raised concerns relating to resource implications (e.g. increased administrative requirements; and a preference for targeting resources at analysis of evidence and implementation of action rather than report writing), or, in one case, a perception that the proposal would have limited effectiveness in increasing transparency and accountability.

3.54 In terms of wording, a small number of respondents (from the categories of trade union / professional bodies and "other" public bodies) identified a lack of clarity about the use of the term "progress" in the consultation document. It was suggested that it seems to mean different things at different questions without a full definition at each. In relation to Question 8 specifically, it was suggested that it was unclear whether the term referred to steps undertaken to try and capture the data, as well as the steps taken to address potential discriminatory practices.

Suggestions for the way forward - reporting on progress with employment information

3.55 Over half of the respondents (of different types) who made comments at this question identified suggestions or perceived requirements for the way forward (most, but not all of whom answered "yes" at this question). The largest number of suggestions related to reporting requirements, or the provision of guidance. Other themes (with smaller numbers of comments) related to data issues, and to other aspects of implementation.

3.56 In relation to reporting requirements, the most common suggestions related to timing issues, or to the nature of the report and issues for emphasis or inclusion. In terms of timing, a small number of respondents particularly, but not only from equality and education organisations, expressed the view that the information should be published on an annual basis (e.g. to: increase transparency; allow "timely" analysis of equality issues; provide a regular update for dissemination; enable assessment of the effectiveness of the Specific Duties; and identify action needed). Conversely, a small number of other respondents from organisations covered by the Regulations suggested that there should not be an annual requirement, or expressed a preference for a two year timescale (e.g. to allow better analysis of trends and progress over time; enable meaningful conclusions and improvement plans; and align with the mainstreaming report timescale).

3.57 A small number of additional suggestions were made relating to timescales. These included a perceived need for time to develop robust data systems (with one health respondent, for example, stating that a four year timeframe would allow this, while recognising that some authorities already have processes in place). It was also suggested that it would be helpful for public bodies to report in line with their usual business cycle, rather than waiting to report separately. Other suggestions were that current systems and mechanisms should be used to support the requirement and that reporting requirements should be kept to a minimum. One respondent raised a question about whether the report could be merged with another document, while another stated that existing duties to gather and report data should be acknowledged.

3.58 Several respondents made comments on the nature of the report, or suggested issues for emphasis or inclusion. In terms of the nature of the report, comments included that it should be: simple; evidence-based; accessible; and consistent (both across authorities and with existing reporting duties). A few respondents, largely from among those covered by the Regulations, stated that public bodies should have discretion to determine how and / or when the information is presented, and, as noted above, a few respondents stated that the information should not be included in the mainstreaming report. One respondent from an equality organisation suggested that the report should be able to stand alone. A small number of respondents suggested that public authorities should be asked to publish all material covered by the Regulations in their existing public performance reporting (e.g. in a discrete section) or in the same way as impact assessment. As noted, it was also suggested by a few respondents that public authorities should build this into their business cycles.

3.59 Several respondents suggested specific additional issues for inclusion in reporting, and these were: the information gathered and the reasons; contextual information (with one respondent, for example, suggesting that there needs to be an accepted means of comparing organisations' workforce with the local labour market); analysis of available data; gaps in knowledge; and planned future actions. A small number of respondents suggested the inclusion in the mainstreaming report of service delivery as well as employment objectives and outcomes reporting. One health respondent suggested a change of wording to require to "report on the outcome as a result of gathering and using employment information". As noted above, there was also seen to be a need for clarity about some aspects of reporting, identified previously.

3.60 A small number of respondents made comments on data issues and some of these also related to issues for inclusion (in this case, types of data). Suggestions included: the number for whom no relevant data is held; headline data, key trends and changes; and a breakdown by characteristic (and covering all protected characteristics). One respondent stated that reporting should include information on other characteristics such as refugee status, while another argued that there should be specific reference to the gathering and use of information relevant to all public appointments, with information extended to include Board members.

3.61 A small number of comments were also made about data use, generally by organisations covered by the Regulations. Comments included: the importance of adhering to the Data Protection Act and protecting confidentiality in publishing employee information; the need to use data contextually; and appropriate data handling and use. It was also suggested that there should be proportionality in the amount of breakdown required, and that the local context must be factored in to any understanding of the data. A small number of comments were also made on other aspects of implementation. For example a few organisations suggested that they would be keen to assist in the monitoring of progress made in data collection methods. A small number stated that they would like to see information on how the Equality and Human Rights Commission would monitor this and / or take action should the situation not improve over a reasonable period of time, or to know what the repercussions would be for those who fail to report.

3.62 A number of respondents (largely, but not only respondents covered by the Regulations), raised issues relating to the provision of guidance, with some stating the need for this. Suggestions were also made about the nature of guidance, and several suggested common standards and styles and / or a reporting template. One suggested a minimum basic data set. Additional issues highlighted for inclusion in guidance or further clarity were: the nature, form and content of a mainstreaming report; what "mainstreaming" involves; the timing of reporting; data gathering and analysis; and how to use the information to make change. A few respondents identified other forms of support which would also be helpful, such as: a national review and report; data and support from equality bodies; Government leadership and resources and wider culture change in data collection.

Equal pay statements

3.63 The revised proposals involve making explicit that the equal pay statement should extend beyond gender, to include disability and race. Question 9 asked:

"Do you agree that authorities with more than 150 employees should publish an equal pay statement, the first covering gender and the second and subsequent statements covering gender, disability and race?"

Table 10. Responses to yes/no/don't know element of Question 9

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	103	74	86
No	12	9	10
Don't know	5	4	4
Not answered	20	14
Total	140

3.64 This question was addressed by 131 respondents (94%) and almost all of these (120) addressed the "yes", "no" or "don't know" element. There was a high level of agreement both among respondents covered by the Regulations and those not covered, with 86% of those who addressed this element stating "yes". A total of 10% stated "no" and 4% answered "don't know". Around two thirds of those who stated "no" or "don't know" were from organisations covered by the Regulations, and around a third were from respondents not covered. Several respondents (11) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that 5 agreed with the proposal, at least in principle, while, in the remainder of cases, their overall views could not be inferred.

3.65 A large number of respondents (82%) made additional comments at this question. Common themes were the identification of benefits or support; issues or concerns; and, most commonly, suggestions or perceived requirements for the way forward.

Perceived benefits - inclusion of disability and race in equal pay statements

3.66 Around half of respondents of different types who made additional comments identified perceived benefits of, or expressed general support for the proposal. General expressions of support were most common, but comments were also made on themes relating to: a perceived positive impact on equality; or on the approach / process in public authorities.

3.67 In terms of general expressions of support, a number of respondents welcomed the extension of the equal pay statement to include race and disability, or stated their agreement, or strong agreement with this. A small number specifically welcomed the recognition of the additional time needed to gather data relating to disability, race and pay or the phased approach. One trade union / professional body respondent expressed overall support for the principle of reporting on occupational segregation across different protected characteristics. Several respondents made comments on the existing situation. These included, for example the views that: there are existing pay gaps and employment discrimination affecting these groups, as well as multiple employment barriers for some (points made particularly, but not only by some equality organisations); relevant arrangements are likely to be in place already; and this is consistent with current work / commitments, good practice and previous legislative requirements (points made particularly, but not only, by organisations covered by the Regulations).

3.68 A further common theme (highlighted particularly, but not only by equality organisations) was that the proposal would have a perceived positive impact on equality, in a number of ways. These included that it would help to: identify pay gaps and issues that need to be addressed (on a regular basis), not only between women and men, but other protected characteristics; focus attention on these issues; promote work to improve pay equality; and develop good practice. It was also suggested that it would demonstrate progress made, as well as the implementation and monitoring of pertinent legislation and duties. A few respondents also stated that it would demonstrate a commitment to equal pay beyond gender.

3.69 A small number of respondents suggested a positive impact of this proposal on the approach / process of a public authority, in terms of ensuring transparency and accountability. One respondent stated that the proposal makes sound business sense.

Issues or concerns raised - inclusion of disability and race in equal pay statements

3.70 Over a third of the respondents of different types who made additional comments identified issues or concerns with the proposal, and the most common related to aspects of the substance of the Regulation. Other themes about which issues were raised (by smaller numbers) related to: data issues; demands of implementation; and doubts about the perceived need for, or effectiveness of the proposal.

3.71 In terms of the issues raised about the substance of the Regulation, several respondents raised concerns about the exclusion of other protected characteristics (although some of these respondents supported the proposal overall). Comments included a general concern that the Regulation is confined to three characteristics, as well as that there was a danger of a hierarchy between protected characteristics. A few local authorities stated that the impression given that groups with other protected characteristics (which are not included) do not experience a pay gap is "unfortunate".

3.72 Several respondents (particularly, but not only from equality organisations and trade unions / professional bodies) also expressed concerns about the threshold for the requirement (e.g. that there should be a threshold at all; the view that the figure of 150 is too high; or, in one case "somewhat arbitrary"). It was suggested that equality should not be limited by the size of the public body, that many smaller public bodies would be excluded (and one respondent stated that a third would be exempt), and that they would have no impetus to improve standards. A small number of respondents stated that it is not clear who would be considered an "employee" for the purposes of the Regulation.

3.73 A small number of respondents expressed concerns about the timing, with suggestions that: the timeframe between first and second statements is too long; the intention to have two stages creates a hierarchy; the period anticipated between first and second statements is unclear; the date for the publication of pay gap information is unclear; and there are inconsistencies in timescales between the employment information requirements (Regulation 6) and the requirements relating to equal pay. A concern was also expressed that draft Regulation 8 could be interpreted as only requiring public authorities to publish equal pay statements alone on ethnicity and disability, and not go on to publish pay gaps between those groups and others.

3.74 In terms of other themes among the issues and concerns raised, several respondents covered by the Regulations made comments on data (some of which have been discussed previously). Broadly, these included: data collection difficulties; gaps in information; weaknesses in the data (e.g. accuracy; robustness; representativeness; difficulties of interpretation and comparison); and data protection concerns. Two health respondents made comments on the demands or implications of implementation. Such concerns included that the extension of equal pay statements may: be onerous; increase the risk of litigation; and dilute the focus on gender pay inequality. A small number of respondents (largely, but not only those who answered "no" to this question) made comments on the perceived need for, or effectiveness of the proposal. It was suggested that: the requirement is unnecessary or that it would be ineffective (e.g. in terms of the ability of a public authority to bring about equal pay; or with the value of an equal pay statement alone being perceived as limited).

Suggestions for the way forward - inclusion of disability and race in equal pay statements

3.75 Around two thirds of respondents of different types identified suggestions or perceived requirements for the way forward, and most reflected the issues or concerns raised above. Themes included: the substance of the Regulation; the presentation of data; other aspects of implementation of the proposal; and issues relating to guidance.

3.76 In terms of the substance of the Regulation, several respondents of different types stated that they believed that equal pay statements should cover all protected characteristics (with varying suggestions about the timescale for inclusion). Among the reasons given for the perceived need for inclusion of the other protected characteristics were: a view that discrimination and pay inequality also existed for other equality groups; avoidance of a hierarchy; promotion of a single approach to equality; consistency with the collection and analysis of information on all protected characteristics from April 2012; and the provision of an impetus for work to address pay inequality. One respondent stated that, should the statement remain purely gender, disability and race, then transgender identity must be included in the gender statement.

3.77 Several (particularly, but not only respondents from equality organisations and trade unions / professional bodies) made comments on the threshold, with most suggesting that it should be removed, and a small number suggesting that it should be revised to a lower figure, or kept under review. Among the reasons for such views were that: capacity should not govern equality; there should be a single approach to equality; discrimination takes place in smaller authorities; smaller authorities employ people with protected characteristics and should be covered; and this would allow workforce information to be gathered across Scotland. A small number of respondents suggested phasing in an extension of the proposal to smaller authorities (e.g. on an incentivised voluntary basis, or over a specified time period). A few other specific amendments were suggested, either relating to the removal of reference to 150, or in order to clarify who is included as an "employee" (to cover, for example: directly employed persons and / or persons otherwise charged with delivery of service of that listed authority; partnership bodies or arms length organisations involved in this; full and part time staff members; and temporary and / or sessional workers).

3.78 Some comments were made about timing, including that: this could be achieved in a 2 or 3 year timescale, or in a generally shorter timescale; interim reporting would be beneficial; the protected characteristics should be included from the first equal pay statement; or the information should be presented where readily available. One respondent from an equality organisation stated that Regulation 8(a) should specify a date (e.g. 31st December 2012 or 2013). A small number of respondents reiterated the proposed timescale, and a few suggested that the Regulation should not be as specific in relation to timing (e.g. requiring equal pay statements for characteristics other than gender after a reasonable amount of time). One local authority respondent stated that, if organisations are to be required to publish information on pay gaps by December 2012, this should be deferred for at least a year. A further specific suggestion was that it should be made explicit in Regulations 7 and 8 that pay gap information on the basis of ethnicity and disability will require to be published within 2 years of these equal pay statements.

3.79 A small number of other suggestions were made relating to the substance or wording of the Regulation. One education respondent, who disagreed with the proposal, stated that, at most, a general equal pay statement should be required. A suggestion by another education respondent was that it is more important that an authority set an equal pay outcome if it has a significant pay gap for a particular protected characteristic. A further education respondent expressed the view that, as equal pay is a specific term relating to women and men, it would be clearer to ask for a pay statement relating to race and disability in terms of occupational segregation.

3.80 Suggestions were also made about information that should be presented, and a few respondents believed that the nature of this should be made clear within the Regulation. Suggestions (made largely, but not only by equality organisations) for the types of information to be presented were: a wider range of indicators to help ensure that inequalities in specific areas of some organisations were not obscured by the use only of "headline" figures; information on horizontal and vertical occupational segregation; pay scales and comparison between groups; information on interaction between protected characteristics; and information on progress. One equality organisation respondent expressed a specific preference for the use of the mean. Another stated that information on disabled employees must be sufficiently specific (in terms of their impairment type) to ensure targeted and effective action. A few respondents suggested that there may be ways of reporting to avoid the identification of individuals, while one education respondent stated that, in relation to the statement covering disability and race, it should be acknowledged that broad figures could be provided to maintain anonymity. A further respondent stated that, while statements are required, data and information are not required.

3.81 Other suggestions about the presentation of information included a perceived need for: a narrative / commentary; SMART^[15] objectives in relation to addressing pay gaps; data gathering; full analysis; the identification of action; and positive action. Again, a small number suggested that such issues should be required or specified in the Regulation. Additional suggestions included the perceived need for: development of understanding of the reasons for data collection; sensitive interpretation of any data; a consistent approach; a fair and transparent methodology; a flexible methodology to factor in local structures and circumstances; and discretion for individual public authorities to determine the format and content of the statement.

3.82 Several respondents (generally, but not only from organisations covered by the Regulations) commented on other aspects of implementation of this Regulation. These included the perceived need for: other actions to tackle occupational segregation; the Scottish Government to publish plans to address the identification of a pay gap for other protected characteristics; and Scottish Ministers to release a statement demonstrating differences by equality group for remunerated and unremunerated Board positions by Chair and Member positions. Other suggestions were that: current systems and mechanisms should be used to support the requirement; all reports should be published; and action should be relevant and proportionate.

3.83 Several respondents (particularly, but not only from organisations covered by the Regulations) made suggestions about issues for inclusion in guidance, covering: how to address the Regulation generally; what to report on; data required; intersectionality and the interplay of factors; format and presentation of information; and protection of privacy. Additional issues for clarification from respondents of different types were highlighted as: how "150" should be defined (in terms of, for example, headcounts or full time equivalents); definition of "employee"; the inclusion of partnership bodies or arms length organisations in the quota; the definition of "statement"; the timescale required; how to assess the equal pay gap; requirements where staffing levels fluctuate; the reasons for the exclusion of other protected characteristics; and any plans to include these in the future. One local authority respondent stated that it should also be made clear that publishing information should not carry an expectation that this, in itself, will lead to the gap being reduced (given the influence of other factors).

Summary: Findings - proposals relating to employment information

3.84 In summary, the main points relating to Section 3 are as follows:

• In relation to Question 6, there was a high level of agreement both among respondents covered by the Regulations and those not covered, that authorities subject to the Specific Duties should be required to take reasonable steps to gather information on the relevant protected characteristics of employees, including information on the recruitment, retention and development of employees. A total of 96% of respondents who addressed the yes/no element stated "yes".
• In relation to Question 7, there was a high level of agreement both among those covered by the Regulations and those not covered, that authorities subject to the Specific Duties should be required to use the employment information which they have gathered to assist progress on the General Duty. A total of 95% of respondents who addressed the yes/no element stated "yes".
• In relation to Question 8, there was a high level of agreement both among respondents covered by the Regulations and those not covered that authorities subject to the Specific Duties should be required to report on progress on gathering and using employment information, including an annual breakdown of information gathered, within the mainstreaming report. A total of 87% of respondents who addressed the yes/no element stated "yes", 7% stated "no" and 6% answered "don't know".
• In relation to Question 9, there was a high level of agreement both among respondents covered by the Regulations and those not covered that authorities with more than 150 employees should publish an equal pay statement, the first covering gender and the second and subsequent statements covering gender, disability and race. A total of 86% of respondents who addressed the yes/no element stated "yes", while 10% stated "no" and 4% "don't know".
• Additional comments made at all of these questions focused on three main areas: perceived benefits or general support; issues or concerns with the proposal; and suggestions or perceived requirements for the way forward.