Fair Work Action Plan 2022 and Anti-Racist Employment Strategy 2022: data protection impact assessment

3. Relevant guidance, legislation and policy

3.1 Relevant guidance and legislation

The DPIA assesses the impacts of each of the actions within the RAP and ARES and will help to demonstrate the Scottish Government's compliance with specific legislation to which it has a legal duty to consider in the delivery of its policies, programmes and projects. This includes the General Data Protection Regulation (GDPR).

3.1.1 General Data Protection Regulation

The GDPR, which came into effect on 25 May 2018, covers the general data protection regulations as set out in the Data Protection Act 2018. The GDPR requires DPIAs to be carried out when using new technologies, and when the processing is likely to result in a high risk to the rights and freedoms of individuals.

Guidance from the Information Commissioner (Ref 3) also states that it is good practice to do a DPIA for any other major project which requires the processing of personal data and where there are plans to match data or combine datasets from different sources, or process data that might endanger the individual's physical health or safety in the event of a security breach.

'Personal data' can be defined as any information that relates to an identified or identifiable individual for example this could be a name, address and postcode, data of birth or IP address. 'Special category' data could be information relating to racial or ethnic origin, religion, trade union membership, biometric data, health and well-being and sexual orientation. 'Processing' is any operation carried out in respect of the personal data from its collection, storage, transfer, and deletion^[15]. Under Section 35 of the GDPR, DPIAs are required to be carried out when there is large scale use of sensitive (special category) data.

A DPIA can help identify and minimise the data protection risks of a project and should:

• describe the nature, scope, context and purposes of the processing;
• assess necessity, proportionality and compliance measures;
• identify and assess risks to individuals; and
• identify any additional measures to mitigate those risks.

3.1.2 Guide to the General Data Protection Regulation (GDPR): Data Protection Impact Assessments^[16]

As noted above, Article 35(1) of the GDPR states that a DPIA must be undertaken when a type of processing is likely to result in a high risk to the rights and freedoms of individuals. Examples of processing include systematic and extensive profiling with significant effects, large scale use of sensitive data and public monitoring.

Article 29 of the Data Protection Working Party^[17] provides guidance about determining whether processing is "likely to result in a high risk". They define criteria that may act as indicators of likely high-risk processing. These include:

• sensitive data or data of a highly personal nature;
• data processed on a large scale; and
• data concerning vulnerable data subject.

'Large scale' is subjective to the assessor and deciding whether processing is on a large scale should take into account:

• the number of individuals concerned;
• the volume of data; and
• the variety of data.

In addition, 'vulnerable individual' is defined within the guide as those whose circumstances may restrict their ability to freely consent or object to the processing of their personal data, or to understand its implications. It is important to note that even if an individual is not part of a group that may be automatically considered vulnerable, an imbalance of power in their relationship with the assessor can cause vulnerability for data protection purposes. For example, a group who may be considered vulnerable in this instance are employees. Article 29 explains why employees could be considered vulnerable data subjects where a power imbalance means they cannot easily consent or object to the processing of their data by an employer.

3.1.3 The Human Rights Act^[18]

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom introduced to incorporate the rights of the European Convention on Human Rights into UK law. Public authorities must respect and protect the human rights set out through the articles of the Act. Articles relevant to this Fair Work agenda include:

• Article 4: Freedom from slavery and forced labour
• Article 11: Freedom from assembly and association
• Article 14: Protection from discrimination in respect of these rights and freedoms

Human rights implications are also considered in the context of upcoming International Human Rights Covenants and Conventions, including the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of Persons with Disabilities; and the Convention on the Rights of the Child.

In assessing the impacts on human rights legislation, this report considers:

• If there is any danger of someone's rights being infringed by the actions of the Fair Work agenda
• If the actions of the Fair Work agenda will strengthen people's ability to enjoy these rights

3.2 National policy

3.2.1 Fair Work Framework^[19]

The Fair Work Convention published the Fair Work Framework in 2016. It sets out a vision that 'by 2025, people in Scotland will have a world-leading working life where fair work drives success, wellbeing and prosperity for individuals, businesses, organisations and society'.

The framework defines Fair Work through the five dimensions: effective voice, opportunity, security, fulfilment, and respect.

3.2.2 National Strategy for Economic Transformation (NSET)^[20]

The National Strategy for Economic Transformation outlines an ambition for a successful and 'fairer' economy by 2032 driven by a vision to create a wellbeing economy.

The 'fairer and more equality society' programme of action seeks to 'Reorient our economy towards wellbeing and fair work, to deliver higher rates of employment and wage growth, to significantly reduce structural poverty, particularly child poverty, and improve health, cultural and social outcomes for disadvantaged families and communities.'

3.2.3 National Performance Framework (NPF)^[21]

The National Performance Framework is Scotland's wellbeing framework setting out a vision for a more successful, sustainable, and inclusive Scotland.

The Fair Work and Business National Outcome measures progress towards Scotland's vision for 2025. Performance against this outcome is measured through indicators, including but not limited to: pay gap, employee voice, gender balance and payment of the real Living Wage.

3.2.4 Developing the Young Workforce: Scotland's Youth Employment Strategy^[22]

The Youth Employment Strategy sets out how the Scottish Government will implement recommendations from the Commission for Developing Scotland's Young Workforce with the ambition to improve youth employment levels beyond pre-2008 and prioritise equal access to work relevant educational experience for all young people, despite the barriers they may face.

3.2.5 Tackling Child Poverty Delivery Plan 2022-2026^[23]

The 'Best Start, Bright Futures' delivery plan sets out a vision for tackling child poverty in Scotland, following the foundations of the 'Every Child, Every Chance' publication in 2018.

To successfully tackle child poverty, the plan will support families with children through people-centred services to access financial, emotional, and practical assistance regardless of gender, race or status.

3.2.6 Covid Recovery Strategy^[24]

In response to the inequality and disadvantage both exacerbated and exposed by the Covid pandemic, the Scottish Government published the Covid Recovery Strategy.

The strategy prioritises the security and resilience of communities, businesses, society, and the economy by embedding fair work, skills and employability interventions.

Actions from this outcome include gender, ethnicity and disability employment action plans, an ethnicity pay gap strategy, real Living Wage commitments and other Fair Work standards.

3.2.7 Race Equality Framework for Scotland 2016 to 2030^[25]

This framework sets out the Scottish Government's approach to addressing racism and inequality between 2016 and 2030. Through showing leadership in advancing race equality and addressing barriers faced by racialised minorities, the Scottish Government will assist racialised minorities in realising their potential.

The Framework was created to prioritise the needs and experiences of Scotland's racialised minorities. It outlines how the Scottish Government will work in partnership with government agencies and key stakeholders to address opportunities for progress through six themed Visions.

3.3 Partnerships

3.3.1 No One Left Behind^[26]

No One Left Behind is a collective approach to delivering an employability system which is flexible, people-centred, and responsive.

Progress has been made through the Disability Employment Action Plan^[27], Shared Measurement Framework^[28], the Scottish Approach to Service Design^[29] and Fair Start Scotland extension^[30].

3.3.2 Fair Start Scotland^[31]

Fair Start Scotland, a national employment support service, launched in April 2018 and has been supporting people with significant barriers towards and into sustainable work.

The service is entirely voluntary and offers personalised, one to one support, tailored to individual circumstances and has supported over 51,000 starts since launch in April 2018.

3.4 Other factors

Individuals and businesses face ever-changing burdens dependent on the cumulative impacts of socioeconomic crises. Those relevant to today's populations include Covid, EU Exit and the cost-of-living crisis.

3.4.1 Covid

Covid-19 has an impact on Scotland's health, economy and society and progress towards Scotland's National Outcomes from the NPF.^[32] Emerging and exacerbated labour market inequalities are likely to generate poverty and human right impacts relevant to the Fair Work and Business Outcome. For example, young people are increasingly faced with early unemployment, while older unemployed adults are experiencing more long-term unemployment and are less likely to participate in upskilling.

3.4.2 EU Exit

Consideration must be given to EU Exit undermining trading and collaborative relationship, which Scottish society and businesses have traditionally relied on as efforts are made to rebuild, restore, and identify new markets and potential trade relationships.

3.4.3 Cost-of-living crisis

The recent cost of living crisis, driven by a surge in inflation, has generated social, economic, and environmental vulnerabilities across Scottish households.

While all households in Scotland will be affected by the increased cost of living, Scottish Government identify that disproportionate impacts are likely across low-income households.^[33] Low income households also include overrepresentations protected characteristic groups.

Household's increased chances of suffering acutely from the current inflation crisis heightens vulnerabilities to changing legislation, in both positive and negative capacities.