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

3. Relevant legislation and policy

This section provides an overview of the relevant legislation and policy to the RAP and ARES. A detailed policy review is provided in Appendix C.

3.1 Relevant legislation

3.1.1 The Equality Act

The Equality Act 2010 legally protects people from discrimination both in the workplace and in wider society. It ensures that individuals with the following nine protected characteristics are not indirectly or directly discriminated against:

• Age: This refers to persons defined by either a particular age or a range of ages;
• Disability: A disabled person is someone who has a physical or mental impairment (lasting more than a year) that has a substantial adverse effect on their ability to carry out normal day-to-day activities;
• Gender Reassignment: This refers to a person who is proposing to undergo, is undergoing, or has undergone a process for the purpose of reassigning their gender identity;
• Marriage and Civil Partnership: Marriage can be between a man and a woman or between two people of the same sex. Civil partners must not be treated less favourably than married couples;
• Pregnancy and Maternity: Pregnancy is the condition of being pregnant and expecting a baby. Maternity refers to the period after the birth. In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth;
• Race: Under the Equality Act 2010 race includes colour, nationality (including citizenship) and ethnic or national origins;
• Religion or Belief: Religion means any religion and a reference to religion includes a reference to a lack of religion. Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief;
• Sex: This refers to a man or to a woman, or to a group of people of the same sex; and,
• Sexual Orientation: this means a person's sexual orientation towards persons of the same sex, persons of the other sex, or persons of either sex.

Section 149 of the Act sets out the Public Sector Equality Duty (PSED). Those subject to the PSED must, in the exercise of their functions, have due regard to the need to:

1. Eliminate discrimination, harassment, victimisation, and any other conduct that is prohibited by or under this Act;

2. Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and,

3. Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The three aims of the duty apply to all protected characteristics provided for in section 149(7). Although marriage and civil partnership is a protected characteristic under the Equality Act, it is not covered by the second and third matters of the PSED. Therefore, marriage and civil partnership is only considered in terms of discrimination, harassment and victimisation in the workplace throughout this EqIA. The Equality Act 2010 explains that having due regard to the second aim involves:

• Removing or minimising disadvantages affecting people due to their protected characteristics;
• Taking steps to meet the needs of people with certain protected characteristics where these are different from the needs of other people; and
• Encouraging people with certain protected characteristics to participate in public life or in other activities where their participation is disproportionately low.

The PSED requires public bodies to take proactive measures to address inequality and help contribute to the government's commitment to tackle disadvantage and discrimination, advance equality of opportunity and encourage good relations between all people.

Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 requires listed authorities to undertake an impact assessment to assess the impact of applying a proposed new or revised policy or practice against the three needs of the PSED.

3.1.2 The Human Rights Act^[15]

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 the Fair Work agenda include:

• Article 4: Freedom from slavery and forced labour;
• Article 11: Freedom from assembly and association; and
• 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; and
• 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^[16]

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)^[17]

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)^[18]

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^[19]

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^[20]

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^[21]

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^[22]

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^[23]

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^[24], Shared Measurement Framework^[25], the Scottish Approach to Service Design^[26] and Fair Start Scotland extension^[27].

3.3.2 Fair Start Scotland^[28]

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.^[29] 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.^[30] 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.