Anti-racist employment strategy - A Fairer Scotland for All

Section 4: Fair Work Policy Context and Legislation

This strategy contributes to the Scottish Government's agenda on Fair Work as well as the wider policy landscape. As well as the many voluntary commitments we are making and showing how employers across the economy can help, there are a number of specific opportunities to address racial inequality. This will be through updating existing Fair Work First conditionality attached to government funding, through wider government policy that has a bearing on anti-racist and fair work outcomes, and through legislative measures.

Addressing racial inequality through Fair Work

The strategy sits within the broader context of our ambition to be a leading Fair Work Nation. Addressing racial inequality contributes to being a Fair Work employer and this is set out below in relation to the five dimensions of Fair Work.

Fair Work is defined in the Fair Work Convention's Framework as work that offers effective voice, fulfilment, opportunity, respect and security. Each of these dimensions are considered for their potential to address racial inequality in the workplace.

Effective Voice

The COVID-19 pandemic highlighted, and in many ways exacerbated, the inequalities which are experienced by racialised minorities.^[27] Effective voice is central to Fair Work. As a dimension of fair work it can include approaches to trade union recognition and collective bargaining; direct and indirect involvement and participation; and communication and consultation arrangements and procedures that give scope to at both an individual and collective level for views to be aired, listened to and outcomes influenced. Ensuring an effective voice for workers can help to mitigate wider societal impacts and can provide a way for employers to understand intersectional and compounding barriers.

Decision-making processes in the workplace should take account of the views of all workers. Channels for effective voice both collectively and individually, can ensure workers are able to express their concerns, raise and help resolve issues. Experiences and concerns will differ across all workers – where there is targeted support available, workers should be supported and encouraged to participate through these channels. Good employer practice would be to have a route for flagging workplace issues early, inclusively, and informally where appropriate.

There is also a statutory requirement for a formal grievance procedure, but where voice channels are effective, valued and genuine, there should be less usage of such procedures, which can be daunting for all concerned. Fostering a trauma-informed environment where workers' views are actively sought, listened to and acted upon will demonstrate an employer's commitment to providing effective voice and lead to a happier and inclusive working environment.

Fulfilment

Work that is fulfilling will impact on a worker's well-being, sense of job satisfaction and commitment to a job. This dimension would not be realised if a worker's experiences fall short of this aspect of fair work due to underemployment i.e. not being employed in jobs that maximise their skills and qualifications. This has been highlighted as an experience faced by racialised minorities^[28] and that racialised minorities feel overlooked for development opportunities.^[29] Work that is fulfilling builds on knowledge and qualifications and give workers an opportunity to use their skills effectively. Employers that apply this dimension in practice will ensure that racialised minorities are benefitting from Fair Work.

Opportunity

Fair opportunity allows people to access and progress in work and employment.^[30] Employers that address the bias and discrimination experienced by racialised minorities that are looking to enter, sustain, and progress in employment, will be embedding this dimension in practice. This could include anonymising applications. Studies have shown that job applications with a name associated with a racialised minority group are less likely to be successful at getting to the shortlist stage of recruitment.^[31] This dimension relies on the effectiveness of recruitment practices and policies. Where positive action is used, employers can consider this in the context of this dimension and build capability among their workforce to understand opportunity in terms of equity.

Respect

"Fair work is work in which people are respected and treated respectfully, whatever their role and status. Respect involves recognising others as dignified human beings and recognising their standing and personal worth." (Fair Work Framework) This dimension resonates strongly with the outcomes we want to see for racialised minorities. Microaggressions, discrimination, bias, cultural and language assumptions, and assumptions on job roles are all connected to the absence of respect for racially minoritised workers. Proactively challenging these behaviours will support this dimension of Fair Work and will impact positively on mental health and wellbeing.

Security

A Fair Work employer will advertise and have jobs that incorporate the characteristics of secure work, e.g. contracts should be fair and not one-sided; wages should be stable and predictable; and hours should be agreed and predictable and should allow people to earn a decent living. This will benefit racialised minorities who have experienced lower incomes, higher risks of poverty, and insecure work.^[32] Employers that take an intersectional approach in the jobs they advertise will have considered flexible working policies, workplace adjustments and accessibility.

Addressing racial inequality in the workplace is consistent with the Fair Work objectives for supporting employers to provide accessible, fair, flexible and inclusive workplaces. Fair Work policies and practices are critical for achieving equality, inclusion, and diversity.

We will continue to lead this agenda and through our refreshed Fair Work Action Plan; we will update Fair Work First criteria to better reflect priority action required to address labour market inequalities.

This strategy is also aligned to our continuing work to meet other equalities targets such as halving the disability employment gap and reducing the gender pay gap. This work has also been brought into the refreshed Fair Work Action Plan.

Wider policy and legislative context

The strategy supports the National Performance Framework (NPF) outcome to "Have thriving and innovative businesses, with quality jobs and fair work for everyone"^[33] and contributes to a number of policy agendas.

It supports the aims set out in the Covid Recovery Strategy to address the systemic inequalities made worse by COVID-19' and also the need to take account of the impact of COVID-19' including on racialised minority groups, women and disabled people.^[34] The Covid Recovery Strategy also highlights the worsening of poverty levels among equality groups, including racialised minorities:

"We know that many people were living in poverty before the pandemic: more than one million people were living in poverty, including around 240,000 children (two thirds of children in poverty living in a household where at least one person works), and people from Black, Asian, and Minority Ethnic backgrounds were more than twice as likely to be living in poverty than people from a White British background."

The strategy also supports wider Scottish Government work to develop and implement an equality and human rights mainstreaming strategy to be in place by the end of 2024.

It also contributes to the vision in the Race Equality Framework for Scotland 2016-2030 that states:

"Minority ethnic people have equal, fair and proportionate access to employment and representation at all levels, grades and occupation types in Scotland's workforce and experience fewer labour market, workplace and income inequalities."

This strategy recognises the link between employment, income and poverty, and that some racialised minority communities experience the highest rates of poverty in Scotland.

Work continues to support the Race Equality Framework for Scotland and its vision for employment. Work to realise this vision is detailed in the Immediate Priorities Plan which reflects work across the Scottish Government to ensure a fair and equal recovery from the COVID-19 pandemic. Recommendations provided by the Expert Reference Group on COVID-19 and ethnicity shape and inform our recovery, which also covers our ongoing anti-racist work.

We recognise that addressing systemic inequality in employment will potentially impact on racialised minority families, and in particular racialised minority women, who experience higher levels of poverty. Increasing income from employment – be that moving into employment, progressing in employment or securing employment commensurate with skills, experience and qualifications – is one of the key drivers of reducing poverty, and supports our commitment to tackle child poverty. This strategy contributes to the vision in Best Start, Bright Futures,^[35] the tackling child poverty delivery plan 2022-2026. Data shows that 38% of children in racialised minority families, one of the plan's six priority groups, are in relative poverty, significantly higher than the average 24% for all children in Scotland. The actions that employers can take in this strategy are critical to tackling poverty in racialised minority families.

This strategy is also aligned to the Scottish Government's retail strategy – Getting the Right Change,^[36] which has Fair Work at its core. Embedding Fair Work in retail, one of the largest workforces to our economy with around 10% of Scotland's total employment,^[37] will be an important contributor in addressing racial inequality in the workplace as there are more minority ethnic workers in the retail sector, one of the sectors with a great number of low-paid roles, than the national average – 5.3% of all workers compared to 4.3% nationally.

Workforce diversity is also the focus for Scotland's teaching profession. Teachers from a racialised minority background are chronically underrepresented across the profession, and particularly within promoted posts. Data related to this can be found in the Scottish Government's annual data report.^[38]

In November 2018 the Diversity in the Teaching Profession Working Group, chaired by Professor Rowena Arshad CBE, published its report entitled 'Teaching in a Diverse Scotland',^[39] with a follow up report published in March 2021.^[40] The Scottish Government fully accepted the report's recommendations and the commitment to more than doubling the number of racialised minority teachers by 2030.

The Scottish Government remains committed to addressing this important issue and work is underway, as part of the Race Equality and Anti-Racism in Education Programme (REAREP) and the Diversity in the Teaching Profession and Education Workforce subgroup, to increase diversity within the teaching profession and wider education workforce.

The Scottish Government is also working in collaboration with NHS Education Scotland and others to design and deliver the Leading to Change Programme which was launched on 3rd October 2022 to support compassionate and collaborative diverse leaders at all levels across health, social work and social care in Scotland. This work will deliver the commitments made in the upcoming Scottish Government's Improving Wellbeing and Workforce Culture Strategy.

The Scottish Government's ambition, shared with COSLA, is for a trauma-informed workforce and services across Scotland, supported by our National Trauma Training Programme. Scotland was one of the first countries in the world to publish a knowledge and skills framework for psychological trauma, developed by NHS Education for Scotland (NES). This framework sets out the knowledge and skills needed by everyone in the Scottish workforce to be able to recognise where an individual may be affected by trauma, such as experiences of racism either in or outside the workplace, and to adapt their practice accordingly in order to minimise distress and support recovery through a safe and compassionate response.

While this strategy aims to address the systemic issues that drive labour market inequality for racialised minorities, this sits within a wider societal equality issue of racism and its associated harms.

Research into recorded hate crime in Scotland shows that 64% of race aggravated hate crimes in 2019-20 had "a victim from a visible minority ethnic group".^[41] Hate crime is defined as both criminal and rooted in prejudice, which has a hugely damaging and corrosive impact on victims and communities. The Scottish Government has committed to publishing a new Hate Crime Strategy, which will set out our key priorities for tackling hatred and prejudice in Scotland. The strategy will build upon the Tacking Prejudice and Building Connected Communities Action Plan^[42] and will support the implementation of the Hate Crime and Public Order (Scotland) Act 2021.

Legislative context

Human rights are the foundation for this strategy and is consistent with the United Nation's Universal Declaration of Human Rights, which includes: the right to work, to free choice of employment, and to just and favourable conditions of work.

A new multi-treaty Human Rights Bill will be introduced in this parliamentary session. This Bill will incorporate the following four United Nations Human Rights treaties into Scots Law, as far as possible within devolved competence:

• The International Covenant on Economic, Social and Cultural Rights
• The Convention on the Elimination of All Forms of Racial Discrimination (CERD)
• The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
• The Convention on the Rights of Persons with Disabilities (CRPD)

Incorporating CERD, alongside these other human rights treaties, will strengthen legal protections for racialised minorities by making these human rights enforceable domestically.

This Bill will be a high-level framework Bill, and also aims to help embed a human rights culture across Scotland. It is envisaged that it will help to support and complement the aims of the strategy.

More specific legislative context within the public sector is the Public Sector Equality Duty (PSED). The purpose of the public sector equality duty is to ensure that public authorities and those carrying out a public function consider how they can positively contribute to a more equal society through advancing equality and good relations in their day-to-day business, to:

• Take effective action on equality
• Make the right decisions, first time around
• Develop better policies and practices, based on evidence
• Be more transparent, accessible and accountable
• Deliver improved outcomes for all

It requires equality to be considered in all the functions of public authorities, including decision-making, in the design of internal and external policies and in the delivery of services, and for these issues to be kept under review.^[43]

The Public Sector Equality Duty (or general duty) in the Equality Act 2010 came into force in 2011. It means Scottish public authorities must have 'due regard' to the need to:

• Eliminate unlawful discrimination
• Advance equality of opportunity
• Foster good relations

In 2012 Scottish Ministers used their powers to make regulations that place specific duties on Scottish public bodies to help them meet the general duty. These are also known as the Scottish Specific Duties.

The Scottish Government is currently reviewing the operation of the Public Sector Equality Duty in Scotland with a view to improve the Scottish Specific Duties.

We have consulted on proposals which include extending the existing gender pay gap duty to ethnicity and disability for public bodies, and creating a more cohesive and action-focussed regime where the public bodies are required to report on how they have implemented the duties they are subject to.

Extending the duty to report on ethnicity and disability pay gaps will further emphasise the role of data that we have highlighted in our strategy.

The PSED applies across Great Britain to public bodies listed in Schedule 19 of the Equality Act 2010, and to any other persons or organisations when they are carrying out public functions. Accordingly, the PSED can cover public bodies not listed in Schedule 19 of the Equality Act 2010 and private organisations, but only in relation to any public functions they exercise. For private and voluntary sector employers (and certain specified public sector employers) with a workforce of 250 or more employees, gender pay gap reporting is mandatory under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017. Although evidence continues to build in support of ethnicity pay gap reporting, it is currently not mandatory.

However, other legal requirements on employers include:

• Ensuring they comply with the equal pay for equal work provisions of the Equality Act 2010 i.e. they pay men and women the same for doing the same (or equivalent) jobs.
• They do not discriminate against job applicants or staff when it comes to recruitment, benefits, promotion, and other workplace matters.

Building a New Scotland: A stronger economy with independence was published in October 2022. The paper sets out the Scottish Government's proposals for the economy of an independent Scotland, including a range of significant measures aimed at establishing a new, fairer labour market model. In the absence of powers to realise this ambition, we will continue to press for the full devolution of employment powers to the Scottish Parliament and push for changes to reserved legislation to advance the Fair Work agenda in Scotland, including mandating ethnicity pay gap reporting.