Gender Representation on Public Boards (Scotland) Act 2018: statutory guidance

Achieving and maintaining the gender representation objective

7.1 Achievement of the gender representation objective is not a one-off event and for some bodies the gender balance of their board will fluctuate.

7.2 For some public boards, the gender representation objective will have been achieved prior to the provisions in the Act coming into force; others may achieve the objective in advance of 31 December 2022. It is possible that some boards will not achieve the gender representation objective until after 2022. But because membership of boards can fluctuate over time, and appointments to boards must be made on merit, it is possible that the gender representation objective, having been achieved, subsequently lapses.

Requirements

7.3 If, at the time of recruitment, the gender representation objective has been achieved, the requirements at section 3 and 4 of the Act will not apply unless the appointment will result in the lapsing of the gender representation objective. For example, if a board has 6 female board members and 3 male members and is recruiting to replace one of the female board members there would be no obligation to appoint a woman in a tie break situation (i.e. where there are at least 2 equally qualified candidates, one of whom is a woman). However, if at the time of the appointment round the board has equal numbers of female and male non-executive members and the board is recruiting to replace one of the female members, then section 3 and 4 would apply with a view to achieving the gender representation objective after the replacement had been appointed. The requirement at section 6, to take other steps towards achieving the objective, does not apply where the gender representation objective has been achieved in respect of a public board.

7.4 However, even when the gender representation objective has been achieved at the time of appointment, section 5 would continue to apply. Section 5 is the duty to encourage applications by women and this duty is not affected by whether or not the gender representation objective has been met. This section requires appointing persons and public authorities to take such steps as they consider appropriate. Some public authorities or appointing persons might consider that if the gender representation objective has been achieved they do not need to take any steps under section 5. However, in order to maintain the achievement of the objective it would be sensible to continue to take action under section 5.

Reporting

7.5 When the gender representation objective has already been achieved prior to the reporting period, reporting on progress is only required under section 5, since the relevant appointing person or public authority would have no functions under sections 3, 4 and 6. If the gender representation objective has been achieved during that reporting period through the process set out in sections 3 and 4 of the Act, then this would be required to be reported on.

7.6 An appointing person or public authority reporting only on section 5 would need to state that it was doing so because it had already met the gender representation objective.

7.7 Where an appointing person or public authority had chosen not to take steps under section 5 it would still have to report on progress in relation to its functions under that section, so it would be required to report that it had not taken any steps. This report would be subject to the same publication requirements as any other report (see paragraphs 6.14-6.18 above).

Future action

7.8 If an achieved gender representation objective subsequently lapses prior to 31 December 2022 then section 6 of the Act will apply until that date. (After that date section 6 only will no longer apply even if the gender representation objective has not been achieved).

7.9 Given that appointments to boards must be made on merit, and are made on a regular basis, achievement of the gender representation objective could lapse at a future date, or in some cases, it may still not have been achieved by

31 December 2022. In those circumstances, section 3 and 4 of the Act would again come into effect and an appointing person would, if all the conditions of sections 3 and 4 are met, be required to appoint a woman in a tie-break situation (subject to section 4(4)). Section 3 and 4 would apply in relation to an appointment round seeking to fill a vacancy created by a woman demitting office, if that departure would result in the board having less than 50% of non-executive members who are women.