Public Sector Equality Duty Implementation of Scottish Specific Duties: Views from public authorities

Appendix Two Public Sector Equality Duty - Scottish Specific Duties

The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 153(3), 155(1)(c) and (2), and 207(4) of the Equality Act 2010(a) and all other powers enabling them to do so. In accordance with section 153(4) of that Act, they have consulted the Commission for Equality and Human Rights. In accordance with section 210 of that Act(b), a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement

1. These Regulations may be cited as the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 and come into force on 27th May 2012.

Interpretation

2. In these Regulations-

"the Act" means the Equality Act 2010;

"employee" is to be construed in accordance with section 83 of the Act except that it is also to include a constable (including a chief constable) and a police cadet of a police force maintained under section 1 of the Police (Scotland) Act 1967(c); "listed authority" means a public authority listed in the Schedule to these Regulations(d); "relevant protected characteristic" is to be construed in accordance with section 149(7) of the Act; and "the equality duty" means the duty of the listed authority to have, in the exercise of its functions, due regard to the needs mentioned in section 149(1) of the Act.

Duty to report progress on mainstreaming the equality duty

3. A listed authority must publish a report on the progress it has made to make the equality duty integral to the exercise of its functions so as to better perform that duty-

(a) not later than 30th April 2013; and

(b) subsequently, at intervals of not more than 2 years, beginning with the date on which it last published a report under this regulation.

Duty to publish equality outcomes and report progress

4.-(1) A listed authority must publish a set of equality outcomes which it considers will enable it to better perform the equality duty-

(a) not later than 30th April 2013; and

(b) subsequently, at intervals of not more than 4 years, beginning with the date on which it last published a set of equality outcomes under this paragraph.

(2) In preparing a set of equality outcomes under paragraph (1), a listed authority must-

(a) take reasonable steps to involve persons who share a relevant protected characteristic and any person who appears to the authority to represent the interests of those persons; and

(b) consider relevant evidence relating to persons who share a relevant protected characteristic.

(3) If a set of equality outcomes published by a listed authority does not seek to further the needs mentioned in section 149(1) of the Act in relation to every relevant protected characteristic, the authority must publish its reasons for proceeding in this way.

(4) A listed authority must publish a report on the progress made to achieve the equality outcomes published by it under paragraph (1)-

(a) not later than 30th April 2015; and

(b) subsequently, at intervals of not more than 2 years, beginning with the date on which it last published a report under this paragraph.

(5) In this regulation, "equality outcome" means a result that the listed authority aims to achieve in order to further one or more of the needs mentioned in section 149(1) of the Act.

Duty to assess and review policies and practices

5.-(1) A listed authority must, where and to the extent necessary to fulfil the equality duty, assess the impact of applying a proposed new or revised policy or practice against the needs mentioned in section 149(1) of the Act.

(2) In making the assessment, a listed authority must consider relevant evidence relating to persons who share a relevant protected characteristic (including any received from those persons).

(3) A listed authority must, in developing a policy or practice, take account of the results of any assessment made by it under paragraph (1) in respect of that policy or practice.

(4) A listed authority must publish, within a reasonable period, the results of any assessment made by it under paragraph (1) in respect of a policy or practice that it decides to apply.

(5) A listed authority must make such arrangements as it considers appropriate to review and, where necessary, revise any policy or practice that it applies in the exercise of its functions to ensure that, in exercising those functions, it complies with the equality duty.

(6) For the purposes of this regulation, any consideration by a listed authority as to whether or not it is necessary to assess the impact of applying a proposed new or revised policy or practice under paragraph (1) is not to be treated as an assessment of its impact.

Duty to gather and use employee information

6.-(1) A listed authority must take steps to gather information on-

(a) the composition of the authority's employees (if any); and

(b) the recruitment, development and retention of persons as employees of the authority, with respect to, in each year, the number and relevant protected characteristics of such persons.

(2) The authority must use this information to better perform the equality duty.

(3) A report published by the listed authority in accordance with regulation 3 must include-

(a) an annual breakdown of information gathered by it in accordance with paragraph (1) which has not been published previously in such a report; and

(b) details of the progress that the authority has made in gathering and using that information to enable it to better perform the equality duty.

Duty to publish gender pay gap information

7.-(1) A listed authority must publish information on the percentage difference among its employees between men's average hourly pay (excluding overtime) and women's average hourly pay (excluding overtime).

(2) The information is to be published no later than 30th April in-

(a) 2013; and

(b) each second year after that.

(3) The information published must be based on the most recent data available for a date when the authority had at least 150 employees.

(4) No publication is necessary if, throughout the period since these Regulations came into force or since publication was last due, the authority did not have 150 or more employees at any point.

(5) The Scottish Ministers must review from time to time whether the figure of "150" in paragraphs (3) and (4) should be amended.

Duty to publish statements on equal pay, etc.

8.-(1) A listed authority must publish a statement containing the information specified in paragraph (2) no later than 30th April in-

(a) 2013; and

(b) each fourth year after that.

(2) The statement must specify-

(a) the authority's policy on equal pay among its employees between-

(i) men and women;

(ii) persons who are disabled and persons who are not; and

(iii) persons who fall into a minority racial group and persons who do not; and

(b) occupational segregation among its employees, being the concentration of-

(i) men and women;

(ii) persons who are disabled and persons who are not; and

(iii) persons who fall into a minority racial group and persons who do not,

in particular grades and in particular occupations.

(3) The information published must be based on the most recent data available for a date when the authority had at least 150 employees.

(4) No publication is necessary if, throughout the period since these Regulations came into force or since publication was last due, the authority did not have 150 or more employees at any point.

(5) Paragraphs (2)(a)(ii) and (iii) and (2)(b)(ii) and (iii) apply only in relation to the second and subsequent statements published by a listed authority under paragraph (1).

(6) In paragraph (2), "racial group" is to be construed in accordance with section 9 of the Act.

(7) The Scottish Ministers must review from time to time whether the matters specified in paragraph (2) and the figure of "150" in paragraphs (3) and (4) should be amended.

Duty to consider award criteria and conditions in relation to public procurement

9.-(1) Where a listed authority is a contracting authority and proposes to enter into a relevant agreement on the basis of an offer which is the most economically advantageous, it must have due regard to whether the award criteria should include considerations to enable it to better perform the equality duty.

(2) Where a listed authority is a contracting authority and proposes to stipulate conditions relating to the performance of a relevant agreement, it must have due regard to whether the conditions should include considerations to enable it to better perform the equality duty.

(3) Nothing in this regulation imposes any requirement on a listed authority where in all the circumstances such a requirement would not be related to and proportionate to the subject matter of the proposed agreement.

(4) In this regulation- "contracting authority", "framework agreement" and "public contract" have the same meaning as in the Public Contracts (Scotland) Regulations 2012(a); and "relevant agreement" means a public contract or a framework agreement that is regulated by the Public Contracts (Scotland) Regulations 2012.

Duty to publish in a manner that is accessible, etc.

10.-(1) A listed authority must comply with its duty to publish under Regulations 3, 4, 7 and 8 in a manner that makes the information published accessible to the public.

(2) A listed authority must, so far as practicable, comply with its duty to publish under

regulations 3, 4, 7 and 8 by employing an existing means of public performance reporting.

Duty to consider other matters

11. In carrying out its duties under these Regulations, a listed authority may be required to consider such matters as may be specified from time to time by the Scottish Ministers.

Duty of the Scottish Ministers to publish proposals to enable better performance

12.-(1) The Scottish Ministers must publish proposals for activity to enable a listed authority to better perform the equality duty-

(a) not later than 31st December 2013; and

(b) subsequently, at intervals of not more than 4 years, beginning with the date on which it last published proposals under this paragraph.

(2) The Scottish Ministers must publish a report on progress in relation to the activity-

(a) not later than 31st December 2015; and

(b) subsequently, at intervals of not more than 4 years, beginning with the date on which it last published a report under this paragraph.