Public sector Equality Duty in Scotland: consultation

Context

Explaining the Public Sector Equality Duty:

The PSED is a duty on public bodies, and those carrying out public functions, which was created by section 149 of the Equality Act 2010 (the Act), and came into force in April 2011. It was developed in order to consolidate specific duties in respect of race, gender and disability that were all previously contained in separate Acts and extended it to other relevant protected characteristics. The PSED obliges public authorities, and those carrying out certain public functions, to have due regard, when exercising their functions, to the need to:

• Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;
• Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
• Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Although the subject matter of the Act is largely reserved to the UK Parliament, Scottish Ministers have the power (under section 153 of the Act) to supplement the PSED by placing specific duties on certain Scottish public authorities. Scottish Ministers used these powers to make the Scottish Specific Duties in 2012.

The SSDs are intended to provide a supporting framework to enable certain public authorities to better perform their PSED, through enhanced data collection and evaluation, and greater transparency and accountability. In this way, the specific duties help authorities to better perform their duty to have ‘due regard’ to the 3 needs of the PSED, and to mainstream equality in their everyday work.

Scope of the Review of the Operation of the PSED:

Scottish Ministers have committed to reviewing the operation of the PSED in Scotland, which in effect means reviewing:

• The effectiveness of the SSDs, for which Scottish Ministers have legislative competence; and
• The implementation environment for the PSED in Scotland, in recognition of the fact that regulations alone do not deliver equality, but that factors such as leadership and capacity are critical.

This review does not consider the scope of the general PSED as set out in section 149 of the Act or the role of the Equality and Human Rights Commission (EHRC) as the enforcement body, as these are matters reserved to the UK Parliament.

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

Regulation 3: Duty to report progress on mainstreaming the equality duty

Requires listed authorities to publish a report on the progress it has made to make the PSED integral to the exercise of its functions so as to better perform that duty. This must be published every 2 years.

Regulation 4: Duty to publish equality outcomes and report progress

Requires listed authorities to publish a set of equality outcomes, every 4 years, which it considers will enable it to better perform the equality duty. Listed authorities must take steps to involve persons with relevant protected characteristics in setting these outcomes and must report on progress to achieve outcomes every 2 years.

Regulation 5: Duty to assess and review policies and practices

Listed authorities must assess the impact of applying a proposed new or revised policy or practice against the three needs of the PSED:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.

When undertaking assessments, listed authorities must consider evidence relating to people with relevant protected characteristics, take account of the results of the assessment, and publish the assessment within a reasonable period. Listed authorities should make arrangements to review these policies and practices as necessary.

Regulation 6: Duty to gather and use employee information

Requires listed authorities to take steps to gather information on the composition of their employees in relation to their relevant protected characteristics, and the recruitment, development and retention of those employees. Listed authorities must then use this information to better perform the equality duty, and include an annual breakdown of this information in their mainstreaming report, per regulation 3.

Regulation 6A: Use of member information

From time to time, Scottish Ministers must take steps to gather information on the relevant protected characteristics of members of a listed authority, and provide information gathered by them to the listed authority in question.

Listed authorities must then use this information to better perform the equality duty, reporting on the number of men and women who have been members of the authority, and the way in which the information provided by Scottish Ministers has been used to increase diversity in relation to protected characteristics amongst the authority’s members.

Regulation 7: Duty to publish gender pay gap information

Requires listed authorities with over 20 employees to 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). This must be published every 2 years.

Regulation 8: Duty to publish statements on equal pay, etc.

Every 4 years, listed authorities with over 20 employees must publish a statement which details their policy on equal pay between its employees, and the occupational segregation between its employees, in relation to:

• men and women;
• persons who are disabled and persons who are not; and
• persons who fall into a minority racial group and persons who do not.

Regulation 9: Duty to consider award criteria and conditions in relation to public procurement

Requires listed authorities to have due regard to whether the award criteria should include considerations to enable it to better perform the equality duty in procurement processes.

Regulation 10: Duty to publish in a manner that is accessible, etc.

Requires listed authorities to ensure that information published under regulations 3, 4, 7 and 8 are done so in a way that makes them accessible to the public.

Regulation 11: Duty to consider other matters

Gives Scottish Ministers a power to specify matters which listed authorities must consider when carrying out their duties under the other regulations.

Regulation 12: Duty of the Scottish Ministers to publish proposals to enable better performance

Requires Scottish Ministers to publish proposals for activity to enable a listed authority to better perform the equality duty. These proposals must be published, and progress reported on, every 4 years.