Scottish procurement policy handbook

11. Equality

The public sector equality duty of the Equality Act 2010 applies to all functions of public bodies, including procurement. Public bodies must exercise their functions with due regard to all of the following:

• the need to eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct
• the need to advance equality of opportunity between people who share a relevant protected characteristic and those who do not
• the need to foster good relations between people who share a protected characteristic and those who do not.

“Due regard” means that when making decisions about procurement, a body subject to the duty must consciously consider the needs of the duty (eliminate discrimination, advance equality of opportunity, foster good relations). How much regard is due will depend on the individual circumstances and the relevance of the duty to the procurement in question.

“Protected characteristics” are defined in the Equality Act 2010 as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Specific duties also apply when a public body awards a contract which is equal to or above the procurement thresholds. These are to actively consider how the equality duty can be more effectively fulfilled through:

• award criteria
• performance conditions.

The Fairer Scotland Duty of the Equality Act 2010 places a requirement on public bodies to have due regard to how they can reduce inequalities of outcome caused by socio-economic disadvantage, when making strategic decisions (including procurement).

Statutory guidance is available to help public bodies perform their Fairer Scotland Duty across all their functions.

Compliance with equality duties aligns with the provisions in the 2014 Act that are used to advance equality through procurement: the sustainable procurement duty; use of community benefit requirements; steps to engage with supported businesses and fair work considerations.