Human rights in the UK: Universal Periodic Review, 2017 – Scottish Government position

7. Business and human rights

UN Guiding Principles

The Scottish Government, Scottish Human Rights Commission ( SHRC) and other partners are committed to developing a co-ordinated plan of action in Scotland to give effect to the UN Guiding Principles ( UNGPs) on Business and Human Rights, ^[46] building on the UK's Action Plan. A national baseline assessment was published in October 2016. ^[47] Further engagement activity will take place around this evidence base in 2017, from which a process to develop a national action plan will be initiated.

Scotland's Labour Market Strategy

Scotland's Economic Strategy ^[48] sets out an overarching framework to achieve a more productive, cohesive and fairer Scotland. It prioritises boosting investment and innovation, supporting inclusive growth, and maintains a focus on increasing internationalisation. Throughout the Strategy there is a clear focus on the mutually reinforcing objectives of increasing competitiveness and tackling inequality. The Scottish Government has adopted this approach not just because it ensures better social outcomes, but because there is growing international evidence that countries with more equal societies typically enjoy stronger, more sustainable growth over the long-term.

Building on the Economic Strategy , the Scottish Government's Labour Market Strategy ^[49] demonstrates how a labour market that is fair and inclusive, and that provides sustainable and well-paid jobs, is key to tackling income inequality and addressing wider issues, including health, crime, deprivation and social mobility. It sets out a vision for: 'A strong labour market that drives inclusive, sustainable economic growth characterised by growing, competitive businesses, high employment, a skilled population capable of meeting the needs of employers, and where fair work is central to improving the lives of individuals and their families.'

The Labour Market Strategy sets out the steps the Scottish Government is taking to persuade and influence businesses of the benefits of fair and inclusive work. It also demonstrates action to ensure that every person, regardless of background, has the opportunity to participate successfully in the labour market and, in turn, to ensure that Scotland's workforce has the right skills and attributes to meet the needs of the evolving labour market.

Promoting fair work and responsible business

The Fair Work Convention provides independent advice to the Scottish Government on matters relating to innovative and productive workplaces, industrial relations, fair work and the Living Wage in Scotland. The Fair Work Framework ^[50] defines fair work as work that offers effective voice, opportunity, security, fulfilment and respect; that balances the rights and responsibilities of employers and workers; and that can generate benefits for individuals, organisations and society.

Scottish Business Pledge

The Scottish Business Pledge ^[51] is a shared mission between government and business, with the goal of boosting productivity, competitiveness, fair work and employment. Businesses are not expected to adopt all nine elements straight away. However paying the Living Wage is the core requirement and they are encouraged to apply for formal accreditation from the Living Wage Foundation over time.

The Living Wage

The Scottish Government has long championed the payment of the Living Wage and the real benefits to Scotland's economy of treating people who work more fairly. It has demonstrated its commitment by becoming an Accredited Living Wage Employer, and by increasing funding for the Scottish Living Wage Accreditation Initiative to £300,000 to reach the target of 1,000 accredited Living Wage employers by Autumn 2017.

The Scottish Government is using all the powers at its disposal to promote fair pay and conditions. Of the four countries of the UK, Scotland has the highest proportion of employees - around 80% - paid the Living Wage. Furthermore, the Scottish Government is providing the resources to enable local authorities to commission care services that pay care workers the full Living Wage. This will give up to 40,000 people, mainly women, doing some of the most valuable work in Scotland, a pay rise.

Public procurement

Specific duties made by Scottish Ministers (Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012) ^[52] include an explicit procurement duty requiring contracting authorities to have due regard to whether both award criteria and contract performance conditions should include considerations to enable the better performance of the Public Sector Equality Duty ( PSED). Tools and supporting guidance have been produced to assist contracting authorities identify and address how they can optimise economic, social and environmental outcomes of procurement activity (including equality).

The Scottish public procurement regulations ^[53] contain provisions to enable the exclusion of a bidder from tendering for public contracts where it can be demonstrated it has breached social, environmental or labour laws, including child labour and human trafficking. The Regulations also permit a contract not to be awarded to a bidder where it can be shown that its bid does not comply with applicable obligations in the fields of social, environmental and labour law, and it is mandatory to reject a bid that has been established as abnormally low because it does not comply with such laws.

Furthermore, guidance has been published which included model Terms and Conditions ^[54] to allow for contract termination in the event of the contractor's failure to comply with applicable obligations in the fields of social, environmental and labour law in the performance of a contract. Statutory guidance under the Procurement Reform (Scotland) Act 2014 ^[55] was published on 5 October 2015, providing guidance to public bodies on how to address Fair Work practices, including the Living Wage, when selecting tenderers and awarding contracts. ^[56]

Blacklisting

The Public Contracts (Scotland) Regulations 2015 ^[57] (higher value OJEU (Official Journal of the European Union) threshold contracts) and the Procurement (Scotland) Regulations 2016 ^[58] (lower value contracts) require public bodies to exclude from competition any businesses which have been found to have breached the Employment Relations Act 1999 (Blacklists) Regulations 2010, or which have admitted to doing so, until they have taken appropriate remedial measures or a period of three years has elapsed - the longest period of exclusion EU law allows.

Trade Unions

The Scottish Government is strongly opposed to the UK Government's Trade Union Act 2016, which presents a direct threat to the rights of workers and to Scotland's approach to industrial relations. Particular concerns relate to the potential impact of provisions on Article 8(1)(c) of the International Covenant on Economic, Social and Cultural Rights ( ICESCR), the right of trade unions to function freely. The Scottish Government continues to make the case that this is unnecessary legislation and does not reflect the true position of trade unions in Scotland. Working Together for a Fairer Scotland; Scottish Government Response to the Working Together Review ^[59] underlines that a progressive approach to industrial relations and to trade unionism is at the heart of a fairer, more successful society.

The Scottish Government has established the Fair Work Convention, which brings together trade unions and employers across the public, private and third sectors to define fair working practices in a Framework for Scotland. The Scottish Government encourages staff to join and play an active part in an appropriate trade union. Where strikes do occur, the Scottish Government has given a guarantee that it would not employ agency staff to cover strike action.

Zero hours contracts

The Scottish Government does not directly employ people on zero hours contracts and condemns the inappropriate use of exploitative zero hours contracts. Unfair work practices like this are unacceptable and undermine ambitions to grow the economy and tackle inequalities. The Scottish Government does, however, recognise that the use of non-exploitative zero hours contracts can ensure flexible support for both businesses and individuals. Stability of employment and hours of work are important elements of fair work. Where feasible, these forms of employment, for example direct employment or fixed-term employment contracts, should be offered to workers to ensure that everyone is provided with adequate security, stability and the ability to more effectively plan for the future. The Scottish Government has taken action to discourage the inappropriate use of zero hours contracts:

• statutory guidance around addressing Fair Work practices in procurement
• Scottish Business Pledge companies do not use exploitative zero-hours contracts - the Pledge website ^[60] highlights that they would be considered exploitative if they caused hardship to individuals due to regularly changing patterns of work, denied individuals their basic employment rights, and/or deterred workers from asserting their basic employment rights

Employability and skills

The success of Scotland's Labour Market Strategy will be closely tied into educational reforms. Scotland's education system, along with the range of employability and training opportunities, must ensure that every person is equipped with the rights skill sets and attributes.

• Youth Employment Strategy - Developing the Young Workforce ^[61]
  • an integrated approach across education, training, employment and local government to reduce youth unemployment by 40% by 2021
  • the aim is for Scotland to respond with meaningful world class vocational education by broadening and improving the quality of what is on offer to young people, to produce more work-ready young people, with the skills relevant to current and emerging business skills needs
  • Scottish Ministers have committed to annual reporting on progress: reports have been published in December 2015 ^[62] and December 2016 ^[63]
• The Equalities Action Plan for Modern Apprenticeships ( MA) in Scotland ^[64]
  • the five-year plan includes specific improvement targets for MA participation by disabled people, including part-time and flexible engagement, to be achieved by 2021. Skills Development Scotland will report on these annually
  • providing young disabled people with the highest level of MA funding for their chosen MA Framework until the age of 30 ^[65]
• Scotland's Devolved Employment Services ^[66]
  • newly devolved powers on employment support will be exercised from 1 April 2017 and, following a one year transitional service, from April 2018 a new Scottish employability programme will be introduced
  • will reflect the need for effective, person-centred services and in-work support, and will include tailored and personalised provision for disabled people for whom work is a reasonable objective and others who struggle in the labour market, including women and those from minority ethnic backgrounds
  • in developing the programme, the Scottish Government consulted widely with disabled people and their representatives, service providers and funders, and will work to integrate much more effectively with other services in Scotland already supporting disabled people, such as health and social care
  • for disabled people for whom it is appropriate, the Scottish Government will expect providers of employment services to offer supported employment

Examples of specific programmes to increase employment rates, particularly for the most disadvantaged groups, include: Modern Apprenticeships; ^[67] Opportunities for All; ^[68] Activity Agreements; ^[69] Scotland's Employer Recruitment Incentive; ^[70] Open Doors Consortium - In-work support; ^[71] Community Jobs Scotland. ^[72]

The Scottish Government is working with the EHRC to tackle pregnancy and maternity discrimination. The Minister for Employability and Training is chairing a working group whose remit includes: improving employers' access to advice to ensure best practice; developing an industry-specific communications strategy around the benefits of positive pregnancy and maternity policies; and strengthening health and safety advice.

The Scottish Government will work with large employers to help women who have had career breaks back into the workplace. Equate Scotland has been awarded funding of up to £50,000 to deliver the first stage of activity to support women to return to work. This 12-month project will provide at least 40 women with support to re-enter the STEM (science, technology, engineering and maths) sector by offering one-to-one guidance, career clinics and access to webinars and three month paid placements with a STEM employer. The placements will focus on life sciences, digital skills and engineering. However, STEM is not the only sector where women experience barriers to re-entry, and the Scottish Government will look to develop returner programmes in other sectors where a need is identified. These projects will help women update skills and knowledge and smooth the transition back into the workplace for both women and employers.