Scottish Government

4 - CONTENT OF SPECIFIC DUTIES

Overview of Specific Duties

4.1. We have developed our proposals for the new specific duties based on the findings of the consultation that we undertook between September 2009 and January 2010. Our proposals reflect the key findings - that new specific duties should be proportionate, flexible, outcome focussed and operate within a public authority's existing systems and frameworks. The key elements of the new specific duties are:

• Publishing equality outcomes, based on evidence and involvement of equality groups and communities
• Reporting on 'mainstreaming' - action to embed equality into day to day systems and practices
• Consideration of the impact on equality of policies and practices, informed by evidence
• Gathering and publishing employment data
• A Scottish Ministers' duty to set national equality priorities and report on progress
• Publication duty - simplification of reporting using existing public performance reporting systems

4.2 We do not plan to require publication of an equality scheme, or to specify the documentation that public authorities must publish. But to aid transparency we want public authorities to say in advance where they will publish their equality outcomes and report on progress. We also do not plan to include specific duties relating to procurement given the need for a consistent procurement equality framework across GB and the decision by the UK Government not to take forward a procurement duty for English and GB public authorities.

Proposals

4.3. We want a set of specific duties which will operate within public authorities' existing systems and frameworks and deliver better outcomes for those who experience discrimination and disadvantage. This view was made strongly in the response to our earlier consultation on the scope of the new specific duties. The move to outcomes goes with the grain of public sector policy. The Scottish Government is focussed on outcomes and, through our national performance framework, we are working collaboratively with Scottish public authorities to deliver shared national outcomes.

Regulations

4.4 The specific duties are placed on Scottish public authorities via regulations. A draft of the Equality Act 2010 (Statutory Duties) (Scotland) Regulations 2011 is included within this consultation document (on pages 31-35). Regulation 1 establishes the date that the regulations will come into force and regulation 2 defines a number of the terms used in the regulations. The specific requirements of the duties are set out in regulations 3 - 8.

Regulation 3: Publication of Equality Outcomes by Listed Authorities

4.5. We consider that public authorities need to give particular focus to delivering better equality outcomes. We will therefore ask that public authorities set equality outcomes, based on evidence, and informed by the involvement of equality groups and communities. The focus on 'outcomes' rather than 'objectives' reflects our desire to see practical, measurable changes in the life chances of those who experience prejudice, discrimination and disadvantage. We recognise that outcomes take time to deliver, but believe it is important to focus on the intention of policy. We believe that public authorities should be allowed the flexibility to determine for themselves which outcomes to set and to publish their outcomes in the manner which best suits them. However, to increase transparency we will require a public authority to state where it will publish its equality outcomes in advance of publication.

4.6. We recognise the important role that equality groups and communities have to play in working with public authorities to inform their decision making. This must be more than just consultation after decisions are made. We are therefore proposing that a public authority's equality outcomes must be informed by the involvement of equality groups and communities. We will not require outcomes covering all characteristics, although public authorities, when determining their outcomes, will need to consider evidence across all characteristics.

4.7 Public authorities will be required to report on the progress made on their equality outcomes, and we are proposing that this should be no later than every 2 years. We are also proposing that a public authority should review its equality outcomes no later than every 4 years. This does not mean that a public authority must wait for 4 years: if an authority would prefer to work to a shorter timetable, it will be free to do so. However, it will not be allowed to go beyond 4 years before reviewing its equality outcomes.

Regulation 4: Mainstreaming Equality

4.8. Integration of the duties within public authorities' existing systems will drive the 'mainstreaming' of equality. By 'mainstreaming' equality we mean that we want public authorities to embed equality across their policies, procedures and corporate systems.

4.9 We believe that public authorities should be allowed the flexibility to determine for themselves how best to do this. But to ensure that action is taken we want public authorities to report on the progress they have made in promoting equality for those with protected characteristics within their organisation's policies, practices and corporate systems. This reporting must encompass all of the characteristics covered by the equality duty in the Equality Act 2010. It is additional to the reporting on progress on specific equality outcomes and additional to the duty to assess impact. The first report will be required no later than April 2012, with subsequent reports within each 2 year period thereafter.

4.10 We wish to allow maximum flexibility and allow authorities to take a proportionate response to this duty. We do not expect an authority to report on progress across all of its functions. Rather, we envisage that an authority may wish to report on the 'corporate' systems it has in place, on actions it has taken in key areas, and progress it is making in moving forward equality across the organisation for those persons with protected characteristics. We will consider further how best to reflect this in the drafting of the regulations.

Regulation 5: Impact Assessment

4.11. Assessing the impact that decisions about policies and practices have on equality is a key aspect of the existing duties. Under the proposed new duties this would remain. We do not, however, propose to specify how public authorities should assess impact, or to ask a public authority to publish its methodology. Rather, public authorities should have the flexibility to decide for themselves how best to approach this within their organisation. The duty will apply in relation to new policies and practices, including changes or redesign of existing policies, practices, services and provision. The requirement to consider the impact that decisions have on equality will cover all protected characteristics, and must be informed by evidence. Authorities will also be required to have regard to the outcome of assessment.

4.12 The value of impact assessment is in ensuring that equality considerations inform policy making, but to enable an authority to respond appropriately the requirement must be proportionate. We believe the focus on new policies and practices and changes or redesign of policies or practices will help public authorities to take a proportionate response to the duty. But we would welcome views on how best to ensure that authorities can respond in a proportionate manner.

4.13. It clearly makes sense that the impact on equality of policies and practices delivered in partnership between public authorities should be considered. Whilst the equality duty cannot be directly applied to such partnerships, we believe that our focus on setting equality outcomes will encourage equality to be considered at this level.

Regulation 6: Publication of Employment Information

4.14 As employers, public authorities must take action to eliminate discrimination, promote equality and foster good relations within their organisation. Reporting on headline employment data will help public authorities to do this in a straightforward and streamlined way. We propose that public authorities with at least 150 full time staff should be required to publish employment rates for disability, sex and ethnicity and their gender pay gap. In addition, public authorities with 150 or more staff should publish an equal pay statement with information on their equal pay policy and occupational segregation. Public authorities will be required to report on employment data no later than every 2 years. They will also be required to report on their equal pay statement and to publish a revised equal pay statement no later than every 4 years.

4.15 We are proposing that the 150 employee threshold should apply in relation to employment reporting for two reasons: i) smaller organisations may not have the capacity or the systems which will allow them to respond to these requirements; ii) to protect the confidentiality of sensitive personal data. We expect that organisations will not want to report on numbers less than 5 as this could identify individuals. In an organisation of 150, 5 people would be 3.3%.

4.16 We recognise that employment reporting, particularly on the gender pay gap, needs to reflect local circumstances and the different pay and grading structures which exist in different parts of the public sector and in different areas of the country. Appropriate context and explanation should be attached to employment reporting to avoid crude comparisons being made and we will work with the Equality and Human Rights Commission to develop guidance on this. Guidance will also cover methodology for gender pay gap calculation.

4.17 We are not proposing a specific duty to publish employment rates for other characteristics such as sexual orientation, religion or belief, or gender reassignment. However, the mainstreaming duty at paragraph 4.4 above requires a public authority to report on the progress it is making on promoting equality in relation to all protected characteristics within its corporate systems and practices. An authority may wish to take the opportunity provided by the mainstreaming duty to say how it intends to put in place arrangements to reflect the new characteristics in its employment practices.

Regulation 7: Duty on Scottish Ministers in Respect of National Equality Priorities

4.18. Scottish Ministers have a particular role in supporting the Scottish public sector and the specific duties place a leadership role on Scottish Ministers to publish national equality priorities. Scottish Ministers will base their priorities on evidence and will publish them by 30 June 2012, after publication of equality outcomes by public authorities in April 2012. This will allow Scottish Ministers to take an overview of what public authorities are doing already, which will reflect local and sectoral issues, before articulating national priorities.

4.19. Scottish Ministers will then report on progress made on national equality priorities by 31 December 2014. National priorities will be reviewed and published within each 4 year period from when they are first set, and further reports on progress published within 4 year periods following the first report. These dates set the Scottish Ministers' duty within the timeframe of Scottish Parliament elections, ensuring that priorities are set and reported on in the same Parliamentary term.

Regulation 8: Compliance with Publication Duty

4.20. We wish to allow public authorities to take a flexible and proportionate response to the duties, and are therefore limiting the degree of regulation relating to process. In relation to reporting we wish to go with the grain of what public authorities already do. Many Scottish public authorities produce annual reports or report through other means. We will require reporting through these existing public performance reporting systems where they exist. Where such mechanisms do not exist a public authority will be free to determine how best to report. To aid transparency, a public authority will be required to state in advance where it will report and the timeframe.

4.21. We are proposing that reporting should take place no later than every 2 years. That does not mean that public authorities must wait for 2 years before they report. If an authority wishes to report annually it may do so, but it will not be permitted to go more than 2 years without reporting. We are also proposing a simplification of the reporting requirements of the current duties, so that reporting relates only to progress on mainstreaming, progress towards equality outcomes and headline employment data.

4.22. Linking reporting on equality to public performance reporting mechanisms will establish a link to audit and scrutiny as it is the public performance reporting mechanisms which provide the material routinely considered by audit, scrutiny and regulatory bodies. In line with a risk-based and proportionate approach to external scrutiny we do not intend to place additional duties on scrutiny bodies in relation to equality.

4.23 To ensure transparency in relation to equality outcomes we intend to require that an authority states in advance where it will publish its equality outcomes.

Draft Regulations

4.24 We consider that the enclosed draft regulations capture our intention that the new specific duties should be flexible, proportionate, outcome focussed and designed to operate within a public authority's existing systems.

Timescales and Transitions

4.25 The move from established duties with particular sets of requirements to a new single duty covering more characteristics but with less emphasis on process, will take time. Although the new single equality duty in the Equality Act 2010 is expected to come into force in April 2011, the majority of the requirements of the proposed new specific duties will have a later start date. This is because public authorities will need time to adjust to the new duties and gather the evidence necessary to respond effectively. The bulk of the new requirements will start from April 2012. The duty to assess the impact on equality of new policies and practices, informed by evidence, will start from April 2011.

4.26. A key challenge in making the transition from duties which cover race, disability and gender to a new duty covering 8 protected characteristics is the availability of data. Even for the existing duties, research and data are often incomplete or inconsistent and issues around definitions remain. With new characteristics such as sexual orientation, religion and belief and gender identity these research and data issues are even more significant. It will take time to build the necessary evidence base, data sets, and measurement frameworks. The Scottish Government will work with the Equality and Human Rights Commission and with COSLA to address this aspect of the transition to the new duties, building on the EHRC's Equality Measurement Framework.

Summary of proposed specific duties

Draft - 8 September 2010
Draft Regulations for Consultation

Draft Regulations laid before the Scottish Parliament under section 210 of the Equality Act 2010, for approval by resolution of the Scottish Parliament.

SCOTTISH STATUTORY INSTRUMENTS

2011 No.

EQUALITY

The Equality Act 2010 (Statutory Duties) (Scotland) Regulations 2011

Made -- -- 2010

Coming into force in accordance with regulation 1

The Scottish Ministers make the following Regulations in exercise of powers conferred by section 153(3), section 155(1)(c) and section 207 of the Equality Act 2010( ²) and all other powers enabling them to do so.

In accordance with section 153(4) of that Act the Scottish Ministers have consulted the Commission for Equality and Human Rights.

In accordance with section 210 (2) of that Act, 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 (Statutory Duties) (Scotland) Regulations 2011 and shall come into force on the day after the day on which they are made.

Interpretation

2. In these Regulations-

"equality outcome" means a result intended to be achieved in order to further one or more of the aims mentioned in paragraphs (a) to (c) of the duty under section 149(1) of the Equality Act 2010 in relation to equality, as a consequence of action taken by a listed authority;

"listed authority" means a public authority listed in the Schedule to these Regulations, which names those bodies listed in Part 3 of Schedule 19 to the Equality Act 2010 which are to be made subject to the specific duties;

"relevant protected characteristics" has the meaning set out in section 149(7) of the Equality Act 2010;

"section 149(1) duty" means the duty under section 149(1) of the Equality Act 2010.

^{(2) 2010 c.15.}

Publication of equality outcomes by listed authorities

3. -(1) Each listed authority must prepare and publish equality outcomes, which must be informed by how those outcomes will assist the authority to fulfil the section 149(1) duty.

(2) In meeting the requirements of paragraph (1) each listed authority must-

(a) take reasonable steps to involve equality groups and communities in the process; and

(b) consider relevant evidence relating to the needs of equality groups and communities and take reasonable steps to involve them in the process of gathering the evidence.

(3) To satisfy the publication requirement in paragraph (1) listed authorities must comply with regulation 8.

(4) A listed authority must publish its equality outcomes not later than 2nd April 2012.

(5) Within each period of four years, beginning with the date of publication of its equality outcomes the listed authority must-

(a) review progress towards achieving those outcomes;

(b) publish equality outcomes that comply with the criteria in paragraph (1).

(6) Each listed authority must publish a report on progress in respect of its equality outcomes-

(a) not later than 2nd April 2014; and

(b) subsequently at intervals of not more than two years beginning with the date of publication of the last report.

Mainstreaming equality

4. -(1) Each listed authority must report on the action it has taken and the progress it has made to ensure that, in carrying out its functions, the needs of persons with a relevant protected characteristic are being taken into account-

(a) not later than 2nd April 2012; and

(b) subsequently, at intervals of not more than two years, beginning with the date of publication of the last report.

Impact assessment

5. -(1) Each listed authority must-

(a) assess the impact of its proposed policies and practices, including changes and revisions of its existing policies and practices, on those with relevant protected characteristics and on its ability to fulfil the section 149(1) duty; and

(b) consider relevant evidence relating to the needs of equality groups and communities in relation to such assessments of impact; and

(c) have due regard to the results of such assessments of impact.

Publication of employment information

6. -(1) Where the number of its full time employees is at least 150 on 2nd March 2012, a listed authority must-

(a) not later than 2nd April 2012 and subsequently at intervals of not more than two years beginning with the date of publication of the last set of information publish employment information on-

(i) the percentage of its workforce comprised of-

(aa) ethnic minority groups;

(bb) disabled people;

(cc) women; and

(dd) men; and

(ii) the gender pay gap, which for the purposes of this provision means the percentage difference between men's average hourly pay (excluding overtime) and women's average hourly pay (excluding overtime); and

(b) not later than 2nd April 2012 publish an equal pay statement specifying-

(i) the authority's policy on equal pay between women and men; and

(ii) occupational segregation within its workforce, being the concentration of women and men in particular grades and in particular occupations.

(2) To satisfy the publication requirement in paragraph (1) listed authorities must comply with regulation 8.

(3) A listed authority that has published an equal pay statement must review that statement and publish a report on it no later than the end of the period of four years beginning with the date of publication of its first equal pay statement and subsequently at intervals of not more than four years, beginning with the date of publication of the last revision of its equal pay statement.

Duty on Scottish Ministers in respect of national equality priorities

7. -(1) Scottish Ministers must set national equality priorities and publish them-

(a) not later than 30th June 2012;

(b) subsequently, at intervals of not more than four years, beginning with the date of publication of the last set of priorities.

(2) Scottish Ministers must report on progress made towards those priorities-

(a) not later than 31st December 2014; and

(b) subsequently, at intervals of not more than four years beginning with the date of publication of the last report.

Compliance with publication duty

8. -(1) Subject to paragraph (4), a listed authority may comply with its duty to publish its equality outcomes by any means considered appropriate by the authority.

(2) At least three months prior to publication, a listed authority must state where it will publish its equality outcomes.

(3) At least three months prior to reporting in terms of regulation 3, 4 and 6, a listed authority must state where it will report and the timescale which applies.

(4) A listed authority must publish a report by employing an existing means of public performance reporting if there is an existing means.

A member of the Scottish Executive

St Andrew's House,
Edinburgh

_____ 2010

SCHEDULE

Regulation 2

List of Scottish Public Authorities to be made subject to the specific duties

A Chief Constable of a police force maintained under section 1 of the Police (Scotland) Act 1967

A chief officer of a Community Justice Authority

A Chief Officer of a relevant authority appointed under section 7 of the Fire (Scotland) Act 2005

A Community Justice Authority established under the Management of Offenders (Scotland) Act 2005

A council constituted under section 2 of the Local Government etc (Scotland) Act 1994

A Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978

A joint board within the meaning of section 235(1) of the Local Government (Scotland) Act 1973

A joint fire and rescue board constituted by a scheme under section 2(1) of the Fire (Scotland) Act 2005

A licensing board constituted under section 5 of the Licensing (Scotland) Act 2005

A National Park authority established under section 6 of the National Parks (Scotland) Act 2000

A Passenger Transport Executive within the meaning of Part II of the Transport Act 1968

A police authority established under section 2 of the Police (Scotland) Act 1967

A Regional Transport Partnership created by an order under section 1(1) of the Transport (Scotland) Act 2005

A Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978

An education authority in Scotland (within the meaning of section 135(1) of the Education (Scotland) Act 1980

Audit Scotland

Bòrd na Gàidhlig

Creative Scotland

Healthcare Improvement Scotland ( HIS)

Learning and Teaching Scotland

Scottish Enterprise and Highlands and Islands Enterprise

Scottish Ministers

Scottish Natural Heritage

Scottish Sports Council

Scottish Water

Skills Development Scotland

Social Care and Social Work Improvement Scotland ( SCSWIS)

The Accounts Commission for Scotland

The board of management of a college of further education (within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992)

In the case of such a college of further education not under the management of a board of management, the board of governors of the college or any person responsible for the management of the college, whether or not formally constituted as a governing body or board of governors.

The Board of Trustees for the National Galleries of Scotland

The Board of Trustees of the National Museums of Scotland

The Commissioner for Children and Young People in Scotland

The Common Services Agency for the NHS in Scotland

The governing body of an institution within the higher education sector (within the meaning of Part 2 of the Further and Higher Education (Scotland) Act 1992)

The Keeper of the Registers of Scotland

The Keeper of the Records of Scotland

The Law Society of Scotland,

The managers of a grant-aided school (within the meaning of that section)

The Mental Welfare Commission for Scotland

The Registrar General of Births, Deaths and Marriages

The Scottish Court Service

The Scottish Further and Higher Education Funding Council

The Scottish Legal Aid Board

The Scottish Qualifications Authority

The Scottish Social Services Council

The Trustees of the National Library of Scotland

VisitScotland

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations impose specific duties on the Scottish public bodies and authorities listed in the Schedule, which derive from the list in Part 3 to Schedule 19 of the Equality Act 2010. They are made under section 153(3),155(1)(c) and 207 of that Act. The purpose of the specific duties is to ensure better performance by listed authorities of their general duty under sections 149 and 150 of that Act to have regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act, to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it and to foster good relations.

Regulation 3 requires listed authorities to prepare and publish equality outcomes by 2nd April 2012, to review them within the four year period after the initial publication date and to report on progress made according to a set timescale.

Regulation 4 requires listed authorities to report on a two yearly cycle on progress made in ensuring that the needs of persons with a relevant protected characteristic are being taken into account.

Regulation 5 requires listed authorities to assess the impact of their proposed policies and practices on those with relevant protected characteristics, to consider relevant evidence relating to the needs of equality groups and communities and to have due regard to the results of such impact assessments.

Regulation 6 requires listed authorities, where there are more than 150 employees, to report and publish specified employment data and an equal pay statement, which has to be reviewed within every four year period thereafter.

Regulation 7 imposes a duty on Scottish Ministers, to set and publish national equality priorities and to report on progress and review them according to a specified timetable.

Regulation 8 outlines what listed authorities must do to comply with the publication duty.

The Schedule lists the Scottish Public Authorities to be made subject to the specific duties.