This is to alert you to the fact that the Scottish Government has now published the Scottish “specific duty” Regulations designed to help public authorities in Scotland meet their obligations under the new general Public Sector Equality Duty to be introduced on 6th April 2011. Click here to view the Regulations.
 

New General and Specific Duties

The new general duty (contained in s149 of the Equality Act 2010) obliges public authorities to

1) have regard to the need to eliminate discrimination and other forms of prohibited conduct;

2) advance equality of opportunity;

3) ensure that they are fostering good relations across the protected characteristics.

The new duty builds on the existing three duties for race, gender and disability and extends the obligation to age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. In addition however, like the current duties, the new general duty is supplemented by specific duties and those organisations which are listed (in sch19 Pt3 Equality Act) also have to comply with the specific duties. There is very little in the “specific duty” Regulations that is different from the draft produced with the consultation document last year. 
Click here to view a summary.

The Scottish specific duties are different from those which will apply to England and also those which will apply to Wales being seen as more onerous than the English ones but less so than the Welsh ones where an obligation to produce Equality Schemes has been maintained. That is not the case with the Scottish duties and whilst less structure may lead to uncertainty for those having to put the duties into practice, it should mean less bureaucracy and a greater focus on outcomes rather than process.

The importance of Equality Impact Assessments

One thing that the Scottish Government has held on to is the duty to carry out Equality Impact Assessment (EIA). Under Regulation 5, a public authority is required to assess the impact of any new policies and practices and of any revisions to existing policies and procedures with reference to the general duty to eliminate discrimination and enhance equality of opportunity.

The requirement to consider the impact that decisions have on equality will cover all protected characteristics and must be informed by evidence. Although there is no obligation to produce outcomes in respect of each of the protected characteristics, the duty to have regard to the results of the assessments should, if done properly, have a significant bearing on the setting of outcomes. Authorities will be required to have regard to the outcome of such assessments. The requirement that the assessments are evidence based should also lead organisations to review their current monitoring processes and whether (if not when) they should extend them beyond the existing 3 protected characteristics.

The requirement to undertake EIAs may also provide organisations with an opportunity to reinforce with managers the importance of making EIAs a part of their normal working practice when devising or revising policies and procedures and thereby help support the duty to mainstream.

Guidance

The Equality and Human Rights Commission will be producing Guidance on "Equality Outcomes", "Gathering Evidence" and "Assessing Impact" along with other subjects. Unfortunately, however, we understand that these are not due to be published until April but will hopefully prove useful to those involved in setting priorities for the year ahead.  

How can we help?

Anderson Strathern undertakes a wide range of employment law and HR training for and can provide advice and training on Equality and Diversity, and on conducting Equality Impact Assessments to assist public authorities in complying with the new duty.

For further information on the issues raised in this legal update, please contact Jill Bell, Director, Anderson Strathern’s Discrimination Law Service or your usual contact within the Employment Unit.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.