‘We have made it clear that fairness, dignity, equality and human rights are key principles that have to underpin our response at all stages. The harms that are caused by the pandemic are, to a greater or lesser extent, being felt by everybody, but they are not being felt equally, and how we respond has to take account of that inequality.’
The Scottish Government has published its Framework for Decision-Making, which was supplemented with further information in early May. The Framework outlines the approach and principles that will guide the Scottish Government as it makes decisions about transitioning out of the current lockdown arrangements.
The principles for decision making include ‘lawful,’ ‘evidence-based,’ and ‘fair and ethical.’ ‘Fair and ethical’ is described as meaning to ‘uphold the principles of human dignity, autonomy, respect and equality.’
The framework further recognises that:
- harms caused by coronavirus do not impact everyone equally
- the response to the pandemic must recognise these unequal impacts
- the Scottish Government must seek to advance equality and protect human rights in everything it does
- options for action must be assessed to see whether they promote equality, and
- in rebuilding Scotland’s economy, we must seek to overcome inequality and advance human wellbeing.
The public sector equality duty (PSED) requires and enables you to make decisions in a fair, transparent and accountable way, considering the needs and rights of different members of our communities.
Compliance with the PSED will go a long way towards living up to these principles and observations in practice. However, you should not see engagement with the PSED as an additional burden on top of your day to day work. Understanding how your work could and does impact on different groups of people is not a separate or additional bit of work. It is your work. When done well, PSED compliance will help you to make fairer and more inclusive decisions – which, ultimately, results in better decisions.
The PSED (referred to in this guidance as the general equality duty) requires you, when you are carrying out your public functions, to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations.
It applies to any activity of your organisation. It should be understood broadly to embrace the full range of your policies, provisions, criteria, functions, practices and activities, including the delivery of services – essentially everything you do.
Listed authorities in Scotland must assess the equality impact of proposed and revised policies and practices. The phrase ‘policies and practices’ covers all the proposed or current activities which you carry out. Doing so is a legal requirement and helps you to meet the general equality duty.
Assessing impact is an integral part of everything you do. It must happen before you make and implement decisions because it must inform your decision-making. It cannot be retrospective or undertaken near the end of the process.
This guide outlines the steps that should be taken to comply fully with the duty to assess impact and have due regard to the needs in the general equality duty.
At the earliest stage of the development of a proposed policy or the revision of an existing policy you should:
- Identify if, and how, the duty applies
- Collect equality evidence
- Assess the potential impact by considering whether the equality evidence indicates potential differential impact on each protected characteristic group or provides an opportunity to improve equality in an area, by asking:
- Does the proposed policy eliminate discrimination?
- Does the proposed policy contribute to advancing equality of opportunity?
- Does the proposed policy affect good relations?
- Take account of the results of the assessment in developing the proposal
- Ensure decision makers have due regard to the results of the assessment when making the final decision about the policy and its implementation
- Document decisions and how due regard formed part of that decision
- Publish results of the assessment
- Monitor the actual impact of the policy
General equality duty
The broad aim of the general equality duty is to integrate consideration of the advancement of equality and non-discrimination into the day-to-day business of all bodies subject to the duty.
Its roots go back to 1999 and the Independent Inquiry into the murder of the black teenager Stephen Lawrence and findings of institutional racism in the Metropolitan Police.
The general equality duty is intended to accelerate progress towards equality by placing a responsibility on bodies subject to the duty to consider how they can work to tackle systemic discrimination and disadvantage affecting people with particular protected characteristics.
The general equality duty aims to shift the responsibility from individuals to organisations. It places an obligation on bodies, when they are carrying out public functions, to have due regard to the need to:
- Eliminate unlawful discrimination, harassment and victimisation and other conduct that is prohibited by the Equality Act 2010,
- Advance equality of opportunity between people who share a relevant protected characteristic and those who don’t, and
- Foster good relations between people who share a relevant protected characteristic and those who don’t.
There are nine protected characteristics covered within the Equality Act 2010: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation, and marriage or civil partnership.
The general equality duty sets out the list of ‘relevant protected characteristics’ for the purposes of the second and third needs of the duty. This includes all the protected characteristics set out above except marriage and civil partnership.
More detailed guidance is available in our Essential Guide to the Public Sector Equality Duty: A Guide for Public Authorities in Scotland and in our short video Equality Law: What is the Public Sector Equality Duty?
Specific duty to assess proposed new or revised policies
The purpose of the specific duties in Scotland is to help you in your performance of the general equality duty.
We have published a guide with the names of all of the listed public authorities in Scotland that are subject to the specific duties.
The specific duty to assess proposed new or revised policies requires you:
- Where and to the extent necessary to fulfil the general equality duty, to assess the impact of applying a proposed new or revised policy or practice against the needs of the general equality duty.
- In making the assessment, to consider relevant evidence relating to people who share a protected characteristic (including any evidence received from these groups).
- In developing the policy or practice, to take account of the results of any assessment in respect of that policy or practice.
- To publish, within a reasonable period, the results of the assessment if it decides to apply the policy or practice.
The term ‘policy’ is used as shorthand for any activity of your organisation. It should be understood broadly to embrace the full range of your policies, provisions, criteria, functions, practices and activities, including the delivery of services – essentially everything you do.
Bodies that are only covered by the general equality duty are not required to assess the equality impact of policies or practices. However, the principles of assessing impact may help to meet the requirement to have due regard to the needs of the general equality duty and to demonstrate compliance.
More detailed guidance is available in Chapter 6 of our Technical Guidance on the Public Sector Equality Duty in Scotland (see paragraphs 6.41 – 6.6 pp 82 – 92).
Step 1: Understand the aims of the policy, and how these relate to equality
When an equality impact assessment (EIA) is required, it must be carried out before a decision is made on whether to apply the policy.
Not everything you do does require a detailed EIA. The extent to which proposed or revised policies must be assessed for equality impact depends on the relevance of the policy to particular equality groups and the potential impact of it on them.
The three needs in the general equality duty may be more relevant to some decisions than others, and they may be more relevant to some equality groups than others.
However, it is likely that everything you do in response to coronavirus will need to be assessed against each of the needs of the duty for each equality group.
Decisions made about the provision of health care for older people will be particularly relevant to the need to eliminate discrimination and advance equality of opportunity. The impact on protected groups is likely to be high and the health board will have to consider the particular impact on older women and men, LGBT people, people from ethnic minorities and disabled people.
Step 2: Collect equality evidence
There is no prescribed method for carrying out an EIA. However, the process has to be designed to generate sufficient information to allow you to consider fully the needs in the general equality duty. Decisions informed by relevant local and national information about equality are better quality decisions.
Equality evidence can include internal information, external research or national data. Where there are gaps in evidence for particular groups, nationally or locally, you should seek to consult and involve equality groups and communities to understand their experiences and needs and any disadvantages and barriers they face in their lives. Where it is not possible to gather new information in time to inform the assessment, you should consider including such actions in your plans to monitor and review the impact of your policy. A lack of evidence should never be used as a reason for inaction.
Relevance and proportionality are key and the extent of evidence gathering, involvement and consultation should be proportionate to the size and resources in your organisation and the significance of the issue.
Step 3: Assessing impact
Once relevant evidence has been collected it needs to be applied to the policy as it is being developed or reviewed. A judgement needs to be made at each stage of the development process as to what the likely effect will be and whether changes are needed.
You must assess the impact of your proposals against the needs of the general duty for each relevant equality group.
In considering whether your proposal eliminates discrimination you should consider whether there is evidence to indicate that your proposal:
- May result in less favourable treatment for particular groups,
- May give rise to indirect discrimination, harassment or victimisation
- May lead to discrimination arising from disability
- Builds in reasonable adjustments where these may be needed.
In considering how your proposal contributes to advancing equality of opportunity you should consider whether it will help you to:
- Remove or minimise disadvantage
- Meet the needs of different groups
- Encourage increased participation of particular groups
- Take account of disabled people’s impairments.
In considering how your proposal will affect good relations, you should consider whether it will help you to:
- Tackle prejudice and
- Promote understanding.
It is almost never sufficient to state simply that a proposal will universally benefit everyone, and therefore people with protected characteristics will automatically benefit. Specific steps will sometimes be required to address existing disadvantage, meet different needs or accommodate difference and diversity.
When developing a policy to respond to increases in gender-based violence during the pandemic, you will need to assess the potential impact of your proposals on women from ethnic minority communities, as well as LGBT and disabled women and children. An effective impact assessment will help you to be aware of any needs of particular groups and the likely wider effects of implementing your proposed policy.
Step 4: Take into account the results of the assessment
Having considered potential impact, you should be in a position to make an informed judgement on what should be done to develop your policy further.
There may be no major change required if the assessment has not identified any potential for discrimination or adverse impact, and all opportunities to advance equality and foster good relations have been taken.
However, your proposal may need to be adjusted to remove barriers or disadvantages for particular equality groups, to better advance equality or to foster good relations. It may be possible to remove or change a particular aspect of your proposed policy or to introduce additional measures to reduce or mitigate any risk of potential negative impact.
As part of the EIA of your proposed response to the increase in domestic abuse during the pandemic, you identify that women and children with learning disabilities could be disproportionately affected by Covid-19 as respiratory infections are the most common cause of death. They also require information about domestic abuse and specialist support services to be available in Easy Read. You decide to publish all information about and related to the implementation of your policy in Easy Read, and to promote it through organisations providing services for people with learning disabilities. You also decide to provide guidance about the public health protection measures that must be taken when supporting women and children with learning disabilities who have experienced domestic abuse. You set up a system to monitor the impact of your policy on women and children with learning disabilities experiencing domestic abuse and encourage other bodies that you work with to do the same.
You may decide to adopt or continue with your policy, despite the potential for adverse impact. As part of the EIA you should clearly set out the justifications for doing this and how you believe that this decision is compatible with your obligations under the duty.
Finally, if there are adverse effects that are not justified and cannot be mitigated, you may consider stopping developing your proposals any further. If your proposals or revisions might lead to unlawful discrimination, they should be removed or changed.
Step 5: Decision-makers have due regard to equality
The EIA must not only shape your policy but must be considered fully by the decision-maker as they make a final decision on adopting the policy. If you are making a decision about whether to approve or implement a proposed new or revised policy, this will help you have due regard to equality when making your decision.
Decision-makers have a scrutiny role in determining whether the EIA has been robust enough, and gives them sufficient information. You need to ensure you are satisfied that you:
- Understand the relevance of the needs in the equality duty to the decisions you are making
- Have sufficient information on the potential impact of the decision on people with relevant protected characteristics. If not you will need to decide if further research or consultation is necessary.
- Have considered whether action can be taken to mitigate any identified potential adverse impact of the proposed policy.
- Have considered whether action can be taken to enable the proposed policy to advance equality of opportunity.
A local authority decided to restrict adult care services to people with critical needs. When this was challenged, the Court found that there was no evidence that the duty and its implications had been drawn to the attention of the councillors when they were making decisions. The Court said councillors should have been informed that disabled people would be affected and should have been told about the particular obligations which the Equality Act 2010 imposed on them.
Step 6: Document decisions
The courts have made it clear that public authorities are responsible for collecting evidence to demonstrate they have met the general equality duty. If challenged, it will be difficult for you to persuade a court that you have complied with the general equality duty in the absence of records.
The courts have also made it clear that it is good practice to keep records showing how you have given due regard to the needs of the general equality duty. It is particularly important to keep records showing your reasoning where decisions to take no action to further the needs in the duty have been made despite equality being highly relevant to the decision in question.
In deciding what records to keep and what information to publish, you should also take into account:
- That transparency about decision-making should help focus the minds of those making decisions on ensuring that they can show that they took all relevant factors into consideration, and
- Whether publishing information may help deliver the needs of the duty.
Step 7: Publish results of assessment
You are required to publish the results of your EIA if the proposed policy is implemented. The results must be published ‘within a reasonable period’ of the decision to apply the policy.
Publishing the results of assessment will increase transparency and accountability and we recommend that you publish the results of your EIA as soon as possible after the decision to implement your policy is taken.
The results of your EIA should include both the consideration of relevant equality evidence and any changes that were made as a consequence of the considerations.
Step 8: Monitoring actual impact
The actual impact of your policy will only be known once it has been introduced and implemented. Therefore, systems to enable monitoring and review of the actual impact of your policy form an important part of EIA processes and should be clearly set out and understood by everyone involved.
The general equality duty is still applicable to the ongoing operation of your policies, even where they have been subject to an EIA. You need to be able to satisfy yourself on an ongoing basis that you are continuing to meet each of the needs of the general equality duty.
More detailed guidance on each of these steps is available in our non-statutory guidance on Assessing Impact and the Public Sector Equality Duty.
Last updated: 29 Jun 2020