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Polly Williams [email protected] Contact The Equality Act 2010 replaces previous anti-discrimination law, consolidating it into a single act. The Act introduced new measures that have direct implications for colleges and higher education institutions (HEIs). The public sector equality duty (PSED) came into force on 5 April 2011, replacing the previous separate equality duties for race, disability and gender. The PSED consists of a general duty supported by specific duties. In Scotland these were commenced on 27 May 2012. Scottish colleges and HEIs, and the Scottish Funding Council (SFC), are covered by the general duty and the specific duties. This briefing provides details of the general duty and the specific duties for Scotland, and highlights issues for institutions to consider in developing their approaches to meeting the requirements. It should be read in conjunction with Equality Challenge Unit’s (ECU) briefing Equality Act 2010: implications for colleges and HEIs (see further resources). The public sector equality duty: specific duties for Scotland Implications for colleges and HEIs Contents The public sector equality duty 2 General duty 3 Specific duties 7 Reporting on mainstreaming the general duty 8 Developing equality outcomes 12 Assessing the equality impact of policies 20 Gathering and publishing employment data 26 Publishing pay gap information 30 Considering public procurement 32 Publishing information accessibly 32 Examples of information to collect 33 Further resources 36 Publishing requirements 37

The public sector equality duty: specific duties for Scotland · The public sector equality duty (PSED) came into force on 5 April 2011, replacing the previous separate equality duties

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Page 1: The public sector equality duty: specific duties for Scotland · The public sector equality duty (PSED) came into force on 5 April 2011, replacing the previous separate equality duties

Polly Williams [email protected]

Contact

The Equality Act 2010 replaces previous anti-discrimination law, consolidating it into a single act. The Act introduced new measures that have direct implications for colleges and higher education institutions (HEIs).

The public sector equality duty (PSED) came into force on 5 April 2011, replacing the previous separate equality duties for race, disability and gender. The PSED consists of a general duty supported by specific duties. In Scotland these were commenced on 27 May 2012. Scottish colleges and HEIs, and the Scottish Funding Council (SFC), are covered by the general duty and the specific duties.

This briefing provides details of the general duty and the specific duties for Scotland, and highlights issues for institutions to consider in developing their approaches to meeting the requirements. It should be read in conjunction with Equality Challenge Unit’s (ECU) briefing Equality Act 2010: implications for colleges and HEIs (see further resources).

The public sector equality duty: specific duties for ScotlandImplications for colleges and HEIs

Contents

The public sector equality duty 2

General duty 3

Specific duties 7

Reporting on mainstreaming the general duty 8

Developing equality outcomes 12

Assessing the equality impact of policies 20

Gathering and publishing employment data 26

Publishing pay gap information 30

Considering public procurement 32

Publishing information accessibly 32

Examples of information to collect 33

Further resources 36

Publishing requirements 37

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2 The public sector equality duty: specific duties for Scotland

The public sector equality duty

The general duty consists of three main needs (set out in section 149 of the Equality Act 2010). These are underpinned by specific duties (set out in the secondary legislation that accompanies the Act). The specific duties are intended to assist public bodies to meet the general duty.

For the PSED the relevant protected characteristics are:

= age

= disability

= gender reassignment

= pregnancy and maternity

= race

= religion or belief (including lack of belief )

= sex

= sexual orientation

The PSED also applies to marriage and civil partnership, but only in respect of the requirement to have due regard to the need to eliminate unlawful discrimination in employment.

The Equality and Human Rights Commission (EHRC) Scotland is responsible for assessing compliance with, and enforcing, the general duty and specific duties. It has powers to issue compliance notices to colleges and HEIs that fail to comply and can apply to the courts for an order requiring compliance. The general duty can also be enforced by judicial review. This can be sought by the EHRC or any individual or group of people with sufficient interest.

The PSED consists of a general duty and specific duties.

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General duty

The general duty has three needs. It requires colleges and HEIs, in the exercise of their functions, to have due regard to the need to:

= eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010

= advance equality of opportunity between people from different groups, considering the need to:

– remove or minimise disadvantages suffered by people due to their protected characteristics

– meet the needs of people with protected characteristics

– encourage people with protected characteristics to participate in public life or in other activities where their participation is low

= foster good relations between people from different groups, tackling prejudice and promoting understanding between people from different groups

In order to demonstrate due regard, institutions must consider the three needs of the general duty when making decisions, for example, when:

= developing, evaluating and reviewing policies

= designing, delivering and evaluating services, including education provision

= commissioning and procuring services from others

To comply with the general duty, institutions may treat some people more favourably than others, as far as this is allowed by UK and European anti-discrimination law. The general duty also recognises that disabled people’s requirements may be different from those of non-disabled people. Colleges and HEIs are required to take account of disabled people’s impairments and must make reasonable adjustments to accommodate these.

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To reduce the likelihood of unlawful discrimination occurring against students because they or their partners are pregnant or have recently given birth, an HEI introduces a policy and corresponding procedures to support these students. While doing so, as a matter of good practice, the HEI also decides to include support for secondary carers and adopters in their policy. The policy makes clear that the institution will not accept discrimination on the grounds of pregnancy, maternity or caring responsibilities and sets out its study and leave arrangements and the support that will be provided for returning to study. It provides training for staff in teaching and pastoral roles to ensure effective implementation of the policy and procedure.

Eliminate unlawful discrimination

Advance equality of opportunity

To encourage more women into engineering to advance equality of opportunity between men and women in this field, a college reviews its marketing materials to include images of women and ensures that female staff and students are present at college open days. It develops an outreach programme for girls in local schools aimed at attracting them into engineering.

It also considers how to promote additional support that all learners may need throughout their course as part of their individual learning plans or personal learning support plans. In addition, it ensures that equality training is delivered to all students to promote the college’s stance on equality and respect for fellow students.

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An HEI has a proactive approach to encouraging disability disclosure and gathering information on staff disability to enable it to advance equality of opportunity for disabled people across its functions.

To ensure equality in its recruitment processes, potential staff are asked to declare any reasonable adjustment requirements on application forms, which are available online and in alternative formats, so adjustments can be made for the interviews.

Applicants are also invited to complete an optional equal opportunities form, which includes a question about disability. The HEI explains that this is used only to help the HEI monitor the success of different groups to ensure equality in its recruitment activities. Successful applicants are asked to complete a more detailed form once appointed, including questions relating to all the protected characteristics, for inclusion in the HEI’s central management information system.

Existing staff can visit the online staff portal at any time to update their own records and are regularly reminded to do this. A paper-based form is also available and publicised. Staff who declare a disability are invited to meet with the HEI’s disability adviser to discuss any support they may require and human resources advises relevant line managers to regularly check that their working arrangements are suitable. Staff records are also analysed annually to inform the institution’s strategic approach to disability equality.

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6 The public sector equality duty: specific duties for Scotland

A college is aware of verbal abuse, bullying and tensions occurring on site between some of its Catholic and Protestant students. To foster good relations between these groups, the college includes a statement on its stance against sectarianism within its student code of conduct which is explained at student induction, included in the student handbook and readily accessible on the college website. It also looks to other colleges and local schools for examples of effective practice and develops a campaign to promote respect for other people’s views, religions or beliefs, including posters and displays around the college and workshops run by a national anti-sectarian charity.

Fostering good relations

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Specific duties

The specific duties aim to help colleges and HEIs to better meet the general duty. They are designed to help develop evidence-based policies and practices, improve transparency and accountability, and deliver better outcomes for everyone in Scotland. It is important to note that institutions must meet both the general duty and the specific duties – it is not enough to meet the specific duties alone.

To meet the specific duties, Scottish colleges and HEIs will need to:

= report on progress on mainstreaming the general duty into all functions

= develop and publish a set of equality outcomes that cover all protected characteristics (or explain why not all protected characteristics are covered)

= assess the impact of policies and practices against the needs of the general duty

= gather and use information on employees

= publish gender pay gap information

= publish statements on equal pay for gender, race and disability

= have due regard to the general duty in specified procurement practices

= publish information in a manner that is accessible

In Scotland, the general duty is underpinned by specific duties set by the Scottish parliament. These specific duties commenced on 27 May 2012.

The specific duties can be found in full at: www.legislation.gov.uk/ssi/2012/162/contents/made

There is a timeline of publishing requirements on page 37.

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8 The public sector equality duty: specific duties for Scotland

All colleges and HEIs must:

= publish a report by 30 April 2013 – and then at intervals of not more than two years – on the progress made in making the general duty integral to the institution’s functions. This is to demonstrate how it is considering the three needs of the general duty when exercising all of its functions. This should also provide employment information as specified in regulation 6 (if not published elsewhere), including:

– an annual breakdown of any employment information gathered that has not previously been published in a report

– details of the progress that has been made in gathering and using employment information to better perform the general duty

= use existing reporting systems such as strategic plans and annual reviews to publish the report which must be accessible to the public, as far as practicable

Mainstreaming sets out to integrate consideration of equality into a college or HEI’s functions so that it is a routine part of its day-to-day workings. It means ensuring that equality sits at the heart of a college or HEI’s mission, strategy and operational delivery in order to create both a structure and a culture that embraces and advances equality and diversity.

Although there is no single way to mainstream equality, operationally mainstreaming starts with considering how to meet the three needs of the general duty for all of the relevant protected characteristics when exercising functions, including core functions and processes such as budget setting, human resource management and procuring services, and processes for discreet projects and activities. An institution-wide, strategic approach across the institution’s functions will be required. However, it will also be necessary to work with the staff and student body to create the values, behaviours and culture that will support the application of mainstreaming and ensure equality translates into the day-to-day practice of the institution.

Reporting on mainstreaming the general duty

Colleges and HEIs must report on progress made in making the general duty integral to the exercise of the institution’s functions so as to better perform the general duty (regulation 3).

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ECU recommends that colleges and HEIs take into consideration the following recommendations which have facilitated mainstreaming across institutions in Scotland:

= gain support from the highest level within the institution to create the impetus for mainstreaming and drive its implementation

= tackle mainstreaming at a strategic level, promoting the benefits of an inclusive institution and addressing functions and related policies in order to achieve consistent application at departmental levels

= use a holistic approach rather than considering aspects of an institution’s delivery in isolation

= change practice at the individual level through addressing policies and processes, and working with staff to promote positive attitudes and changes in practice

= create and utilise a robust evidence base, drawing on both internal and external research and information, to:

– reveal hidden inequalities, including unequal outcomes and areas of segregation, which can be addressed in the operation of an institution’s functions

– demonstrate that mainstreaming of equality is taking place through monitoring and review processes

= make the institution’s approach appropriate for its own context and culture

= build on any mainstreaming work undertaken under the previous equality duties for race, gender and disability

ECU (2011) Mainstreaming: equality at the heart of further and higher education. www.ecu.ac.uk/publications/mainstreaming-equality-at-the-heart-of-he

ECU (2012) Mainstreaming: equality at the heart of higher education: final report. www.ecu.ac.uk/publications/mainstreaming-equality-at-the-heart-of-higher-education-final-report

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To mainstream equality and diversity into the core function of student admissions, a college builds consideration of the needs of the general duty into the pre-planned strategic review of its admissions process. The college sets up a working group to review the admissions process and to embed equality and diversity considerations into the recommendations. The working group undertakes an impact assessment of each recommendation and considers how the needs of the general duty could be better performed in each area under consideration, such as how to further advance equality of opportunity in the development of their interview process and staff development needs.

They then develop an action plan for implementing the recommendations. A ‘mainstreaming equality action’ column is added to the action plan and equality and diversity indicators are added to this column. Responsibility for the actions is assigned to relevant staff members across the college and progress is reviewed and recorded on a monthly basis, ensuring accountability and a means to demonstrate progress.

An HEI expresses its own position on equality in its mission statements and outcomes for equality in its strategic plan. This plan drives the institution’s departmental operational plans and so the equality outcomes inform the departmental plans. These in turn shape personal work objectives for individual staff members, for which progress is reviewed in appraisal processes. This enables the institution’s equality outcomes to be connected from strategic to individual level and ensures their implementation and review at operational level.

To ensure staff and student behaviour supports delivery of this mainstreamed approach to equality, the HEI sets out expectations of staff and students through leadership, and creates the opportunity for staff to develop their understanding through a portfolio of staff development opportunities. This helps to ensure equality is not just an integral part of plans, objectives and processes but is embedded into the culture of the institution.

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Embedding equality and diversity actions into the recommendations and assessing impact throughout the process avoids duplication of work and results in greater support and engagement at all levels. The success of the model supports a business case for replication of the model in other areas. The college is now employing a similar approach in the strategic review of other core function areas.

Reporting Colleges and HEIs must report on the progress made in making the general duty integral to the exercise of its functions so as to better perform the general duty. The report should show how the institution’s functions are contributing to eliminating discrimination and other unlawful conduct, advancing equality of opportunity and fostering good relations.

Colleges and HEIs must use, as far as possible, existing reporting mechanisms, such as annual reports or reviews, to report on mainstreaming the general duty. The report must be published in a manner that is accessible to the public.

An institution’s existing reporting mechanisms include its annual review, published in January each year. As it develops its new annual review for 2012, the institution decides to include its equality outcomes and to report on its progress in mainstreaming equality within this report. It dedicates a section to equality and clearly frames its mainstreaming reporting within this to ensure it is easily accessible to the public.

The institution outlines its approach to mainstreaming equality and the different steps it has taken across its functions, both under previous duties and since the introduction of the general duty. It demonstrates progress made, including successful development of strategic planning and leadership structures on equality, inclusion of the general duty in a range of policies and procedures and specific initiatives and activities undertaken. It also sets out the areas

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12 The public sector equality duty: specific duties for Scotland

Colleges and HEIs must:

= prepare and publish a set of equality outcomes by 30 April 2013 – and then at intervals of not more than four years – to enable the college or HEI to better perform the general duty

= consider relevant evidence relating to people who share a relevant protected characteristic, and take reasonable steps to involve people with those characteristics, or who represent those with a relevant protected characteristic

= publish reasons if the equality outcomes do not cover every relevant protected characteristic

= review and publish a report on progress made towards achieving the set of equality outcomes by 30 April 2015 and subsequently at intervals of not more than two years

Developing equality outcomes

Colleges and HEIs must develop and publish a set of equality outcomes (regulation 4).

Considering relevant evidence

In developing their set of outcomes, colleges and HEIs must consider relevant evidence relating to people who share a relevant protected characteristic.

Gathering and analysing evidence from across the protected characteristics will help to determine the key equality issues for the college or HEI and help to develop outcomes that are relevant and specific to the institution and provide the basis against which to measure progress towards those outcomes.

in which it still needs to make progress and timescales for achieving this. As it is not published elsewhere, the institution presents a breakdown of its employment information and how this has been used in its mainstreaming work. It includes links to other reports and documents to allow access to further information on the work undertaken.

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Colleges and HEIs can consider existing institutional equality data such as employment monitoring information, administrative data, complaints and grievances, results of impact assessments, commissioned research and student data along with relevant national and regional evidence disaggregated by protected characteristic. Qualitative data and evidence such as that from surveys, involvement activities, internal research or feedback forms can also help inform a college or HEI’s understanding of the most significant equality issues for their institution, particularly for protected characteristics where there may be a lack of ‘hard data’ about different groups’ needs and experiences.

For further information on gathering employment data on page 26.

A further way to gather and consider relevant evidence is through involving staff and students when preparing a set of outcomes, see page 18.

Preparing and publishing equality outcomes

An equality outcome aims to achieve results to further one or more of the needs of the general duty. The previous duties required institutions to set objectives but this specific duty goes further.

‘This specific duty aims to bring practical improvements in the life chances of those who experience discrimination and disadvantage’.

EHRC Scotland (2012) Equality outcomes and the public sector equality duty: a guide for public authorities (Scotland)’

In order to achieve this, an equality outcome needs to express the result it aims to achieve, which need of the general duty it will help meet and for who, and be measurable in terms of demonstrably being achieved over time.

The Scottish government’s evidence finder tool brings together equality evidence across a wide range of policy areas including post-16 education. www.scotland.gov.uk/Topics/People/Equality/Equalities

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14 The public sector equality duty: specific duties for Scotland

To help make an outcome specific, institutions can develop outcomes that support progress on one or more of the needs of the general duty for one or more of the relevant protected characteristics and plan actions or activities for each outcome related to the policies, functions or practices within the institution.

Setting out the difference the outcome aims to achieve and how this difference will be known will help institutions make an equality outcome measurable. In some cases an outcome will lend itself to a quantitative target against which progress can be measured, such as a specific increase in the number of students with a particular characteristic. However, for some areas it may not be appropriate or possible to include a numerical target, but how progress will be measured can be expressed in a range of ways, for example through indicators of changes in staff or student behaviours.

For example, a college or HEI may develop outcomes:

= to meet all three needs of the general duty:

– greater understanding of the equality issues faced by staff and students through development of information collection mechanisms across the protected characteristics Measure: increased range of evidence obtained on gender reassignment, religion and belief and sexual orientation

– enhanced leadership on equality across the institution Measure: improved awareness of equality leadership structures demonstrated in equality survey responses

= to eliminate unlawful discrimination:

– staff better understand and apply the institution’s equality and respect policies Measure: greater understanding and confidence in applying the policies demonstrated in responses to equality survey and engagement activities

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ECU (2010) Advancing LGB equality: improving the experience of lesbian, gay and bisexual staff and students in higher education. www.ecu.ac.uk/publications/advancing-lgb-equality

ECU (2012) Student services: supporting LGB students. www.ecu.ac.uk/publications/student-services-supporting-lgb-students

– reduced unlawful discrimination against lesbian, gay and bisexual (LGB) staff and students Measure: change in levels of complaints and grievances or qualitative information gathered via engagement with LGB representative groups

= to advance equality of opportunity:

– increased retention and success of male students in relevant course/degree areas Measure: reduction in the levels of withdrawal from degrees or courses and gaps in degree or course attainment between male and female students from x to y in z years

ECU (2012) Male students: engagement with academic and pastoral support services. www.ecu.ac.uk/publications/male-students-engagement-with-academic-and-pastoral-support-services

– the institution is better able to meet the needs of disabled staff Measures: increase in disclosure rates and evidence of support provided, increase in the recruitment of underrepresented staff from a particular protected group from x to y in z years

= to foster good relations:

– improved relations between staff and students from different religious groups Measure: reduction in levels of reported bullying and hate crime and evidence of student engagement with targeted events

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16 The public sector equality duty: specific duties for Scotland

An HEI identifies advancing equality of opportunity in relation to progression of staff with certain protected characteristics as a priority for its equality outcomes. On the basis of its management information it identifies that it loses more female and disabled staff following breaks in employment. Through engagement with staff representing these groups it develops an equality outcome of improved retention and development of female and disabled staff in middle management. It sets targets to show how it will measure progress on this outcome:

= improve the retention of women following maternity leave by five per cent by 2015

= improve the return-to-work rate of disabled staff who have a long-term health condition by five per cent by 2015

The institution develops:

= a mentoring scheme for women

= a leadership development programme for disabled staff

The HEI formally reviews and reports on progress made on achieving the outcome every two years.

After considering national and institutional evidence that shows a high gender segregation in certain subjects, an HEI sets an outcome to increase the participation of women in science, engineering and technology (SET) courses and increase the progression of female students to postgraduate level. This outcome will help the HEI to advance equality of opportunity for women. The institution sets a target of increasing the number of female undergraduate students from x to y in z years and postgraduate students from x to y in z years.

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To deliver the outcome, the institution:

= includes a target for outreach activity for female students in its access outcome agreement for which activity includes working with local schools and colleges to provide events to female students to ensure they are better informed about SET career options and choices

= establishes a mentoring scheme and runs employability workshops and networking events for current female SET students

= increases the visibility of female SET academics and professionals to provide role models for female students

On the basis of national and regional data, a college is aware that different groups experience barriers and issues that mean they do not have equal outcomes in attainment. To advance equality of opportunity, the college sets an outcome of improved attainment monitoring by protected characteristic to better understand the gaps between different groups in their own college. It sets a target of increasing its monitoring activities by x amount by y year.

The college plans to:

= start by monitoring the academic performance and other progress-related data of its students from protected groups on which it already has equality information, such as female and male students, those identified as having additional support needs, those of different ethnicities and those of different ages

= develop a wider programme to analyse key performance data for students from all protected characteristic groups once they have broadened their data collection mechanisms to collect data on gender reassignment, religion and belief and sexual orientation

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18 The public sector equality duty: specific duties for Scotland

ECU recommends that senior management is involved at an early stage in the development of equality outcomes to demonstrate institutional commitment and ensure that outcomes are aligned with the college or HEI’s strategic priorities, business planning and reporting processes.

For example, look to align outcomes to:

= mission or value statements

= strategic plans

= key performance indicators

= institutional outcome agreements with the SFC

= regional outcome agreements with partner organisations

= external benchmarks (eg national student survey, Scottish census)

= sector benchmarks (eg ECU’s statistical reports)

Involving staff, students and representatives

Colleges and HEIs are required to take reasonable steps to involve people who share a relevant protected characteristic – and any people who represent the interests of those groups – when developing their set of equality outcomes. This will ensure that outcomes are meaningful and relevant to staff and students and can provide the opportunity to gather qualitative evidence to refine outcomes.

Involvement can help institutions to prioritise equality outcomes and develop actions to achieve them. Ongoing involvement can help to measure the progress and impact of the outcomes and promotes an inclusive and responsive culture more generally.

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To help maximise involvement consider a number of contextual factors, such as accessibility, location and timing, which may help to maximise involvement.

Involving external stakeholders

Involving national and regional equality groups and the local community will help colleges and HEIs to consider relevant equality issues and evidence to inform their outcomes. Colleges and HEIs should build on work undertaken to meet the previous duties around consultation and involvement. For some institutions there may be small numbers of people with a relevant protected characteristics (for example, trans students) so the institution may wish to involve a trans representative equality group or local trans groups to help identify needs and patterns of disadvantage.

ECU and the Higher Education Academy (HEA) guidance on the range of ways colleges and HEIs can engage with disabled students contains information that can be transferred to other protected characteristics.

ECU and HEA (2010) Strategic approaches to disabled student engagement. www.ecu.ac.uk/publications/strategic-approaches-to-disabled-student-engagement

ECU recommends that colleges and HEIs also involve staff and students in other processes, for example when:

= assessing the equality impacts of the college or HEI’s policies and practices

= considering and designing actions and initiatives relating to the PSED

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20 The public sector equality duty: specific duties for Scotland

Colleges and HEIs must review and publish a report on progress they have made towards achieving their outcomes by 30 April 2015 and subsequently at two-year intervals.

This can be as part of an established mechanism or report and does not have to be a new or separate report.

Reporting on progress

Assessing the equality impact of policies

Colleges and HEIs must assess the impact of any new or revised policies and practices on its ability to advance the three needs of the general duty (regulation 5).

The duty to assess the impact of policies and practices against the three needs of the general duty is ongoing.

EHRC Scotland note in their guidance for public authorities that this will involve assessing the impact of applying a proposed new or revised policy or practice against the needs of the equality duty: ensuring that the policy does not discriminate unlawfully, considering how the policy might better advance equality of opportunity, and considering whether the policy will affect good relations between different groups.

This is different to the previous requirements around impact assessment which involved assessing the impact of policies and practices on people who share protected characteristics.

Publishing reasons The Scottish government expects all public authorities to set outcomes spanning the protected characteristics. Colleges and HEIs should publish reasons if their equality outcomes do not cover all of the relevant protected characteristics. Each individual outcome need not cover all relevant protected characteristics but if a relevant protected characteristic is not covered across the set of outcomes, a college or HEI will need to publish reasons to explain why.

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Colleges and HEIs must:

= assess the impact that proposed new or revised policies and practices will have on the ability to fulfil the three needs of the general duty

= consider evidence relating to people with protected characteristics (including any evidence received from people with relevant protected characteristics)

= take account of the results of any assessment when developing the policy or practice

= if the policy or practice is applied, publish the results of any assessment in a reasonable manner and within a reasonable period

= make arrangements as appropriate to review and where necessary change or revise existing policies and practices to ensure the institution complies with the general duty

Considering whether or not to conduct an impact assessment of a policy or practice (such as an equality screening) is not in itself sufficient to assess impact.

The regulations do not prescribe what the arrangements for assessing impact should be. In conducting the assessment colleges and HEIs must consider relevant evidence, including evidence received from equality groups, any complaints or reports and then take into account the results of any assessment.

The specific duty to assess impact is intended to be carried out within a college or HEI’s existing mechanisms and frameworks of assessment. Colleges and HEIs can be flexible in their approach as different types of policies and practices may require different approaches.

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22 The public sector equality duty: specific duties for Scotland

ECU guidance on impact assessments may be useful when considering approaches to assessing impact.

ECU (2010) Equality in admissions: equality impact assessments in higher education. www.ecu.ac.uk/publications/equality-in-admissions

ECU (2010) Equality in restructuring and redundancy: equality impact assessments in higher education. www.ecu.ac.uk/publications/equality-in-restructuring-and-redundancy

The following resources may be useful:

= an example equality impact assessment form from Skills Development Scotland www.skillsdevelopmentscotland.co.uk/our-story/equality-and-diversity/my-world-of-work-equality-impact-assessment.aspx

= an equality and diversity impact assessment toolkit from the Scottish government www.scotland.gov.uk/Publications/2005/02/20687/52421

= an example equality impact assessment from Audit Scotland www.audit-scotland.gov.uk/docs/corp/2010/eqia_100806_recruitment_selection.pdf

= equality impact assessments from Health Scotland www.healthscotland.com/about/EQIA/EQIAFinalReports.aspx

Although involving people with relevant protected characteristics is not specifically required under this specific duty, colleges and HEIs may choose to involve people and groups with relevant protected characteristics to help understand the impact of any proposed or revised policies. Assessing the impact of proposed or revised policies can help to identify not only a discriminatory impact but also the positive impact of policies and practices and how the institution can better meet the three needs of the general duty.

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Where a particular policy or practice is found to have a discriminatory impact on a protected group, colleges and HEIs should consider taking action to address any issues identified, including exploring alternative policies or practices to remove or mitigate any negative impacts, or justify their actions within the constraints of the law. ECU recommends that colleges and HEIs record and justify actions and decisions taken during the assessment as evidence of having paid due regard. Justification will be needed if a legal challenge is made.

The specific duty to assess the impact of policies and practices against the three needs of the general duty applies to both new and revised policies and to existing policies. Colleges and HEIs may want to make arrangements to prioritise the review of existing policies or practices. For example, they could prioritise policies that are most likely to impact on the general duty such as budget decisions or the withdrawal of a service. EHRC Scotland advises that:

‘it is good practice to publish a timetable for review and revision work to take place.’

EHRC Scotland (2012) Assessing impact and the public sector equality duty: a guide for public authorities (Scotland)

This will aid transparency and accountability.

Policies and practices must be assessed for impact on the general duty before a decision is taken or the policy is adopted or revised. EHRC Scotland also notes in its guidance for public authorities on assessing impact that it is important to consider not only individual policies and practices and how they impact on the general duty but also the effect of several or a group of policies or practices which together may have a cumulative effect.

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A college is considering centralising several services and moving them to one site to meet budgetary requirements. The college assesses the individual impact of moving each service against the three needs of the general duty and also assesses the cumulative impact of moving all of the services.

The college finds that there is a probable impact on equality of opportunity for women – particularly around maternity and childcare provisions – and disabled staff and students due to issues around transportation, changes to hours and access to support services, such as the college nursery which staff and students on different sites will now have to travel to get to.

The college looks for ways to mitigate the impact of moving services for these protected groups which include:

= consulting with the nursery on extending opening hours to cover staff and students picking up children from other sites after work or classes

= working with local transport companies to improve links between the sites

= working with disability services, local disability organisations and the staff disability group to ensure transport needs are met as far as possible

= improving communication lines with staff and students so they are aware of upcoming changes and can make alternative arrangements for transport and childcare provision as necessary

Institutions must publish reports of assessments within a reasonable period. ECU recommends that the findings from, and actions taken as a result of, assessments are published as soon as possible. In addition, making information available during the process of the assessment will enable relevant people to effectively engage with the assessment.

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An HEI assesses the impact of its teaching and learning policy and related practices on its ability to meet the three needs of the general duty as part of a strategic review of this function. It considers evidence gathered through complaints relating to teaching practice and analyses this by protected characteristics over a five-year period. This allows it to identify whether the equality-related issues raised around teaching practices by different groups of students are being handled effectively.

The HEI finds that international students, many of whom are black and minority ethnic students, make more complaints than UK students relating to teaching and tutoring practices and they are more likely to cite an equality-related reason for their grievance than UK students. The most common complaint is the failure of a tutor or course director to take an issue they raise seriously, which many of the students feel is because they do not understand its importance in their culture.

The institution discovers that there is not sufficient follow-up activity for complaints made, particularly from international students, some of whom have made repeated complaints. The HEI consequently determines that its teaching practices are having a negative impact on its ability to advance the needs of the general duty in relation to race.

To help address this finding, the HEI discusses the issues with tutors and course directors, highlighting the types of grievances for different groups and encouraging self-reflection on how the tutors and course directors support international students. The institution also includes training for tutors and course directors on the theme of unconscious bias and inclusive teaching practice in its standard learning and teaching staff development procedure.

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A college assessed the impact of withdrawing an evening course that does not lead to a formal qualification against its ability to meet the three needs of the general duty. The college finds that withdrawal of the course will have an impact on equality of opportunity for older learners and adult returners to education in particular, as well as on the course teacher who is a retired professional.

The college explores several options with the senior management team, the course teacher and the students affected in order to mitigate the adverse impact on these groups. It agrees to allow the course teacher to use a room free of charge to teach a similar class as an external provider. The course will not be an official college course and students will pay the teacher directly, however adults already undertaking the course will be able to continue to learn in the local area, the teacher will continue in employment and the college will be able to meet its funding requirements. 

Gathering and publishing employment data

Colleges and HEIs must gather and use information on employees (regulation 6).

Each year, colleges and HEIs must:

= take steps to gather information on the number and relevant protected characteristics of its employees, including information on recruitment, development and retention

= use that information to better perform the general duty

= report on information within the mainstreaming report (which must be published not later than 30 April 2013, and then at intervals of not more than two years) including:

– an annual breakdown of information gathered not previously published in a report

– details of progress made in gathering and using information to better perform the general duty

Gathering and using employee information across all the relevant protected characteristics can also help colleges and HEIs demonstrate due regard to the three needs of the general duty.

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The Scottish government has advised that colleges and HEIs should collect, monitor and use the following information to demonstrate that they are taking steps to consider recruitment, development and retention:

= recruitment and promotion

= part-time and full-time staff

= pay and remuneration

= training and development

= return to work of women on maternity leave

= return to work of disabled employees following absences related to their disability

= appraisals

= grievances (including about harassment)

= disciplinary action (including for harassment)

= dismissals and other reasons for leaving

A list of some information that colleges and HEIs may find useful to collect and analyse can be found at the end of this briefing.

ECU recommends that information is gathered across all of the protected characteristics. Where colleges and HEIs are not already collecting information on a particular protected characteristic, or where disclosure is low, ECU recommends that institutions seek to develop a safe and supportive environment through comprehensively demonstrating a commitment to equality and providing clear reasons for collecting data and explaining how it will be used. Colleges and HEIs must not compel employees and prospective employees to disclose information and must not publish information if to do so would legally breach confidence or the Data Protection Act 1998.

Considerations

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A number of ECU’s publications explore this in further detail.

= ECU (2010) Advancing LGB equality: improving the experience of lesbian, gay and bisexual staff and students in higher education. www.ecu.ac.uk/publications/advancing-lgb-equality

= ECU (2010) Trans staff and students in higher education: revised 2010. www.ecu.ac.uk/publications/trans-staff-and-students-in-he-revised

= ECU (2009) Developing staff disclosure: a guide to collecting and using equality data. www.ecu.ac.uk/publications/developing-staff-disclosure

Colleges and HEIs will need to consider what questions they ask staff relating to their protected characteristics to get an accurate profile of their workforce.

Specific questions recommended by ECU can be found online. www.ecu.ac.uk/your-questions/how-do-we-monitor-protected-characteristics

Although gathering and using data on students is not a requirement under the specific duties, institutions will need to gather and use information on their students to demonstrate how they are meeting the general duty and other requirements of the duties, particularly setting outcomes based on evidence and assessing impact of policies and practices.

While SFC, the Universities and Colleges Admissions Service (UCAS) and the Higher Education Statistics Agency (HESA) require colleges and HEIs to collect and return different data by some protected characteristics for staff and students, running

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similar data-gathering activities for both across all protected characteristics will still be helpful. ECU is currently working with both SFC and UCAS to encourage extension of their collection fields to cover all the protected characteristics.

Colleges and HEIs may publish both quantitative and qualitative information. ECU recommends that colleges and HEIs consider the range of information they already collect and how this can be extended to all protected characteristics. This will include:

= information provided to HESA (HEIs)

= information provided to the SFC (colleges)

= staff satisfaction surveys

= human resources records

= equal opportunities monitoring forms

= evidence from involvement, engagement and consultation exercises

= information on how institutions have assessed the impact of their policies and practices on different protected characteristics

ECU recommends that colleges and HEIs use national evidence to enable comparison and provide context. It is useful to involve colleagues responsible for holding and analysing information in this process. National evidence may also help to identify long-standing inequalities which institutions may choose to explore locally. Published information will be more accessible if key trends and inequalities are pointed out or if a short narrative explaining these points accompanies the data.

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A college routinely monitored the age, race, disability and gender of its staff but not gender reassignment, pregnancy and maternity status, sexual orientation or religion and belief. The college engaged with staff to discuss how it should collect data across all the protected characteristics and to develop questions to trial before integrating these into their data collection systems.

The college produced a timeline detailing how and when it would fill in the gaps in its data, and how it would supplement this with other information such as qualitative data from staff groups. When collecting data the college provides clear reasons for the collection of data and how data will be used to help encourage disclosure.

ECU’s annual statistical reports for HEIs in the UK and colleges in Scotland highlight some of the equality issues within the sectors. A college statistical report for 2010/11 student data will be published in summer 2012. HEI reports for 2010/11 staff and student data will be published in autumn 2012.

A number of further resources may be useful to institutions:

= HESA’s online data management tool, heidi, allows users to manipulate data to create detailed reports across a range of criteria www.ecu.ac.uk/our-projects/heidi-equality

= Infact database from SFC

= ECU (2011) Effective equality surveys. www.ecu.ac.uk/publications/effective-equality-surveys

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EHRC Scotland note that:

‘both mean (average) and median calculations help to illuminate different aspects of gender pay gap information, although a much greater level of detail will be required to support any practical activity to address pay gaps.’

EHRC Scotland (2012) Employee information and the public sector equality duty: a guide for public authorities

Publishing pay gap information

Colleges and HEIs are required to publish gender pay gap information (regulation 7).

Institutions with 150 employees or more must publish information on the percentage difference between men’s and women’s average hourly pay (excluding overtime) by 30 April 2013 and every two years after that.

ECU (2010) Promoting equality in pay: a practical resource for conducting equal pay reviews in higher education. www.ecu.ac.uk/publications/promoting-equality-in-pay

Colleges and HEIs have a duty to publish statements on equal pay for gender, race and disability (regulation 8).

Colleges and HEIs with 150 employees or more must publish a statement by 30 April 2013 and subsequently at four-year intervals containing the college or HEI’s policies on equal pay and occupational segregation (the concentration of men and women in particular grades and in particular occupations).

The first statement must contain information relating to women and men.

The second (therefore no later than April 2017) and subsequent statements must contain:

= policies on equal pay between men and women as well as people who are disabled and people who are not, people of minority racial groups and people who are not

= occupational segregation between these groups

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Colleges and HEIs must, when relevant and proportionate to the subject matter of an agreement for goods, works or services, have due regard to whether the award criteria and the contract conditions should include considerations to enable it to better perform the general duty.

HEIs and colleges should ensure those responsible for procurement are supported to determine when the subject matter of a contract is of high relevance to the general duty. Procurement procedures and key documentation, such as vendor questionnaires and standard terms and conditions, should be reviewed to ensure they reflect the institution’s obligations under the Equality Act and general duty more generally.

Considering public procurement

Colleges and HEIs must give due regard to the general duty in contractual conditions and award criteria (regulation 9).

ECU’s forthcoming guidance will assist institutions to assess relevance of a contract and act proportionately during the procurement process.

The EHRC’s toolkit provides guidance on the scope of pay reviews which can be applied to occupational segregation. www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/tools-equal-pay/equal-pay-audit-toolkit

The Scottish government will periodically review whether a figure of 150 is appropriate.

The regulations do not specify how detailed occupational segregation reporting needs to be. A possible approach is to use job families or grades.

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Publishing information accessibly

Colleges and HEIs must publish the required information and reports in a manner that is accessible to the public (regulation 10).

Colleges and HEIs must use an existing means of public performance reporting as far as possible.

ECU recommends colleges and HEIs develop a communication strategy to ensure that the information is easily available to as wide an audience as possible. Although publishing an equality scheme is no longer a specific duty, institutions may consider that continuing to publish information in an equality scheme will support colleges and HEIs in meeting the accessibility requirement.

Where information highlights an equality issue, ECU recommends that colleges and HEIs provide commentary to support the public in interpreting the information. This will also provide colleges and HEIs with an opportunity to communicate to the public their intention to work proactively towards meeting the general duty.

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Examples of information to collect

The following information set is illustrative and may help colleges and HEIs consider what information to collect, analyse and publish.

Ultimately, colleges and HEIs should decide what information to publish that will demonstrate meeting the general duty.

Staff Number (and percentage) of people who share a protected characteristic:

= overall

= by department

= by grade

= by job type

= by contact type (fixed-term, permanent or open-ended)

= by full-time or part-time status

= by occupation

Members of decision making bodies/committees:

= senior management position

= member of governing bodies/boards

Recruitment by protected characteristic:

= number of applicants to positions

= number of shortlisted applicants

= number of applicants invited to interview

= number of successful applicants

Progression by protected characteristic:

= number of people going for promotion

= number of successful applicants

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Pay information by protected characteristic:

= information on pay audits

= pay gap

Workplace environment and practices:

= number of people taking flexible working

= number of people who have been pregnant in last year

= number of people who have taken up maternity, paternity or adoption leave

= number of staff returning from maternity, paternity or adoption leave

= number of staff remaining in employment 12 months after returning from maternity, paternity and adoption leave

= training opportunities

= staff satisfaction surveys

= reported incidents of hate crime

= grievances

= disciplinaries

= dismissals and other reasons for leaving

Research Excellence Framework (REF) (HEIs only):

= application and selection for submission to the REF

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Although colleges and HEIs are not required to collect and publish data on students (unlike regulations 6, 7 and 8 for staff data), colleges and HEIs will need to collect and use data on students to prepare a set of outcomes and assess the impact of policies.

The following information set is illustrative and colleges and HEIs will need to decide what information they need to collect in order to meet the general duty.

Number (and percentage) of people who share a protected characteristic:

= by full-time or part-time study

= by subject

= by undergraduate first degree

= by undergraduate other degree

= by postgraduate teaching

= by postgraduate research

Admissions:

= number of applicants

= number of applicants invited to interview

= number of successful applicants

Retention and progression

= number of withdrawals year on year

Attainment:

= percentage of students achieving each class of degree

Students

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Career opportunities:

= number of people on work placements and targeted programmes

Student experience:

= access and take-up of services (eg student support)

= results of student satisfaction surveys

= complaints

= disciplinaries

= reported incidents of hate crime

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Further resources

= ECU (2012) Equality Act 2010: implications for colleges and HEIs. www.ecu.ac.uk/publications/equality-act-2010

= Updates and guidance on the Equality Act and implications for higher education institutions and colleges. www.ecu.ac.uk/subjects/equality-act-2010

= Series of guides for public authorities in Scotland on how to meet the requirements of the Equality Act 2010. www.equalityhumanrights.com/scotland/public-sector-equality-duty

= Latest information and updates to the Equality Act 2010 from the UK government, including quick start guides. www.homeoffice.gov.uk/equalities

= Latest information and updates to the Equality Act 2010 from the Scottish government. www.scotland.gov.uk/Topics/People/Equality

= Scottish government equality evidence finder. www.scotland.gov.uk/Topics/People/Equality/Equalities/DataGrid

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Specific duties for Scotland: publishing requirements

Date Colleges and HEIs must publish:

By 30 April 2013

A report on mainstreaming the general duty (which includes employee information if not published elsewhere)

A set of equality outcomes, prepared using involvement and evidence, and reasons if the equality outcomes do not cover every protected characteristic

Gender pay gap information

A statement on equal pay and occupational segregation relating to men and women

By 30 April 2015

A report on mainstreaming the general duty (which includes employee information)

A report on progress made towards achieving the set of equality outcomes

Gender pay gap information

By 30 April 2017

A report on mainstreaming the general duty (which includes employee information)

A set of equality outcomes, prepared using involvement and evidence, and reasons if the equality outcomes do not cover every protected characteristic

A report on progress made towards achieving the previous set of equality outcomes

Gender pay gap information

A statement on equal pay and occupational segregation for gender, race and disability

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