This guidance is concerned with procurements where equality is considered to be a relevant and proportionate matter.
It is part of a series of guides which support the sustainable procurement duty tools to help public sector organisations embed sustainability into their procurement processes. Equality and fair work are inextricably linked and mutually reinforcing and should be considered alongside one another. Separate guidance on how to address equality matters for the workforce engaged on the contract, as part of a bidders approach to fair work practices is available, see fair work best practice guidance and toolkit.
Description of risk or opportunity
- Are there potential opportunities to prevent discrimination, harassment and victimisation, and to advance equality outcomes relevant to the procurement? (Consider users of the contract, employees of the authority, the wider community, those working on delivery of the contract and the supply chain workforce, as appropriate)
- Has an Equality Impact Assessment (EQIA) indicated that there could be a positive or negative impact on people with protected characteristics?
Concerns regarding discrimination, harassment, victimisation or other unlawful conduct as a result of people having protected characteristics. These are defined in The Equality Act 2010 as:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Particular areas of risk might include:
- recruitment, promotion and job security
- low pay, unequal pay, occupational segregation, and pay gaps (gender, disability or ethnicity pay gaps)
- health and welfare, including failure to make reasonable workplace adjustments for disabled members of the workforce
- training and development opportunities
- workforce engagement (effective voice)
- pregnancy and maternity discrimination
Has an equality impact assessment (EQIA) been done? Has this identified opportunities to promote equality in the contract, or any potential impacts on people with protected characteristics, either positive or negative? Where an EQIA has been done, it should inform the procurement process along with other relevant sources of information.
Is it proportionate to engage with appropriate experts? This could be equality and diversity staff within your organisation, networks of people with protected characteristics, or equality groups i.e. Age Scotland, Disability Equality Scotland, Stonewall Scotland, Close the Gap, Coalition for Racial Equality and Rights (CRER), and Equality and Human Rights Commission, etc. Involve appropriate experts at the earliest stages of designing and specifying the requirement (for example, not just when the tender documents are being written).
Considerations to help eliminate discrimination, advance equality and foster good relations may include:
- Could the contract be reserved so that only supported businesses can bid for it?
- Could community benefit clauses be included in the contract to promote equality and to reduce inequality by targeting recruitment and training at particular priority groups? For example, helping women, ethnic minorities and disabled people etc. enter and progress in the labour market
- Could bidders be asked to confirm that sub-contracting opportunities will be accessible to small and medium enterprises (SMEs) and third sector bodies?
- Could bidders be asked to confirm that they have investigated pay gaps in their organisation and supply chain and are taking steps to address it?
- Could bidders be asked to demonstrate how they and their supply chain will take a positive approach to equality matters for the workforce who will be engaged on the contract as part of a wider approach to Fair Work practices? For example, improving the wider diversity of their staff, such as improving the gender balance in supervisory and management roles; having part time / flexible working opportunities for all workers including those in supervisory and management roles; providing skills and training that are accessible to all workers including those from under-represented groups; seeking opportunities to increase people from under-represented groups in the workforce; genuine workforce engagement including with trade unions or other recognised employee associations etc.; having an effective complaints mechanism in place i.e. to resolve claims of discrimination, harassment and victimisation
- Would it be relevant to ask suppliers to be members of any particular equality related employer accreditation scheme?
Equality considerations are relevant to all contracts. However, contracts and industries / sectors where discrimination may be particularly embedded, or where inequality such as pay gaps or occupational segregation etc. may be prevalent might include:
- recruitment services
- facilities management and security
- uniforms or protective clothing (cultural sensitivities)
- food, catering, agriculture and fishing
- social care, occupational health services and staff welfare (any personal services)
- transportation and communication
- science, technology, engineering and mathematics (STEM)
- contracts that require a high level of contact with the public or the authority’s workforce
- contracts where supply chains extend beyond the UK
A commitment by suppliers to advance equality and to reduce inequality might include:
- publishing ethnic minority and gender pay gap information and action plan to address the gap
- publishing information on disability, mental health and wellbeing in the workplace
- undertaking an equal pay audit or review
- equality, diversity and inclusion training for all workers, with prominent focus on induction
- line manager training on recruitment and employee support, including for example pregnancy and maternity; menopause; sexual harassment; and domestic abuse, etc.
- policies and practices which are tailored to improving the recruitment, progression and on-going support for under-represented groups in the workplace like mentoring, and women returnship programmes, etc.
- use of the family friendly working strapline
- employer accreditation membership: Investors in People, Carer Positive, Be Fair Framework, Disability Confident, Age Inclusive Matrix, Working Forward, Stonewall Workplace Equality Index etc.
- Scottish Living Wage accreditation
- signing up to the Scottish Business pledge and / or Partnership for Change (50/50 by 2020)
Role of procurement
The National Outcomes and Indicators within the National Performance Framework focus our activity around ‘creating a more successful country, with opportunities for all of Scotland to flourish through increased wellbeing, and sustainable and inclusive economic growth’. Potentially relevant National Outcomes and Indicators are:
- We respect, protect and fulfill human rights and live free from discrimination
- We have thriving and innovative businesses, with quality jobs and fair work for everyone
- We tackle poverty by sharing opportunities, wealth and power more equally
- Public services treat people with dignity and respect
- Gender balance in organisations
- Quality of public services
- Income inequalities
- Trust in public organisations
- Wealth inequalities
- Employees on the living wage
- Gender Pay gap
- Employee voice
Scotland was one of the first counties in the world to sign up to the Sustainable Development Goals which have been developed to achieve a better and more sustainable future for all. They address the global challenges we face, including those related to poverty, inequality, climate, environmental degradation, prosperity, and peace and justice. The goals interconnect, and many of them align with the National Performance Framework.
The goals relevant to equality and diversity are: 5 Gender Equality and 10 Reduced Inequalities.
A focus on equality and diversity will form part of a public sector organisation’s equality strategy / policy and procurement strategy. This includes embedding equality outcomes through relevant procurement processes.
Public bodies are likely to have different equality and diversity policy objectives, for example:
- disabled people are more involved in the design, development and improvement of transport policies, services and infrastructure (Transport Scotland, 2016)
- equality is at the heart of the development and creation of a devolved social security system for Scotland and we will design this in partnership with the people of Scotland (Scottish Government, 2017)
A buyer should consider how these objectives relate to the procurement, and whether there are opportunities to promote equality, or if there could be a risk of breaching the Equality Act 2010.
Read the equality outcomes self-assessment toolkit for more information.
A buyer should think about the relevance of equality to their particular procurement process, it might help to think in terms of whether equality is the main subject matter of the contract or not:
- Primary: when a service or good is designed to meet a particular equality requirement or group, such as home care for the elderly or transport for disabled children.
- Additional: where equality is not the main subject matter of contract but is relevant to a greater or lesser degree for example because of the diverse end users of a service. A contract for providing a web-based service for example should consider how to ensure the service is fully accessible so may also specify that the service caters for people who do not speak English as a first language, or those who are visually impaired.
- Wider benefits: where equality is not the main subject matter of contract but there’s an opportunity to add value to the contract. This could be through achieving wider social aims or encouraging wider participation such as employment, fair work, fairness and social cohesion. Any wider benefits will need to be underpinned by business case and represent value for money.
The contents of this guidance is not to be construed as legal advice or a substitute for such advice, which you should obtain from your own legal advisers if required. Scottish Government is not and shall not be held responsible for anything done or not done by you as a result of this guidance.