The UK Equality Act 2010 contains a number of duties applicable to the Scottish Government and most other public bodies: The Equality Act (Public sector equality duty (PSED) also called the 'general duty', The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 and the Fairer Scotland Duty (Part 1 of the Equality Act 2010) which came into effect in Scotland in April 2018.
Public bodies must comply with the Public Sector Equality Duty (PSED) in the Equality Act 2010 which requires public bodies to have due regard to three equality aims when exercising their functions, including procurement:
- eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct
- advance equality of opportunity between people who share a relevant protected characteristic and those who do not
- foster good relations between people who share a protected characteristic
This is referred to as the general duty and is a legal requirement for all procurements that we undertake.
In addition to the general duty, the 2012 regulations contain a specific duty relating to procurement. When awarding contracts on the basis of the most economically advantageous tender, the contracting authority must have due regard to:
- whether the award criteria should include considerations to enable it to better perform the equality duty
- when a contracting authority proposes to stipulate performance conditions in a contract or framework agreement, whether those conditions should include considerations to enable it to better perform the equality duty
The specific duty applies whenever a contract or framework agreement is awarded that is covered by PC(S)R 2015, i.e. procurements with a value above the EU thresholds. Where a contract or framework agreement is to meet a particular equality requirement or group’s needs, it would be considered best practice to include relevant conditions even where the contract or framework agreement is below the EU thresholds.
The Fairer Scotland Duty places a requirement on particular public bodies in Scotland to have due regard to how they can reduce inequalities of outcome caused by socio-economic disadvantage, when making strategic decisions. Compliance with the Fairer Scotland Duty aligns with the Sustainable Procurement Duty in the Procurement Reform (Scotland) Act 2014. Further information on the Fairer Scotland Duty is in the interim guidance for public bodies.
To have ‘due regard’ means that when making decisions about procurement, a body subject to the duty must consciously consider the needs of the duty (eliminate discrimination, advance equality of opportunity, foster good relations, and reduce inequalities of outcome ). How much regard is due will depend on the individual circumstances and the relevance of the duty to the procurement in question. Further information about due regard is in the EHRC Technical Guidance on PSED.
Where a contractor is carrying out a public function i.e. when delivering services and functions which have been contracted out by a body subject to the duty, the contractor will be required to comply with the duty, but only in respect of carrying out that public function.
A body subject to the duty must ensure that any contractors appointed in such circumstances are capable of complying with the duty, understand their obligations, and meet the duty in practice. Bodies subject to the duty are listed in of Schedule 19, Part 3 of the Equality Act 2010.
Equality Impact Assessment (EQIA)
When planning for a procurement and developing a procurement strategy the need to undertake and publish an equality impact assessment (EQIA) should be considered. Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 requires that, when developing new or revised policies, these should be subject to an EQIA.
Depending on your procurement, EQIA may be an integral part of the procurement process. EQIA looks at how your procurement might impact on people with protected characteristics and helps to identify and mitigate impacts and opportunities to promote equality. For example when commissioning services for individuals like social care, considerations may include:
- Do current arrangements adversely affect people with protected characteristics or unlawfully discriminate against them?
- Are there indicators available, such as service take up or satisfaction levels, implying disadvantage / discrimination among people with protected characteristics, or that the service does not meet their needs? If there are no indicators available should these be developed?
- Are there demographic changes that might create or shape new needs?
- Are there changes you could make to what you buy / how you buy it?
- Is it possible to widen access to the services such as the inclusion of reasonable adjustments, i.e. making changes to the built environment or providing auxiliary aids to make a service accessible?
Further information on EQIA is in the EHRC Assessing impact and the Public Sector Equality Duty guide. Equality and diversity colleagues will be able to advise on networks or equality groups to contact where it is proportionate to do so. Some examples might be:
- Equality & Human Rights Commission
- Age Scotland
- Children and Young People’s Commissioner Scotland
- Disability Equality Scotland
- Inclusion Scotland
- Stonewall Scotland
- Equality Network
- Close the Gap
- Black and Ethnic Minority Infrastructure Scotland (BEMIS)
- Coalition for Racial Equality and Rights (CRER)
- Interfaith Scotland
Fairer Scotland for Women: Gender Pay Gap Action Plan
The Scottish Government has published A Fairer Scotland for women: gender pay gap action plan setting out the actions that will be taken to address the many drivers of the gender pay gap.
The gender pay gap is the difference in average pay between men and women in an organisations workforce. It is different to equal pay which means organisations must pay men and women the same for equal or similar work. The gender pay gap intersects with other inequalities connected to ethnicity, disability and age, amongst others. For example, it increases with age.
The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 came into effect on 6 April 2017 and requires employers with 250 employees to publish their gender pay gap information annually. In addition, employers can chose to provide a supporting narrative with their data that explains their view of why a gender pay gap is present and what they intend to do to close it. This applies to businesses and charities based in England, Scotland and Wales.
Scottish public sector organisations also have a duty to publish their gender pay gap information under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.
A Fairer Scotland for Disabled People – Employment Action Plan
The disability employment gap is the disparity between employment rates for disabled people and those who are not disabled. The Scottish Government published A Fairer Scotland for Disabled People: Employment Action Plan setting out the steps we will take to meet its ambition to at least halve the disability employment gap in Scotland by 2038. As at 2016, our baseline year, the gap stood at 37.4 percentage points.
Procurement can contribute to this ambition, for example by reserving contracts so that only supported businesses can bid for them, by including community benefits in contracts, where it is relevant and proportionate to do so, and by considering how the contract could be delivered through a more diverse workforce than may currently exist, which would include more disabled people.
The Procurement Reform (Scotland) Act 2014 (the Act) places a sustainable procurement duty on a contracting authority before they buy anything, to think about how they can – though their procurements - improve the social, environmental and economic wellbeing in Scotland, with a particular focus on reducing inequality, for example through the appropriate use of this tool, and the application of relevant and proportionate contract requirements.
The Act also requires obligated organisations to develop a corporate procurement strategy and report against its delivery at the end of each year, emphasising the importance of monitoring and reporting delivery of intended sustainable outcomes.
The public procurement regulations allow a contracting authority to exclude companies from tendering for public contracts for not meeting certain conditions i.e. breach of any obligations in the fields of environmental, social or labour law; and select the most suitable bidders based on technical ability and previous experience in relation to the subject matter of the contract. This is done through the European Single Procurement Document (ESPD (Scotland)).
The public procurement regulations also permit contracting authorities to reserve participation in a public procurement to supported businesses, where there are enough suitable suppliers. Supported businesses are defined as businesses for which the core purpose is the social and professional integration of disabled or disadvantaged persons and where at least 30% of the employees of those businesses are disabled or disadvantaged persons. This approach recognises that supported businesses have a valuable role both as a stepping stone into mainstream employment for disabled and disadvantaged persons as well as for those who are unable to progress on to the open labour market.
Contracting authorities are also required to consider the inclusion of community benefits in contracts of £4m or more. These clauses could be used to promote equality and to reduce inequality, for example by targeting community benefits requirements at particular priority groups to help them enter the labour market. Priority groups might be women, ethnic minorities, disabled people, the long-term unemployed or people with convictions etc.
Reviewing equality or demographic data may help target the application of community benefits on particular disadvantaged areas or priority groups. A contracting authority may also have a particular priority group as a key customer. The Scottish Index of Multiple Deprivation (SIMD) and the Equality Evidence Finder may be useful.
Fair Work practices for the workforce engaged on the contract
Contracting authorities are required by statutory guidance to consider, before undertaking a regulated procurement exercise, whether it is relevant to include criterion to address Fair Work practices for the workforce engaged on the contract.
Fair Work practices include equality and diversity matters which can have an impact on the way the contract is performed, for example gender balance on boards, a diverse workforce and closing the gender pay gap.
Bidders are asked as a minimum to adopt the ‘Fair Work First’ practices, which includes taking action to tackle gender pay gap.