Public Sector Equality Duty - operation review: consultation analysis

Independent analysis of consultation responses to the Scottish Government Public Sector Equality Duty (PSED) Review. The consultation ran from 13 December 2021 to 11 April 2022.

16 Positive Action

16.1 Context

Section 158 of the Equality Act 2010 provides general provisions on positive action. This section applies "if a person reasonably thinks that:

  • Persons who share a protected characteristic suffer a disadvantage connected to the characteristic.
  • Persons who share a protected characteristic have needs that are different from the needs of persons who do not share it.
  • Participation in an activity by persons who share a protected characteristic is disproportionately low."

Section 158 goes on to state that the Equality Act 2010 does not prohibit that person "from taking any action which is a proportionate means of achieving the aim of:

  • Enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage.
  • Meeting those needs.
  • Enabling or encouraging persons who share the protected characteristic to participate in that activity."

This section applies to all fields within the Act, including education, the provision of services, and some aspects of employment. However, it does not apply where section 104 (selection of political candidates) or section 159 (positive action: recruitment and promotion) apply.

The Equality and Human Rights Commission (EHRC) has said that it is not clear the extent to which listed authorities use the positive action provisions in the Equality Act 2010. They advise that they would expect to see this in existing mainstreaming reports or progress reports on outcomes (with the exception of the tie-break provision under section 159, which may risk identification of relevant people) but this is rarely the case. They believe there is a need both to encourage better use of positive action by listed authorities and subsequent reporting.

16.2 Question 13 - Reporting on Positive Action

EHRC has expressed the view that listed authorities should report on how they have used positive action under section 158 of the Equality Act 2010, as part of their reporting obligations. What are your views on this?

Around 85% of respondents answered Question 13.

16.2.1 Respondents who support the proposal

Most respondents express support with the EHRC view that listed authorities should report on how they have used positive action under section 158 of the Equality Act 2010, as part of their reporting obligations.

Common feedback from these respondents is that:

  • The proposal is considered "reasonable" or "sensible".
  • Positive action is considered "an important tool to reach persons with protected characteristics and improve outcomes".
  • Many listed authorities already report on positive action within existing mainstreaming reports or progress reports on outcomes "but may not label it as such".

Some respondents including Close the Gap, an equality advocacy group, cite research[7] which suggests that positive action is "significantly underused". Other respondents consider there to be a lack of empirical data to evidence the use of positive action. These respondents feel that the proposal could increase the use of positive action and lead to improved availability of information and data on its use/impact.

Theme 1: Positive action reporting within mainstream reporting rather than as an additional burden

Most respondents consider it reasonable and sensible that positive action reporting should be included within existing mainstreaming reporting rather than as an additional reporting burden. It is suggested that setting out a clear definition of 'positive action' would help to raise awareness of, and encourage greater use of, positive action among listed authorities.

Theme 2: Actions to support reporting of positive action

Many respondents (e.g. all organisation sub-categories), suggest actions which could support listed authorities to report on their use of positive action, including:

  • A clear definition of positive action could avoid any confusion with positive discrimination.
  • The provision of updated and improved guidance, including good practice examples/case studies, could be shared among listed authorities to encourage knowledge exchange.
  • Positive action reporting could include details of the impact of positive action undertaken (i.e. reporting could go beyond information on the nature of the positive action undertaken).

16.2.2 Respondents who have issues or concerns

A few respondents raise issues or concerns with the proposal, including:

  • A few listed authorities call for greater clarity from the Scottish Government regarding whether they would face punitive action if they are not able to comply with the requirement. These respondents feel that a better approach may be for positive action reporting to be "encouraged" rather than mandatory reporting.
  • A couple of listed authorities note the difference in the wording of the proposal compared to the Equality Act 2010 which 'permits' positive action but does not 'require' it. These respondents ask the Scottish Government to consider whether mandating positive action reporting could be perceived to mandate the taking of positive action, and the extent of its powers in this regard.
  • A few respondents' express concerns around data disclosure and data sensitivity.

16.2.3 Respondents who do not support the proposal

A handful of respondents (e.g. listed authorities) state that they do not support the proposal. These respondents feel that positive action should not be a reporting obligation, and suggest a more appropriate approach may be through research.

"Such information gathering ideally ought to be gathered through a research exercise rather than through an Equality Mainstreaming reporting method. The reason for doing so is due to the lack of case-by-case support provided by the EHRC or Scottish Government on implementing positive action initiatives, which by their nature, are individualistic – beyond the current minimal and static published guidance."

Scottish Equality Forum for Colleges and Universities



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