Board Diversity and the Public Sector Equality DutyA guide for public authorities in ScotlandContent

Equality and Human Rights Commission· Published: October 2016 1

Board Diversity and the Public Sector Equality Duty

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1 | Introduction........................................................................................................3

Context for this guide...............................................................................................3

Legal status of this guide.........................................................................................3

Aim of this guide......................................................................................................4

Who this guide is for................................................................................................4

Content of this guide................................................................................................4

2 | Board diversity and the Public Sector Equality Duty.........................................7

The general equality duty........................................................................................7

The specific duties...................................................................................................8

A note on terminology..............................................................................................8

3| Purpose of the duty on board diversity....................................................................9

4| Summary of the duty on board diversity...............................................................11

Scottish Ministers: gathering board member information......................................11

Relevant listed authorities: publishing member information...................................11

5| Scottish Ministers: gathering and providing board member information................13

6| Listed authorities: using board member information..........................................14

Using board member information: positive action..................................................14

7| Relevant listed authorities: publishing board member information.....................16

Relevant listed authorities.....................................................................................16

Publishing board member information...................................................................16

Bibliography..............................................................................................................18

Contacts....................................................................................................................19

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1 | Introduction

Context for this guide

This guide is one of a series written by the Equality and Human Rights Commission (‘the Commission’) to explain how public authorities can meet the requirements of the Equality Act 2010 (‘the Act’), which prohibits discrimination, harassment and victimisation. The Act includes a Public Sector Equality Duty, which came into force on 5 April 2011.

There are eight guides in the series providing advice on the Public Sector Equality Duty in Scotland:

1. Essential Guide to the Public Sector Equality Duty

2. Equality Outcomes and the Public Sector Equality Duty

3. Evidence and the Public Sector Equality Duty

4. Involvement and the Public Sector Equality Duty

5. Assessing Impact and the Public Sector Equality Duty

6. Mainstreaming the Equality Duty: a Guide for Public Authorities

7. Employee Information and the Public Sector Equality Duty

8. Board Diversity and the Public Sector Equality Duty (this guide)

The ‘Essential Guide’ gives an overview of the requirements of the Public Sector Equality Duty.

Legal status of this guide

This guide gives advice on how to meet the Public Sector Equality Duty. It will help public authorities to comply with their legal duties under:

Section 149 of the Equality Act 2010 (the Public Sector Equality Duty), and

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the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 as amended.

Aim of this guide

This publication aims to help authorities subject to the specific duty relating to the use of member information (referred to in this document as ‘board member information’ or ‘information on board diversity’). It provides more detailed advice to supplement that set out in the ‘Essential Guide to the Public Sector Equality Duty’.

Who this guide is for

It is aimed at those responsible for implementing the Public Sector Equality Duty in public authorities in Scotland. It will be of interest to board members of a listed authority and to staff across public authorities, particularly those in charge of holding and using board member information for listed and relevant listed authorities.

It will also assist those who have an interest in the work of public authorities such as service users, voluntary bodies, unions, and equality organisations.

Content of this guide

This guide:

explains the purpose of gathering information on relevant protected characteristics from board members of listed authorities

outlines the obligations of listed authorities to use board member information under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 as amended (the specific duties)

explains the purpose of using board member information and how it relates to other requirements of the Public Sector Equality Duty

provides guidance on using board member information, confidentiality issues and the Data Protection Act 1998

describes the obligations on relevant listed authorities to publish plans for how they will use board member information, and

sets out the timing for publishing information and appropriate publication formats.

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This guidance is for public authorities in Scotland. Separate guidance on the Public Sector Equality Duty is available for public authorities in England (and bodies with non-devolved functions in Scotland and Wales) and public authorities in Wales. These reflect the differences in the specific duties for England and Wales.

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2 | Board diversity and the Public Sector Equality Duty

The Public Sector Equality Duty is set out in the Equality Act 2010 and is here referred to as the ‘general equality duty’. If you are listed in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended) you are also covered by specific duties, which are designed to help listed authorities meet the general equality duty. Further information on the Public Sector Equality Duty can be found in our ‘Essential Guide’.

The general equality duty

The general equality duty requires public authorities, in the exercise of their 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 do not, and

foster good relations between people who share a protected characteristic and those who do not.

This guidance refers to these elements as the three ‘needs’ and so when we discuss the general equality duty we mean all three needs.

Advancing equality of opportunity includes in particular having due regard to the need to:

remove or minimise disadvantages suffered by people who share a relevant protected characteristic that are connected to that characteristic

take steps to meet the needs of people who share a relevant protected characteristic that are different from the needs of people who do not share it, and

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encourage people who share a relevant protected characteristic to participate in public life or in any other activity in which participation is disproportionately low.

The Public Sector Equality Duty covers the following protected characteristics: age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. It also covers marriage and civil partnership, with regard to eliminating unlawful discrimination in employment.

Age discrimination in services and public functions is prohibited against people aged 18 and over. This means that people under 18 are covered by the duty with regard to advancing equality of opportunity and fostering good relations.

The specific duties

The purpose of the specific duties in Scotland is to help those authorities listed in the Regulations in their performance of the general equality duty.

For a complete list of authorities covered by the Regulations and their reporting cycles, as well as a list of ‘relevant listed authorities’ for the duty on board diversity, see our publication ‘Public Authorities in Scotland – Who is covered by the Specific Duties?’

A note on terminology

The term ‘board members’ is used as shorthand in this guidance to mean ‘members of listed authorities and members of the board of management of listed authorities’ and similarly the title used for the guidance is ‘Board Diversity’.

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3| Purpose of the duty on board diversity

The Scottish Government has made a commitment to ensure that those appointed to public boards better reflect the diversity of the Scottish population. As part of that commitment, the Government under this new requirement will be collecting information on the diversity of board members and will feed that information back to listed authorities. Listed authorities are then required to make use of the information gathered to increase the diversity of board membership as part of their recruitment and succession planning programmes.

The Commissioner for Ethical Standards in Public Life in Scotland (2016) publishes information on board diversity. This table provides details of how Scotland’s board members reflect the population as a whole at the end of 2015 in relation to some protected characteristics.

Demographic profile of board membership

Target group Profile of board members† at the end of 2015

Scottish population(2011 Census)

Female 42.0% 51.5%

Disabled 11.8% 19.6%

Ethnic minority1 3.5% 4.0%

Aged 49 and under 17.6% 54.3%*

Lesbian, gay and bisexual 3.0% 6.0%**

1 The Commissioner for Ethical Standards in Public Life in Scotland employs the term ‘Black and minority ethnic’, meaning all ethnic groups excluding White ethnic groups as defined by the Office for National Statistics. This term has been replaced by the equivalent ‘ethnic minority’, in line with Commission editorial policy.

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† All board members inclusive of the chair, unless otherwise stated.

Percentages do not include those who did not make a declaration.

* Scottish population aged 18 to 49 as a percentage of the whole population aged 18 and over.

** Estimated based on information from Stonewall Scotland website.

How the demographic profile of boards is changing

Target group Scottish population(2011 Census)

All board members (inclusive of chairs)

2004/05 2013/14 2014/15 2015/16Female 51.5% 34.5% 35.0% 38.4% 42.0%

Disabled 19.6% 2.4% 13.1% 15.3% 11.8%

Ethnic minority 4.0% 2.8% 2.2% 2.9% 3.5%

This new requirement on board member information will improve the transparency of the work already underway to develop Scotland’s board diversity, creating an opportunity to share good practice. It will increase the accountability of Scottish Ministers and public bodies for action to address underrepresentation, depending on who is responsible for the relevant appointment. Most board members of public authorities, such as the Scottish Children’s Reporter Administration, are appointed, often by Scottish Ministers. Some are members by virtue of an executive position they hold, such as chief executive, as with Bòrd na Gáidhlig. Others may have been elected, as with Ayrshire College, for example.

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4| Summary of the duty on board diversity

Scottish Ministers: gathering board member information

Scottish Ministers are required, from time to time, to gather information confidentially about the protected characteristics of listed authorities’ board members, collate this information and report it back to each authority.

The timing of information gathering will be decided by Scottish Ministers. However, it will need to take place at sufficiently regular intervals to allow the effective use of the information by listed authorities.

The listed authority is required to use the information to better meet its general equality duty.

Relevant listed authorities: publishing member information

A relevant listed authority (discussed in Chapter 7) is required to publish information on the number of men and of women on their Board and set out the action they have taken and will take in the future to improve the diversity of their members. The publication should form part of their mainstreaming report.

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Use of board member information: key dates for introduction

Scottish Ministers invite board members to complete information on their relevant protected characteristics

November 2016

Board members provide their own details using the secure online system

November 2016

Scottish Ministers make information on the current diversity of their board members available to listed authorities

December 2016

Scottish Ministers publish anonymised national and sectoral level information on the relevant protected characteristics of members of boards of listed authorities

April 2017

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5| Scottish Ministers: gathering and providing board member information

To implement the duty, Scottish Ministers will establish and pre-populate a secure online system with the names of board members.

Board members will be invited to complete information on their relevant protected characteristics from time to time as determined by Scottish Ministers. Scottish Ministers will set out in this invitation exactly how the information will be held, processed and used.

Board members will then complete their own details using the online system. The chief executive or equivalent office holder of each listed authority will only be able to see a summary of the progress of this information gathering in order to manage the completion of the process. They will not be able to see the protected characteristics of individual members.

Once the information gathering is complete, anonymised and aggregated information on the relevant protected characteristics of their board members will be made available by Scottish Ministers to each listed authority. This data will be held confidentially and will not be published, except in relation to gender.

Scottish Ministers will publish anonymised national and sectoral level information on the relevant protected characteristics of all members of boards of listed authorities. Access to the system will be controlled by Scottish Ministers’ user accounts, ensuring that the users of the system only have access to the data and reports relevant to them and all information must be held and processed in accord with the requirements of the Data Protection Act 1998.

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6| Listed authorities: using board member information

A listed authority in receipt of information from Scottish Ministers must use this information to meet the general equality duty.

This information must be held and processed by the authority in accordance with the requirements of the Data Protection Act 1998.

Further advice, including the requirements of the Data Protection Act, can be found in Appendix 1 of our guide ‘Evidence and the Public Sector Equality Duty’.

To implement the duty, the information about the relevant protected characteristics of the authority’s board members will be anonymised and quantitative. This will allow a listed authority to compare the composition of their board with the demographic profile of the population when succession planning.

Scottish Ministers will publish national and sectoral information on the relevant protected characteristics of members of boards of listed authorities. This will enable listed authorities to compare themselves against other similar bodies, for example a health board will be able to compare the diversity of its board with those of others when succession planning.

Further information and guidance about succession planning will be provided by Scottish Government. Guidance available from the Commissioner for Ethical Standards in Public Life in Scotland covers issues such as barrier free recruitment and selection.

Using board member information: positive action

Where analysis of member information leads a listed authority to believe that people who share a particular protected characteristic may be underrepresented among board members, the authority may wish to consider taking positive action to improve

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board diversity. Positive action provisions permit proportionate action which has the aim of enabling or encouraging people who share a protected characteristic to:

overcome or minimise a disadvantage connected to that characteristic

meet any needs that are different from the needs of those who do not share that characteristic, or

participate in an activity where their participation is disproportionately low.

Positive action may include, for example, steps to encourage people from underrepresented groups to apply for board positions or targeted provision of development opportunities such as training or shadowing to help build the attributes sought in board members for the body concerned.

Further guidance concerning positive action can be found in our Employment Statutory Code of Practice, available on the Commission’s website.

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Example

A NHS board realises that, although it serves a large Asian community, there is no-one from that community on its board. In discussion with Asian community groups it becomes clear that information about the board and its vacancies is not reaching them through the customary communication channels.

To improve this situation, the board decides to create and distribute information about any vacancies to Asian community groups, asking them to disseminate this across their networks and providing template wording to help them do so. It also holds information sessions about the work of the board specifically targeted at the community.

Board Diversity and the Public Sector Equality Duty

7| Relevant listed authorities: publishing board member information

Relevant listed authorities

The duty to publish gender information about board members, and information on how an authority will make use of that information, applies only to a ‘relevant listed authority’. A relevant listed authority is one whose members, or whose board of management, include at least one appointed member.

Our publication ‘Public Authorities in Scotland – Who is covered by the Specific Duties?’ identifies all relevant listed authorities.

The regulations make clear that the following authorities are not relevant listed authorities, even though they would meet the definition:

Scottish Ministers

a council

a joint board

a licensing board

an education authority, and

an individual holder of a public office.

Publishing board member information

Relevant listed authorities must publish:

the number of men and women who have been board members of the authority during the period covered by the report

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how the information provided about the relevant protected characteristics of its board members has been used so far, and

how the authority proposes to use the information provided in the future to promote greater diversity of board membership.

This means that authorities are required to report both on the steps they have taken, and on the steps they plan to take, in relation to all relevant protected characteristics, to promote board member diversity.

Because of the small numbers of board members, care must be taken not to inadvertently disclose protected characteristics associated with individuals. Other than numbers of men and women as members of the board of the authority, no information on protected characteristics should be published in the report.

You should ensure all personal and sensitive information is processed in accordance with the Data Protection Act 1998.

Further advice, including the requirements of the Data Protection Act, can be found in Appendix 1 of our guide ‘Evidence and the Public Sector Equality Duty’. In addition, more information on good practice in this area can be found on the Information Commissioner’s Office website.

From April 2017 public authorities must include the information set out above in their mainstreaming report.

For more information on mainstreaming reports please see our guidance ‘Mainstreaming the Equality Duty: a Guide for Public Authorities, Scotland’.

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Bibliography

Commissioner for Ethical Standards in Public Life in Scotland (2016), ‘Annual Report and Accounts 2015/16’ [accessed: 12 October 2016]

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Contacts

This publication and related equality and human rights resources are available from the Commission’s website.

For advice, information or guidance on equality, discrimination or human rights issues, please contact the Equality Advisory and Support Service, a free and independent service.

Telephone 0808 800 0082

Textphone 0808 800 0084

Hours 09:00 to 20:00 (Monday to Friday)10:00 to 14:00 (Saturday)

Post FREEPOST Equality Advisory Support Service FPN4431

Questions and comments regarding this publication may be addressed to scotland@equalityhumanrights.com. The Commission welcomes your feedback.

What formats are available?

This guide is available as a PDF file and as a Microsoft Word file from the Commission’s website. For information on accessing a Commission publication in an alternative format, please contact: correspondence@equalityhumanrights.com.

© 2016 Equality and Human Rights Commission

ISBN 978-1-84206-547-1

First published October 2016

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