The Scottish Qualifications Authority has not had its problems to seek of late. As has been well documented, teachers have spent much of the past two years frustrated with the organisation and the way it has dealt with the disruption caused by the pandemic.

The way in which students were assessed in 2020 and 2021 proved highly controversial.

Then, in June this year, the Scottish government said that the SQA would be replaced - and we might have assumed that would be the end of the body’s woes, as it lived on borrowed time.

But in September, the SQA was back in the spotlight for all the wrong reasons after it was pulled up by the Equality and Human Rights Commission (EHRC) for failing to routinely assess policies against the public sector equality duty - a legal obligation for all public bodies that requires them to consider how decisions affect people who are protected under the Equality Act.

The EHRC said that the exam board was not giving due regard to the need to eliminate discrimination and advance equality of opportunity.

The EHRC used its legal powers under Section 23 of the Equality Act, to enter into the agreement with SQA. That agreement is set to run for two years and the SQA will be required to report on its progress.

So, where did it all go wrong?

The SQA came on to the EHRC’s radar after national exams were cancelled for the first time in 2020 as a result of the pandemic, and the exam board was given the task of coming up with a different way of assessing students.

The SQA exams body faces questions over equality

One key concern about the model that the SQA designed - which turned out to be warranted - was that the SQA planned to use past attainment to moderate the grades awarded by teachers. The fear was that this would have a negative impact on high-attaining pupils in traditionally low-attaining schools, and it led to questions about whether an equality impact assessment had been carried out by the SQA.

On 1 May, when SQA chief executive Fiona Robertson appeared before the Scottish Parliament’s Education and Skills Committee, she said that the SQA was in discussions with the EHRC, including about its “work on an equality impact assessment”.

However, those discussions, which began in April 2020, led to further discussions in early 2021 “regarding wider compliance” and it was established that the SQA “was not routinely assessing the impact of its policies and practices”.

All listed public authorities must carry out equality impact assessments before they implement policies, with a view to assessing their impact against the three needs of the public sector equality duty. It requires public authorities to give due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people who share protected characteristics and those who do not. As the Equality and Human Rights Commission puts it, this is a legal requirement, “not a ‘nice to do’”.

The Scottish government has, however, been at pains to stress that the failures identified at the SQA relate to “historical practices and policies”.

On 6 October, education secretary Shirley-Anne Somerville told the Scottish Parliament’s (now renamed) Education, Children and Young People Committee that “all the required equality impact assessments in relation to the awarding of national qualifications over the past two years were completed and have been published”.

However, she admitted that there had been “substandard practice in years gone by” and that “historical policies are being looked at and actioned”.

Ms Somerville said that 28 equality impact assessments had been completed since August by the SQA.

The Greens’ education spokesperson, Ross Greer, who sits on the committee, said during the same meeting that, as he understood the situation, it wasn’t that equality impact assessments at the SQA “took place but were unsatisfactory”, but that “they regularly simply did not take place at all”.

And Labour’s education spokesperson, Michael Marra, said he had been told that the issue related to “112 policies at the SQA, including awarding meetings for national courses, awarding body approval policy, equality of access to qualifications, the qualifications framework, grading for national courses, Disclosure Scotland policy and the SQA skills framework.”

However, the detail of the SQA’s failings are somewhat hazy, given that the Section 23 agreement is confidential.

Tes Scotland has been told by the SQA that it has 102 policies, including several new policies in development, that will be reviewed over the next two years in line with the Section 23 agreement.

On 6 October, Mr Marra also asked Ms Somerville if the Scottish government could be open to any legal challenge “from young people who feel that they have been let down”. Ms Somerville said that she had been reassured “that the types of policy for which [equality impact assessments] remain outstanding have not had any implications for awards”.

Tes Scotland asked the Equality and Human Rights Commission if the SQA’s failings could have any implications for schools, but it replied that its focus was on the policies and processes the SQA has in place “rather than outcomes”.

In a recent blog, Natalie Johnston, a lawyer in the EHRC enforcement team who is working primarily on Section 23 agreements, said that the agreements can actually be beneficial for organisations because they result in “good practices that strengthen equality and diversity”, which can “reduce the risk of expensive legal action and reputational damage”.

The SQA’s reputation is arguably beyond saving at this late stage of its existence, but perhaps an expensive legal bill can yet be avoided. However, the issues only came to light because of the extra scrutiny on the SQA after the cancellation of exams - and surely the pursuit of equality should not be reliant on happenstance.

Emma Seith is a reporter at Tes Scotland. She tweets @Emma_Seith

This article originally appeared in the 29 October 2021 issue under the headline “Equality concerns put troubled exam board back in the spotlight”