Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission Contents

Summary

Creating a fairer society where people are not treated differently because of the colour of their skin, their sex, gender, sexuality or religion is central to British values. Protecting people from discrimination is central to achieving that. The work of the Committee in many of our reports has uncovered the destructive impact discrimination has on people’s lives, as well as the heavy cost that puts on society and public services. Ensuring anti-discrimination and equality laws work effectively could not be more important.

We started this inquiry with a sense from our work over the past four years that for equalities legislation to be more effective the burden of enforcement needed to shift away from the individual facing discrimination. This inquiry has confirmed that not only is this burden too high, but that that the individual approach to enforcement of the Equality Act 2010, and its predecessors going back to the 1960s and 70s, is not fit for purpose. While individuals must still have the right to challenge discrimination in the courts, the system of enforcement should ensure that this is only rarely needed. This requires a fundamental shift in the way that enforcement of the Equality Act is thought about and applied. We want to see a model that can act as a sustainable deterrent to achieve system-wide change that tackles institutional and systemic discrimination.

There are methods we have identified in this report readily available to achieve this: developing a ‘critical mass’ of cases to inform employers and organisations about their legal duties and make adherence to existing equality law a priority for all organisations, moving away from the current model of using individual litigation to create precedents; making obligations on employers, public authorities and service providers explicit and enforceable; and ensuring that all who have powers to change the way in which employers, public bodies and service providers operate use those powers to eliminate discrimination and to advance equality. If their current mandate limits their ability to do this, then the Government must legislate to remove this limitation.

This requires the Equality and Human Rights Commission to refocus its work. Whilst its financial resources have reduced significantly in recent years it continues to have extensive enforcement powers, a staff of more than 200 people and expenditure of £18.4 million per year.1 As an organisation it must overcome its timidity and be bolder in using the existing powers that only it has; increasing its own enforcement activity; and doing so in a strategic way that acts as a multiplier across entire sectors in the longer term—for example by making regulators, inspectorates and ombudsmen not only key partners in creating a critical mass of enforcement action but also key targets for enforcement action when those same regulators, inspectorates and ombudsmen fail to meet their own equality duties.

We want to see more action taken by regulators, inspectorates and ombudsmen, not least from the Government’s Labour Market Enforcement Director who we believe should be playing a fundamental role—alongside the proposed new single labour market enforcement body. If such bodies acted consistently on their obligations the Equality and Human Rights Commission could become the strategic enforcer that it and the Government say that it should be.

Government itself must also make this fundamental shift in the way that enforcement of the Equality Act is thought about and applied. It must act on its own obligations to embed compliance and enforcement of the Equality Act into its most significant strategies and action plans. That it has not yet done so in its recent efforts to improve the quality of work, an area where stopping discrimination is so clearly an essential precondition to any improvements—beggars belief. This must change, and the recommendations of this report provide clear instructions on how to do so.


1 Equality and Human Rights Commission, Business Plan 2019/20 (April 2019), p14




Published: 30 July 2019