1Introduction
Our inquiry
1.We have repeatedly heard that the Equality Act 2010 is breached without challenge and that what little enforcement is happening is insufficient to tackle the systemic or routine discrimination that too many people experience as a simple fact of life. In inquiry after inquiry individuals have reported significant barriers to enforcing their rights under the Act; public sector bodies, including regulators and inspectorates, have shown a lack of knowledge of their duties; we have found widespread, unchecked, discrimination affecting older workers in recruitment, Gypsy, Roma and Traveller communities in health, education and access to services, disabled people in housing, transport and access to the public realm. We have found harassment occurring in employment and public places, pushing women out of jobs and insufficient action being taken to tackle sexual harassment for women and girls in public places. We have found the Equality and Human Rights Commission (EHRC) failing to act in areas of significant inequality and unable to provide an adequate explanation of why it appears not to be able to fulfil the role of a robust enforcer of equality law.
2.We have already made several recommendations related to enforcement of the Equality Act 2010. In inquiries including pregnancy and maternity discrimination, disability and the built environment, workplace dress codes, older people and employment and sexual harassment, we made recommendations about awareness and clarity of the law, access to advice, tribunals and courts, the types of remedies available, enforcement by the EHRC and alternative means of enforcement. These themes are in line with those identified by the 2016 report of the House of Lords Committee on the Equality Act and Disability,2 the recommendations of which this Committee has committed to follow up.
3.While some of our recommendations have been implemented, many have not and until now we have mainly looked at the question of enforcement through the lens of specific protected characteristics. We therefore agreed in July 2018 to launch a dedicated inquiry titled ‘Enforcing the Equality Act 2010: the law and the role of the EHRC’. This inquiry examines the legal aspects of enforcement across all protected characteristics and the effectiveness of the EHRC in fulfilling its enforcement role, following up and building on our past inquiries.
4.The vast bulk of evidence came from individuals and organisations concerned with reducing the burden on those experiencing discrimination, but we were conscious that employers and service providers can also face burdens when faced with law that is unclear, inconsistently applied or not taken properly into account by other enforcement bodies that they interact with. One area where this came through strongly in our evidence was the provision of single-sex services and we consider this in Chapter 7.
The Equality Acts 2006 and 2010
5.The Equality Act 2010 brought together several pieces of equality legislation into one Act. It protects against discrimination on the grounds of the “protected characteristics” of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation, and requires reasonable adjustments to avoid putting disabled people at a “substantial” disadvantage.
6.These provisions apply to both the public and private sectors in employment, education, housing, goods and services, public services and transport. The Act also contains a duty on public authorities to “have due regard” to the need to eliminate unlawful discrimination, advance equality, and foster good relations (the Public Sector Equality Duty or ‘PSED’, also referred to as the ‘general duty’).
7.The Equality Acts 2006 and 2010 set out the legal details on enforcement, such as which court a case can be brought in, the remedies available and the time limits that apply. Enforcement is also affected by other more general laws that govern the operation and rules of the tribunal and courts system, such as on legal aid, costs and court processes.
The Equality and Human Rights Commission
8.The Equality and Human Rights Commission was created from a merger of the previous Commissions on race, sex and disability with a remit extended to include the remaining protected characteristics, plus human rights. The Equality Act 2006 sets out its duties and powers, which are similar to those held by the previous Commissions. When the EHRC opened its doors in 2007 some of these powers were limited to certain protected characteristics but the 2010 Equality Act updated and harmonised the powers of the EHRC so that they are now broadly the same across all protected characteristics.
Devolution
9.There are some differences in how the Equality Act 2010 applies in England, Wales and Scotland, the most significant being in the public sector equality duty. The ‘general duty’ is the same across all three nations but decisions on the specific duties—designed to support performance of the general duty—are devolved. The action required of public bodies under the Welsh and Scottish specific duties is more extensive than the requirements in England. Northern Ireland has its own anti-discrimination laws, separate from the Equality Act 2010, and a different public sector equality duty.
10.The Equality and Human Rights Commission operates across England, Wales and Scotland, with statutory Committees helping it to “identify opportunities to advance equality and human rights in the specific political, economic and social contexts of Wales and Scotland”.3 In Scotland it shares its remit with the Scottish Human Rights Commission, which is responsible for human rights in devolved matters.
2 House of Lords, Report of the Select Committee on the Equality Act 2010: The impact on disabled people, Session 2015–16, HL Paper 117
3 Equality and Human Rights Commission, Strategic Plan 2019–22 (June 2019), p8
Published: 30 July 2019