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

3The enforcement role of the Equality and Human Rights Commission

24.The Equality and Human Rights Commission is the ‘national equality body’ for England, Wales and Scotland. It is required by statute to promote understanding of the importance of and encourage good practice in relation to equality and diversity; promote equality of opportunity; promote awareness and understanding of rights under the Equality Act; enforce the Equality Act; and work towards the elimination of unlawful discrimination and unlawful harassment.23

25.It came into being on 1 October 2007 as a merger of the three former equality commissions on race, gender and disability,24 with the addition of responsibilities on religion or belief, sexual orientation, age, gender reassignment and human rights. It has a range of powers that include: provision of information and advice; issuing codes of practice and other guidance; and advising government on the effects of laws and proposed laws on equality and human rights. It also has substantial powers to enforce the Equality Act, many of which it inherited from the previous equality commissions.

Box 1: Powers of the Equality and Human Rights Commission

The Equality Act 2006 gives the Commission powers to:

Conduct investigations into compliance with the Equality Act 2010. Where a person is found to have committed an unlawful act it may issue a notice to this effect and may require the preparation of an action plan to avoid the act being repeated or continued.

Conduct assessments of compliance with the public sector equality duty and issue a compliance notice where it finds a breach. This may require the public authority concerned to provide a written proposal on steps to ensure compliance.

Enter into binding agreements with organisations who commit to take, or refrain from taking, specified action. This could be used as an alternative to taking other formal enforcement action.

Apply to the court for an injunction restraining a person from committing an unlawful act.

Breach of a notice or court order issued under the above powers can be enforced in court and lead to an unlimited fine.

Support individual complainants to bring a case (including financial support), bring judicial review proceedings in its own name and intervene in cases brought by others.

Conduct inquiries leading to recommendations of potentially wide application.

Provide information, advice, guidance, education and training, and undertake research.

Issue Codes of Practice (subject to the approval of the Secretary of State).

26.The most widely known of the EHRC’s enforcement powers are its ability to fund or otherwise support discrimination cases brought by individuals or other organisations, and to bring a judicial review in its own name to challenge the decision of a public authority. These are activities that others, such as trade unions or charities can also undertake. The Commission also has enforcement powers that only it can exercise, including conducting investigations into suspected breaches of the Equality Act that can result in notices requiring compliance which are enforceable in the court and could result in an unlimited fine. The Commission can also apply to the Court for an injunction to prevent a breach of the Act, which can also lead to an unlimited fine if it is breached.

The big bad wolf?

27.Given the powers it has, many witnesses wanted the EHRC to be more proactive in taking enforcement action25 and David Isaac when he was appointed Chair of the EHRC in 2016 made a commitment that the Commission would become a “more muscular regulator”26. In 2017 David Isaac told the Committee:

I am very keen that the Commission uses its investigatory and legal powers much more than it has done in the past, because these are powers that uniquely sit with the Commission and we must use them27.

28.It is, however, clear from the evidence we have heard that many experts, organisations and individuals do not believe this is happening. While feeling that things had improved, Sam Smethers of the Fawcett Society argued that the Commission could “be more on the front foot, and not wait for someone to say, “Are you going to enforce this?””.28 Doug Paulley, an individual who has brought a number of disability discrimination cases, including with support from the EHRC, told us that he had found the Disability Rights Commission “much more proactive and easy to interact with”:

To be honest, it felt like they lost their mojo completely when they joined the other equality bodies and became the Equality and Human Rights Commission.29

29.Jeanine Blamires, who had brought a successful disability discrimination claim against the Local Government Ombudsman as a Litigant in Person, spoke for many when she told us that the absence of proactive enforcement by the Commission meant that “organisations are not fearful of breaching the Equality Act and [ … ] behave with impunity.30 We asked a range of our other witnesses if they thought organisations and business worried about the EHRC taking enforcement action against them. Not one thought so.31

30.For many, this was because the Commission lacked “organisational confidence”32 to act. Karon Monaghan QC spoke for many when she told us that “they need money, but they also need to have a culture of, “We’re going to go in there and we’re going to show them””33 Catherine Rayner agreed, suggesting that “even with the funding that they have, they could [ … ] do more with it on the enforcement side.”34 She also wanted to see the Commission “shouting” a lot more about what it does on enforcement.35

31.Barbara Cohen, a discrimination law expert and former legal officer at the Commission for Racial Equality was stronger in her criticism. She told us that the EHRC “does not advertise itself as an enforcer”. Instead it “funds interesting research” or “will have one announcement and nothing more will happen.” She wanted to see the Commission “just beginning to shout, “We are the big bad wolf and we are coming for you.””36

The Commission’s role in the new enforcement approach

32.Razia Karim and Barbara Cohen—both past legal officers for the Commission for Racial Equality who made a joint submission to the inquiry—shared with us EHRC enforcement data obtained by a Freedom of Information request.37 The table (below) covers the period from when the Commission was created until March 2018.

33.This table shows a significant decrease in enforcement activity over time, although with a notable increase in 2017/18. It also shows a tendency to favour use of powers to intervene in existing cases over other powers, particularly those enabling the Commission to initiate action without an identifiable complainant. Some of these ‘unique’ powers have never been used, and others used very infrequently. Since 09/10 the Commission has issued no compliance notices—which could be enforced in the court with a potentially unlimited fine if they were not acted on. It has applied for injunctions to prevent unlawful discrimination in seven instances, none of which we could find information about on their website. Only one formal investigation had been initiated since 09/10 and there had been no assessments of compliance with the single public sector equality duty brought in by the Equality Act 2010.

34.The result of this is that the burden of enforcement has been borne by individuals, even where the EHRC has become involved. Barbara Cohen and Razia Karim explain why this is problematic:

it is wrong to place the main burden of equality law enforcement on individual litigants—for whom the discrimination or harassment they have experienced may have been extremely traumatic and demoralising as well as leaving them unemployed or homeless or deprived of essential services.38

They spoke for many when they argued that it was “too much to expect the individual to bring about a change in a workplace, a police force or a government department or a particular sector”.39

35.This is not to say that support from the EHRC had not been important for those individuals that had received it. Doug Paulley had been supported to bring his most significant case, Firstgroup plc v Paulley, to the Supreme Court with EHRC funding.40 Nick Webster argued that “when you work with the EHRC it is incredibly effective.” He gave the example of one of his recent cases that they had supported “which did change the legal landscape [ … ] and could benefit potentially thousands of other people.” He was clear that:

Had the EHRC not been involved and taken a significant risk in using its limited budget, the case would not have happened and we would be in a worse place for it.41

36.Nor would we argue that the Commission’s enforcement work has not had any impact. The Equality and Diversity Forum highlighted a series of important cases that the Equality and Human Rights Commission had been involved with, telling us that it believed these showed that “the Commission does use its powers effectively”.42

37.Our concern is not that such individual action is not positive, it is that this piece by piece approach is insufficient in the face of the systemic and routine discrimination, a concern reflected in the tailored review recommendation “that the EHRC [ … ] reset its vision to focus on use of its unique powers as an enforcer and regulator of equality law.”43

Developing enforcement action: A critical mass

38.We heard strong support for the Commission developing a critical mass of casework—of a type and scale that would drive real change. Niall Crowley, an international expert on national equality bodies, told us how this question was being dealt with internationally:

One of the issues—and it is an issue that is not unique to here—is about strategic litigation and the search for cases that set a legal precedent or change court procedures. When it comes to the type of institutional change you are talking about, that is not sufficient. That is too narrow an understanding of strategic litigation.44

39.Nick Webster agreed that one-off cases rarely changed behaviours. This, he argued was because they could be settled, and the employer carry on as before “whereas if [ … ] there are 10 maternity leave claims being pursued against the same employer and that then results in the EHRC being able to do something instantly—then they may decide, “We need to look at how we deal with people that are on maternity leave””.45

40.The strategic litigation approach advocated for in recent standards issued by the Council of Europe had at its centre supporting a critical mass of casework.46 Niall Crowley argued that:

The critical mass of cases [ … ] does generate a public debate, does generate stakeholder engagement and does generate a duty bearer engagement that is quite different [ … ] That can lead to that type of cultural change, whether it is a culture of compliance or a more ambitious culture of equality and non-discrimination.47

This was not only about building a critical mass of discrimination cases brought by individuals. Nick Webster suggested that EHRC enforcement powers could also be used, especially if they were able to act more quickly, “imposing fines and not having to go through the process it has to go through.”48 It was unclear if a change in the law was needed to do this, a question that we return to below.

41.When we asked David Isaac, the Chair of the EHRC, why their volume of case work seemed so low, he suggested that this was due to a focus on “pre-enforcement [ … ] where we write letters and threaten to take action”. He explained that:

That is something historically that the commission hasn’t really talked about, but we are doing a lot more of that. Sometimes that means that organisations or individuals put their hands up straight away, and sometimes we enter into formal agreement. We don’t necessarily need to use the full range of our legal powers to drive change and to get compliance.49

42.The Commission’s Legal Director, Clare Collier, told us that in the previous year around 350 people had come to them and in most of those there had been “some kind of contact” and that most cases reached agreement “very quickly and easily” avoiding the need to start what could be a resource-intensive investigation.50 These resolutions are, of course, important to those individuals, but 350 cases does not come close to addressing the scale of the problem. The Commission’s own research estimates that 50, 000 women a year feel they have no choice but to leave their jobs when pregnant,51 and that only accounts for one form of discrimination, affecting one of the nine protected characteristics the Commission is responsible for. It is clear the EHRC’s strategic approach is not proportionate to the scale of the problem, even more so when we consider that the vast majority of those 350 cases will have received little or no publicity—a point we address below.

The use of the EHRC’s ‘unique’ enforcement powers

43.As outlined above, the EHRC has a set of enforcement powers that only it can exercise. The most commonly discussed is its power to conduct formal investigations, but it also has powers to apply to the court for an injunction and to enter into formal, legally binding, agreements on actions that a private or public body will take. Barbara Cohen explained that “what is really special about the EHRC” is that:

We do not need to have 25 people suffering the same experience because once you have had a number, the Commission could apply for an injunction. Once you have one employer doing it more than once, you can see that there is a possibility or a likelihood this employer will discriminate again; you can apply for an injunction and publicise it, so that the world knows that if somebody is continuing to discriminate, they will have more sanctions imposed.52

The Commission’s powers can also be used where a punitive approach isn’t necessary: if the issue is a lack of understanding the Commission can sign a binding agreement, with the possibility of sanctions if it is not implemented.

44.Barbara Cohen was adamant that the Commission should be making much greater use of these powers:

I cannot stress more strongly how useful that can be in terms of changing practice and changing policy within an organisation and within a sector. It is not necessarily unduly burdensome. It is not necessarily expensive in terms of resources. You can do it in a particularly targeted way.53

Box 2: The power of formal investigation: a case study

Barbara Cohen gave an example of when the Commission for Racial Equality had used formal investigation powers “absolutely identical” to those now held by the Equality and Human Rights Commission to achieve impact.

“The Commission for Racial Equality—the CRE—had been concerned for a long time about race discrimination in the armed forces but there had not been any cases. Finally there was a case. A black solider who was in one regiment wanted to transfer into the Household Cavalry. The Household Cavalry rejected him. There were no black soldiers in the Household Cavalry. One of their arguments was that it would be okay if there were two because they could talk to each other. Anyway, the case went to the employment tribunal and the case was upheld completely.

In order to carry out an investigation you need to have some suspicion that the organisation will have committed an unlawful act. We had a finding of the employment tribunal. On the back of that case, the CRE began an investigation into the Household Cavalry [ … ]. The investigation was very simple. It did not cost a lot and did not take a lot of time, because it simply meant that CRE staff interviewed all of the people up the chain of command who had any role in making the decision not to allow this black soldier to join.

Very quickly we were able to make a finding that discrimination had occurred, which enabled us then to introduce a sanction [ … ] Then we wrote to the Ministry of Defence and said that we were about to issue a non-discrimination notice against the Household Cavalry, a very old and distinguished part of the Army, which would be very bad for the reputation of the Army. The Ministry of Defence paused and the CRE said, “Well, alternatively we can enter into an agreement with you, not just for the Household Cavalry and not just for the Army, but for the Army, the Navy and the Royal Air Force [ … ]. We are going to give you some requirements to carry out. We are going to meet with you very frequently to see what happens.”

The MoD, concerned about reputation [ … ] said, “Okay, we will do the deal. On the basis that you do not enter the non-discrimination notice, we will enter into this agreement with you,” and they did. [ … ]

Change began to happen. [ … ] and they went from no black soldiers to about 10 very quickly. That did not happen in the other services. They looked to see what happened. When people made inquiries, why did they not apply? If they made applications, what happened with applications? [ … ] We went through the whole thing.

At the end of the three years, the MoD said, “There we are. Done.” We said, “Actually, you have not made enough progress,” so we could still serve the non-discrimination notice. We stuck with this agreement for another two years. [ … ] We had meetings with General Guthrie about the war in Iraq because it went all the way up to the top of the chain of command at the armed forces. [ … ] That was on the back of one case.

Source: Q162

45.We do not understand why, over a decade since it came into being, the Equality and Human Rights Commission does not have a similar example of having initiated enforcement action using those powers specific to it. When we asked Barbara Cohen why this was she replied “Pass. I do not know.”54

‘Shouting’ about enforcement work

46.As we highlighted above, many witnesses were concerned that the Commission did not ‘shout’ about its enforcement work.55 It publishes information on a selection of enforcement action on its website but does not routinely publish data on the numbers and outcomes of enforcement actions that it takes. Two of our witnesses had to resort to requests under the Freedom of Information legislation to access this data.56

47.This lack of publicity was a problem for some, including those who felt that there was good enforcement work being done by the EHRC. Sam Smethers told us that:

Sometimes they are slightly undershooting in telling the world about the enforcement work they are doing and how they can use that dissemination to shape the behaviour of others.57

48.This did not appear to be a new problem: Mike Smith, a former Disability Commissioner, reflected on his experience of a significant case that the EHRC had supported and won:

What was unfortunate was that the comms machinery did not then kick in and work out how to capitalise on that by persuading a larger number of organisations that there were cost and financial consequences. 58

49.Communication was an essential part of the ‘critical mass’ approach advocated by Niall Crowley. This required a “very particular legal strategy”, linked to a communication strategy “about motivating change, rather than instilling fear and anxiety.”59 Litigation needed to be put “centre stage” with a link to powers of investigation, the organisation needed to be accessible so that people could report discrimination and it needed to show people that change is possible if they do so. Formal engagement with civil society was also important. Communication was crucial, specifically:

communication as a tool for change; communication that can build a culture of rights where people are supportive of people who take a stand on discrimination. It is about the culture of compliance [ … ] in terms of employers and service providers, and a culture within communities experiencing discrimination that change is possible.60

50.Clare Collier suggested that the Commission was trying to improve the way it publicised its work. Speaking about the ‘pre-enforcement’ work that the Commission does, she told us that:

what we are more often trying to do differently with those kinds of cases is to publicise them. In the past, there has been a tendency for that to happen behind closed doors and for us not to talk about it [ … ] It was between us and them, a little bit. Now we are saying that we would like to talk about it so that other employers or service providers are aware that that is something that has happened and that we are drawing it to everyone’s attention.61

51.Individuals are facing discrimination because employers and service providers are not afraid to discriminate, knowing that they are unlikely to be held to account. A critical mass of cases is needed to build a culture where compliance with the Equality Act 2010 is the norm. This requires the changes to the Courts and Tribunals system that we outline in Chapter 8, but also significantly greater action by the Equality and Human Rights Commission.

52.The Equality and Human Rights Commission should significantly increase the volume, transparency and publicity of its enforcement work by making much greater use of its unique enforcement powers, publicising that work and reducing its reliance on individual complainants.

53.Publicising the enforcement action that you are taking and doing so in a way that not only enables compliance but also acts as a deterrent, is a crucial foundation to the work of any effective enforcement body. If service providers, employers and other organisations do not see that the Equality Act is being robustly enforced then a key driver for compliance is missing. Likewise, if those whose rights are not being upheld do not see the EHRC as an active enforcer then they will not come forward with the intelligence the Commission needs to take such action.

54.We recommend that the EHRC publish data on its enforcement activity, including both formal and informal compliance work. This should include summaries of the facts of cases, along with information on the outcomes in a way that can act as case studies on what compliance looks like and act as a deterrent to discrimination.

Why has the Commission not acted more robustly?

55.We heard a number of explanations as to why the Commission has not used its enforcement powers more robustly, most frequently access to intelligence particularly changes to the telephone helpline, the cumbersome nature of some of its powers and significant reductions in financial resources.

Access to intelligence

56.If the Commission is to become more proactive it needs significantly to improve its ability to identify and set priorities.62 This requires access to intelligence on where discrimination is happening and who it is happening to. Nick Webster and Niall Crowley were both concerned that the EHRC may not have access to this information because it no longer ran the public helpline,63 now known as the Equality Advisory Support Service and currently run by G4S under a contract managed by the Government Equalities Office. This change was also criticised by Sam Smethers of the Fawcett Society, who told us that when she was at the Equal Opportunities Commission, one of the predecessor bodies to the EHRC, the helpline was “a great source of connecting up lived experience of women on the ground [ … ] and the policy work, campaigning work and legal enforcement work we did.” She viewed the absence of the helpline as “a weakness in its overall architecture.”64 Mike Smith, a former Disability Commissioner at the EHRC reflected on his experience when the helpline was run in-house:

I remember getting reports on advice line cases and we said, “Did you think about going back to them and talking to the lawyer again about this element of the case?” because they might pursue that, and that would then feed the generation of a potentially good case. By having the practical conversations that happened within one organisation between different offices around the coffee machine, in the staff meeting or whatever, you ended up with a different kind of dialogue where there were 360-degree conversations around the issues that were arising, with corporate responses and how they might link to the use of strategic powers and so on.65

57.The Commission has argued for management of the helpline to be returned to it, because of its importance as a source of intelligence allowing it to “take targeted action to support more people to resolve complaints, as well as to challenge systemic discrimination.”66

58.Despite such concerns, it does appear that intelligence is being passed to the EHRC. Alex Hayes, who manages the helpline for G4S, told us that as well as proactively sending information they “give the EHRC literally anything they ask for.” There were weekly calls with EHRC lawyers to discuss cases and “hotspots that have come from the week” and any other information was sent as well as “all the high-level numbers”. Ms Hayes acknowledged concerns about sharing of information but argued that “speaking to my teams and how they are working with the EHRC, I think it has got better”. She explained that:

How it used to work in the past was that we would speak to them about what was strategic and we would send them those cases. Now we just kind of send them everything so they can decide what is strategic, systemic or what they need information on.67

59.Access to intelligence was considered by the recent tailored review of the EHRC. It examined the call from the Commission and others for the helpline to be brought back in house, but also considered the wider range of methods that the EHRC has for gathering intelligence and engaging with stakeholders. It concluded that:

The helpline may not work to EHRC’s satisfaction in terms of advice provision or intelligence gathering but it is only one component of a relatively weak system for identifying where the EHRC should intervene, especially in England.68

60.The review did not see the helpline as the long-term solution to advice provision and evidence gathering. Rather it recommended that the EHRC “reset its approach to intelligence gathering capability to ensure it has genuine intelligence from the front line” and work with the GEO to “plan a broader user-focused, multi-channel, approach to advice provision” of which the helpline could be one part.69 Our scrutiny of the EHRC suggests that its current view of what constitutes ‘intelligence’ is far too narrow: as MPs we are frequently made aware of problems through social media, letters from constituents, local and national media, debates in the House of Commons Chamber and the reports of other select committees. We are at a loss as to why the EHRC cannot use a similarly wide range of information sources.

61.While noting the number of witnesses who emphasised the importance of the helpline, we are not convinced that that the Commission is not able to use it to access intelligence and we agree with the tailored review that this is one part of a much wider challenge for the EHRC—one that needs to be addressed through its broader strategy of engagement and intelligence gathering, rather than a narrowly focussed telephone helpline.

Cumbersome procedures

62.Another concern was the amount of time that using the Commission’s specific enforcement powers could take. Rebecca Hilsenrath admitted that in the past they would only be “doing either an inquiry or an investigation at any one time” and that those would normally take “around [ … ] two or three years”. She contrasted this with their present activity, where they were running “two concurrent investigations and three inquiries” most of which they expected to be concluded by the end of the year.70

63.We asked the Commission about two quite different areas that were at that time the subject of enforcement action: unequal pay at the BBC and organisations that failed to publish their gender pay gap information on time. Both involved the use of the Commission’s power of formal investigation. The action against the BBC has taken considerable time, as can be seen in the box below setting out key activity in the two years since the first significant evidence emerged in the public domain.

Box 3: EHRC formal investigation of equal pay at the BBC: a timeline

2017

July

BBC publishes pay data for its highest earners. Concerns raised in the media and in Parliament about equal pay at the corporation.

2018

January

BBC China Editor, Carrie Gracie, resigns over unequal pay.

Reports in the press that the Commission intends to write to the BBC regarding reports of alleged pay discrimination; further debate in Parliament.

February

Chair of Women and Equalities Committee writes to the EHRC asking for information on enforcement plans and the deadline given to the BBC to reply to its January letter.

March

BBC journalists give evidence to the Digital, Culture, Media and Sport Select Committee detailing evidence of unequal pay at the BBC.

October

The Digital, Culture, Media and Sport Select Committee publish a report recommending action by the BBC to tackle unequal pay in the Corporation.

2019

January

The Digital, Culture, Media and Sport Select Committee publish a second report, finding that the BBC has failed to acknowledge that a pay discrimination problem exists within the Corporation.

March

The EHRC announce it is launching a formal investigation into unequal pay at the BBC 18 months after the BBC originally published data that indicated there could be equal pay issues in the organisation.

Media reports that a BBC manager has turned down a promotion after finding out that she had been offered £12,000 less than a man doing the same job.

June

The EHRC confirms that it can receive evidence from individuals who have signed a non-disclosure agreement.

64.We asked the EHRC why it had taken over a year from their first interest in the area and nearly two years since evidence was in the public domain to finally decide to use their formal enforcement powers against the BBC. The response we received reflected the ‘timidity’ and ‘lack of organisational confidence’ referred to previously by other witnesses and short comings in its own policies. This can be seen in the way the BBC succeeded in delaying the EHRCs investigation for 18 months, despite significant evidence already being in the public domain. Clare Collier told us:

we were in protracted and detailed discussions with both the complainants and the BBC in relation to this matter. We progressed quite a long way with the BBC [ … ] it was in May when we reached the point where we said, “Actually, this has to be a statutory investigation, because we need to use our power to compel evidence.”71

65.In contrast, the Commission appeared to find it more straight forward to act reasonably quickly on failures to publish gender pay gap information: the deadline was in April and by June the Commission had launched a number of formal investigations. Rebecca Hilsenrath explained the difference as being primarily due to the ease of understanding “whether somebody is in breach of the law”. For the gender pay gap regulations this was a simple binary issue “you either publish or you do not publish”, which was why they had been able to act in a shorter timescale.72 It appears, then, that the key factor behind the slow response to unequal pay at the BBC and the quicker response to failures to publish gender pay gap information came down to the Commission feeling that it had sufficient evidence of unlawful activity.

66.It is true that the Commission can only launch a formal investigation if it reaches the threshold of information to show that “it suspects that the person concerned may have committed an unlawful act.”73 David Isaac argued that this meant the Commission was “completely dependent upon the good will of the individuals who are being threatened with the investigation” to obtain the evidence to “establish that the threshold has been met.”74 He also expressed concern that the Commission not find itself acting outside of its powers, with the subsequent risk of being judicially reviewed.75 Mike Smith recalled similar concerns when he was a Commissioner at the EHRC. These had sometimes led to an “expensive and drawn-out process to get to the stage where you were sure that you were using those powers appropriately” and fears of the expense of “big organisations countersuing or claiming that we were not using our powers correctly”.76

67.Rebecca Hilsenrath’s solution for the delays in bringing enforcement action was for the EHRC to have more powers, arguing that “if all we had to do was turn around and say, “You have not published—here’s a fine,”” when someone failed to publish the pay gap regulations they could act much more quickly than under the rules on formal investigations.77 Other witnesses did support the Commission’s request for additional powers. Mike Smith thought they were “pretty sensible suggestions” and could not see a “logical reason” why they had not been agreed to through the tailored review78—which concluded that the Commission should address “issues of effectiveness and impact” before resorting to extending its powers.79

68.The Committee is deeply concerned that the EHRC found it difficult to challenge an organisation like the BBC in a reasonable amount of time given the scale of the problem, the publicly available data and the number of individuals affected. We are not convinced by the Commission’s argument that additional powers are the way to enable swifter action, rather than a change to its own policies. The tailored review was not persuaded that the problem lies with the Commission’s legal powers, and nor are we.

69.We recognise that the law sets out a threshold to be met before launching enforcement action, but it appears to us that the EHRC is applying too high a standard of proof for that threshold. Rebecca Hilsenrath referred to evidence of “whether somebody is in breach of the law”80, when the legislation only refers to a ‘suspicion’ that a person ‘may’ be in breach—albeit a reasonable one—and David Isaac felt there was a need to access information held by the suspected discriminator81 when extensive information on unequal pay at the BBC was already available in the public domain.82

70.The Commission has acknowledged that its own policies have hindered action in the past by deciding “that to use a statutory power you had to be at the last resort.”83 This is a policy of the organisation and is not based on the legislation that set out the EHRC’s powers. While the Regulators Code requires proportionality, it in no way rules out swift, public, enforcement action and the Equality Act 2006 already sets out processes to ensure fairness to those being investigated.84 The Commission is now producing a new enforcement policy intended to enable action to be taken “when we think it is appropriate to do so and when the threshold is met” on the basis of factors such as “whether we are going to achieve impact, and whether the issue is sufficiently serious and those kinds of things.”85

71.We share the view of the tailored review that the EHRC should address the shortcomings in its own policies and the concerns with how it uses its existing powers before Parliament considers granting new powers. While we have sympathy with the desire to act more quickly by, for example, issuing fines, we do not understand why the Commission cannot already do so using its existing powers which include the ability ask the county court to issue a potentially unlimited fine for failure to comply with enforcement notices under the Equality Act 2006.

72.We note the concerns about how the Commission can gather the information that it needs to reach the threshold of evidence to suspect a breach of the Act, and so be able to launch a formal investigation. It should have been possible for the EHRC to reach the threshold for suspecting an unlawful act in a case such as that of unequal pay at the BBC—where data had been released by the BBC and media reports, select committee inquiries and evidence from those affected all provided evidence of discrimination. If this is not possible under the current law, then that law must be changed.

73.We recommend that the EHRC assesses its enforcement policies and practices to ensure that the threshold for suspecting an unlawful act may have taken place is no higher than required by the law. It should publicly set out the type and level of evidence that will allow it to meet that threshold. If, after changing its policies, the Commission still struggles to meet that evidence threshold then the law must be changed accordingly.

Resourcing

74.In terms of the volume of enforcement action, the EHRC argued that:

the Commission was not established, and has never been resourced, to support large numbers of individual discrimination cases or high-volume enforcement activity.86

75.The Government Equalities Office similarly told us that the Commission “was never envisaged as a classic inspectorate/regulator”. Nor was it expected to provide legal assistance to “anything beyond a small minority of those individuals seeking to bring discrimination claims”. They argued that:

If the EHRC was significantly to expand its enforcement and/or the number of individual cases it becomes involved in, clear choices would need to be made about its purpose as an organization and the extent to which it should continue to carry out other functions.87

76.The EHRC has faced significant budget and staffing reductions in recent years. It now employs 206 staff, down from 530 in 2010. Its budget has been reduced from a peak of £70.3 million in 2007 to £18.55 million in 2019, following successive spending reviews. Some of this reduction is accounted for by changes to the Commission’s functions estimated to account for £10.2 million of the Commission’s budget (for example the outsourcing of the helpline). Even leaving aside this reduction, the EHRC has had its budget reduced by nearly £42 million since 2007. The EHRC is now arguing for an increase of 30% in its current budget. 88

77.The tailored review of the EHRC considered the question of the reduction in funding for the Commission. While acknowledging the reductions in both budget and staffing levels, the review also highlights that the EHRC has had “consistent underspends” including over £500,000 in 2017/18. The EHRC told the review that it had put in place “a more robust business planning and budget monitoring framework” to address this problem.89 Despite having done so, the March 2019 EHRC Board minutes, the most recent available, forecasted an underspend of £689,000 for 2018/19.90

78.Significant evidence given to this inquiry strongly suggests that the effectiveness of the EHRC is not solely linked to funding levels. Furthermore, if there was more ‘organisational confidence’ and existing powers were being used effectively there would be a far stronger case to ask Government to consider future funding levels for the organisation.

79.The tailored review of the EHRC did not come to a conclusion on whether or not its budget was adequate, instead emphasising the need for a clear purpose and set of priorities as the starting point to determine the right level of resources. The review recommended that, once these had been set, the GEO and the EHRC work together to set out the case for a new budget settlement. We agree that this is a sensible approach, especially given the pivotal organisation and policy issues contained within this report and as well as the consistent underspends outlined above.

Resourcing for ‘risky’ strategic litigation

80.One area where we do think that the Government should consider the resourcing of the EHRC, however, is in respect of what witnesses described as ‘risky’ strategic litigation. Even with a move towards greater use of its own enforcement powers and a focus of resources on building a critical mass of cases, the EHRC will still be uniquely placed to bring those strategic cases that develop the law and bring legal clarity. Such cases are inherently risky, as Richard Miller, Head of Justice at the Law Society explained:

One of the real challenges with test cases [ … ] is the fact that even an organisation like the EHRC has the risk of an adverse costs order. Therefore, at any one time they could have a potential liability that they have to account for, as well as the ongoing actual costs of running that case.91

81.We do not believe the burden of that risk should rest with individuals—as it does when the Commission intervenes in but does not fund such cases. Mr Miller’s solution was a simple one: he suggested that if the Government were to provide an indemnity for any adverse costs in such cases, “that might enable the organisation to do more with the resources it has.”92

82.This would be a fairly simple measure for the Government to put in place and would enable the EHRC to shift its focus, and resources, to the kind of routine strategic enforcement action that we envisage in this report without losing its ability to bring strategic cases in the more traditional sense where they are necessary.

83.We recommend that the Government launch a consultation with a view to introducing a scheme to indemnify the EHRC against the risk of high costs for strategically important cases.

Is the Equality and Human Rights Commission fit for purpose?

84.The above discussion, and the extent of the criticism of the EHRC, raises one important question: is the Commission itself fit to deliver the kind of enforcement strategy that can tackle the systemic and routine discrimination that too many people experience as a simple fact of life? The Commission has itself acknowledged that in a system of enforcement based on individual litigation it “can support and supplement this system, but it cannot replace it.”93

85.It is safe to say that, in terms of effectiveness, the Commission has a chequered history. Mike Smith, a former commissioner told us that when he joined in 2009 “the organisation was still struggling with the combination of three legacy commissions with three quite different cultures” and that:

I do not think it was incredibly well organised and did not have a well-functioning comms department and had not worked out how to link together its different internal organisations.94

86.Since then it has been through a number of restructures, most recently in 2017 when the Commission implemented its new ‘Target Operating Model’. It has recently published a new Strategic Plan for the period 2019–2022 and is consulting on a new litigation and enforcement policy. The question remains of whether these changes on paper will lead to changes in practice.

87.David Isaac told us that the “development and finalisation” of the Commission’s new strategic plan “has given us the opportunity to make enforcement centre stage”. He told us that they had “a new legal enforcement policy” and “a new team that is focused on legal enforcement, with dedicated resources.”95 The Government Equalities Office supported this change in direction, suggesting that “identification of areas of employment or service provision where discrimination or harassment is widespread albeit perhaps low-level is a more effective approach”.96

88.These changes are too recent for many of our witnesses to comment on, but some had seen the draft strategic plan. Barbara Cohen was concerned that the Commission still seemed to “shy away from using its unique enforcement powers” and that it seemed to reflect a preference “to do the things you know you already do well” with the risk of being “reluctant to take on the things you have not done very much of and think might be difficult.” She was particularly concerned that the draft was unclear on how exactly it intended to deliver general commitments on ‘compliance’ and which enforcement powers it expected to use.97

89.Sam Smethers was more optimistic. She felt that they were “getting their act together a bit more”, and saw the new strategic plan as an opportunity to get that strategy “really right”.98 The Equality and Diversity Forum also saw the way that the Commission had consulted on their strategic plan as positive, enabling them to engage with a wide range of stakeholders in setting the priorities it contained.99

90.While, as highlighted above, the Commission does not publish numerical data on its enforcement work it does appear that it may be increasing enforcement activity. As of 16 July 2019 it was engaged in: two large scale formal investigations; enforcement action against a care home for using pre-employment health questionnaires and five employers for failing to publish their gender pay gap information; and had threatened around 40 more such employers with enforcement action. It has also spoken more publicly about this action.

91.Another matter arose towards the end of our inquiry: we questioned the Commission on how it handles disputes with its own staff, especially when they concern discrimination. While the Chief Executive initially stated that there had been no such grievances,100 the Chair, David Isaac, later acknowledged that discrimination issues had featured in grievances emerging during its latest restructure and resulting redundancy situations.101 Mr Isaac insisted, however, that they had “not done anything to make it difficult for those individuals to assert their claims.”102

92.We were subsequently contacted by former staff of the Commission who were among those affected. One individual submitted evidence to the inquiry in which she argued strongly that the Commission had not made it easy for her or any of the others affected to bring their claims and had not treated them well during the process. She described staff feeling like they “were being treated like common criminals” and disadvantaged in access to alternative employment by administrative decisions on payment in lieu of notice. She told us that the EHRC had made public statements about the reasons for their redundancy that “had a serious and significant impact on our ability to find alternative employment”, explaining that:

I had worked for twenty years in equality and human rights yet the Chair of the EHRC was publicly stating that I didn’t have the requisite skills to work in the sector. [ … ] the actions of the EHRC were seemed designed to ensure I would not secure employment in the future.103

Initially financially supported to bring an employment tribunal claim by her trade union and then her insurance company, a statement by the EHRC that it would seek costs against her “irrespective of whether or not [Ms Kelly] succeeds in her claim” led to this support being withdrawn and advice that she settle. She explained that:

an insurance company has no interest in exploiting the potential of the Act to improve society and eliminate discrimination. They do not care about the public interest in examining the conduct of officials employed by our national equality and human rights regulator. So I never got a public hearing or a chance to restore my reputation.104

93.We gave the Commission the opportunity to respond to this evidence, and Rebecca Hilsenrath wrote to us on 11 July 2019 apologising for inadvertently giving incorrect information about grievances. She reiterated David Isaac’s view that the cases discussed in the evidence session had mainly arisen from the Commission’s most recent re-organisation, telling us that “seven employees who were made redundant took the decision to make employment tribunal claims” which involved claims of discrimination or trade union victimisation, but that the Commission was “satisfied that the processes we followed were fair, robust and transparent.”105 Her basis for this belief appeared to be that they had “worked closely with colleagues from HM Treasury to ensure that we complied with all procedures”. The Treasury had agreed with the decision to settle, which was made to avoid “the cost and disruption of defending seven claims”.106

94.While we cannot comment on whether or not the claims made against the Commission would have been successful, we are deeply concerned by the way in which the Commission has handled the dispute. The Commission may believe that the settlements they made were agreed consensually, but the threat of being pursued for costs left the staff concerned feeling pressured to settle for financial compensation, when equally important was a remedy for what they felt to be unfair damage to their professional reputations. We explain in Chapter 8 how problematic such pressure is in the context of discrimination claims, where financial compensation is frequently an inadequate remedy.

95.The EHRC is not simply another non-departmental public body. It is one of the United Kingdom’s national equality bodies and a national human rights institution. It should not be following the minimum required, it should be setting the standard for others to follow. That this does not appear to have been the case to date is disappointing.

96.While we understand that the EHRC intends to make significant changes in direction and agree that changes such as establishing a new dedicated legal enforcement team have the potential to support this, the Commission has not yet demonstrated the ability to act effectively. It was ignored in Sir David Metcalf’s Labour Market Enforcement Strategy and received only small mention in the Government’s Good Work Plan. It was found wanting by this Committee in action on older workers, sexual harassment, inequalities facing Gypsy, Roma and Traveller communities, maternity discrimination and inequalities in the built environment. The Commission has acted on some of these areas, but it should not have needed prompting by a Parliamentary Committee before it did so and the Commission continues to rely on affected individuals seeking it out and convincing it to act, instead of leading work to tackle endemic and structural inequalities.

97.The EHRC must take further action to address the problems identified in the tailored review conducted in 2018. We see little evidence of the kind of clarity and focus that the tailored review recommended. Despite some progress in setting priorities and numerous restructures, the Commission still fails to have the kind of focus on impact and influence that good management should be delivering.


23 Equality Act 2006. The Equality and Human Rights Commission is also one of the United Kingdom’s National Human Rights Institutions and has both duties and powers in respect of human rights that we do not consider in this report as they are outside the inquiry’s terms of reference.

24 The Commission for Racial Equality, the Equal Opportunities Commission (which dealt with gender equality) and the Disability Rights Commission.

25 Q35(Sam Smethers); Equality Network (EEA0121); Mind (EEA0182); Mrs Jeanine Blamires (EEA0104); RNIB (EEA0199); Q242 (Doug Paulley); Nathalie Abildgaard (EEA0270); Black South West Network (EEA0267); Yvonne Hall (EEA0203); Ms Natalya Dell (EEA0194); Salford Welfare Rights Service (EEA0161); Spinal Injuries Association (EEA0149)

26 Equality and Human Rights Commission, ‘Prioritising our legal work’, accessed 18 July 2019

27 Oral evidence taken on 18 January 2017, HC (2016–17) 932, Q6 [David Isaac]

30 Mrs Jeanine Blamires (EEA0104)

31 Q136 (Nick Whittingham; Richard Miller; Christine McAnea; Alex Hayes

32 Q41 (Sam Smethers)

34 Q4

37 Barbara Cohen and Razia Karim (EEA0265)

38 Barbara Cohen and Razia Karim (EEA0265)

39 Barbara Cohen and Razia Karim (EEA0265). See also: Guide Dogs for the Blind Association (EEA0258); Mind (EEA0182)The Access Association (EEA0044); Nathalie Abildgaard (EEA0270)

40 FirstGroup PLC v Paulley [2017] UKSC 4

42 Equality and Diversity Forum (EEA0177). See also: Dr Jenny Morris (EEA0049); Ms Louise Whitfield (EEA0157)

55 Q50 (Catherine Rayner);Q147 (Barbara Cohen)

56 Barbara Cohen and Razia Karim (EEA0265)

66 Equality and Human Rights Commission (EEA0254)

73 Equality Act 2006, Section 20

82 See above, box 3

84 Q159 (Barbara Cohen)

86 Equality and Human Rights Commission (EEA0254)

87 Government Equalities Office (EEA0259)

90 Equality and Human Rights Commission, Minutes of the 82nd meeting of the Board of the EHRC (March 2019), p3

93 Equality and Human Rights Commission (EEA0254)

96 Government Equalities Office (EEA0259)

99 Equality and Diversity Forum (EEA0177)

100 Qq579–583 (Rebecca Hilsenrath)

102 Q 588

103 Finola Kelly (EEA0272)

104 Finola Kelly (EEA0272)




Published: 30 July 2019