98.The Equality and Human Rights Commission is only one enforcement body that can act on protections in the Equality Act 2010. This chapter examines the strategic opportunity to reinforce the role of regulators, inspectors and ombudsmen to enforce anti-discrimination law alongside the EHRC, something that appears to be relatively under-utilised at present.
99.Discrimination happens in places that are already highly regulated, inspected and where those who operate within them are judged on their behaviour. Whilst this cuts across the full scope of the Equality Act, with enforcement bodies operating in employment, education, health, housing, transport and regulating both public and private service providers, the regulators’ treatment of how unlawful discrimination affects the standing of those regulated organisations and individuals appears to be patchy at best.
100.In this report we will use ‘enforcement bodies’ to refer to the full range of regulators, inspectorates and, which some witnesses refer to as ‘RIOs’. Classic examples, some of whom we heard evidence from, are Ofsted in education, the Care Quality Commission in health and social care, the Financial Ombudsman Service, the Health and Safety Executive, the Gangmasters and Labour Abuse Authority and, of course, the proposed new single labour market enforcement body. Others who perform similar functions as part of their remit are also included: for example the Department for Education delivers enforcement functions in education and HMRC enforces the statutory national living wage.
101.Each of these organisations are not only already bound by the non-discrimination provisions of the Equality Act, but also by the public sector equality duty in section 149 of the Act. Guidance from the Equality and Human Rights Commission states:
Regulators, inspectorates and ombudsmen [ … ] need to have due regard to the aims of the general equality duty in their functions. For example, this could mean inspectorates ensuring that their assessments of performance of public sector bodies include consideration of performance on equality.
102.The original Race Equality Duty was the first of the ‘public sector equality duties’ in Great Britain, the model of which was followed and built on in the later duties on gender and disability and ultimately the single public sector equality duty across all grounds contained in the Equality Act 2010. Barbara Cohen and Razia Karim were both legal officers at the Commission for Racial Equality at the time the race equality duty was being introduced and they told us that:
It was recognised that the CRE would never have the capacity to monitor compliance of the more than 25,000 public authorities in England, Scotland and Wales that were to be subject to this duty. In discussions with Home Office officials we were satisfied that the primary mechanism for enforcement should be exercised by those bodies already established to monitor performance of public authorities and to apply sanctions when performance was not at the required standard. We were also aware that from the perspective of public authorities their specialist regulators, with sector specific enforcement powers, carried far more clout than the CRE ever would.
103.That such a role is necessary was supported by many of our witnesses. Derby City Council felt that challenging discrimination should be the responsibility of local authorities “as with Health and Safety and licensing laws.”. The Runnymede Trust and Race on the Agenda wanted to see:
regulators or inspectorates (for example Ofcom or Ofsted) [ … ] do more to gather data on equality, to determine whether, e.g., schools are adequately complying with the law, or are directly or indirectly discriminating against ‘protected’ groups. The EHRC would then examine these reports to determine whether further monitoring or enforcement action is required.
104.The kind of role envisaged by Barbara Cohen and Razia Karim was also reflected in evidence from Karon Monaghan QC, who argued that “however much money you give [the EHRC], the reality is that they are not going to be able to scrutinise compliance by every single public authority in the country.” She wanted to see other enforcement bodies taking responsibility for ensuring compliance in their area. Dr David Barrett, a researcher who had looked specifically at the role of regulators, inspectorates and ombudsmen in enforcing the Equality Act, agreed that such a role would be particularly effective:
Regulators, inspectorates and ombudsmen are better equipped to monitor remedial action and be proactive, enforcing equality law before an individual has been harmed. In particular, by integrating equality law into their regulation/inspection frameworks, regulators and inspectorates can ensure organisations comply with their responsibilities under the Equality Act, an important additional avenue of enforcement. Furthermore, and potentially more significant in achieving widescale change, regulators and inspectorates can encourage regulated organisations (for example, through ratings or other incentives) to go further and take ownership and leadership of equality and exceed the formal legal requirements of the Equality Act.
105.Witnesses agreed that these enforcement bodies already have legal duties under the public sector equality duty, but suggested that there were varying levels of adherence to these duties in practice. Nick O’Brien, an honorary fellow at Liverpool University and former Director of Legal Services and Operations at the Disability Rights Commission told us that he “would be surprised” if regulators, inspectors and ombudsmen were not aware of their existing public sector equality duty, but that this was “probably at a fairly abstract level.” He suspected that the duty was not a priority for many. From his research into regulators, inspectorates and ombudsmen Dr Barrett concluded that:
Some organisations have taken great ownership of equality law and integrated it heavily into their work, whereas other organisations have not seen enforcing equality law as part of their core business (due to a lack of confidence and/or competing priorities).
106.The Financial Ombudsman Service, which deals with disputes between consumers and financial businesses, was one organisation that had taken such ownership. Annette Lovell, their Director of Engagement, explained that they would consider the requirements of the Equality Act when deciding what was “fair and reasonable”. This could be in response to a complaint of discrimination, but this wasn’t always necessary:
It is enough for someone to come to us and say that they have a problem with their financial services provider or that they think the way they have been treated is unfair. [ … ] It is our job to think about aspects like the Equality Act.
While they did not have general enforcement powers their decisions, once accepted by the complainant, are binding on the financial business concerned.
107.Nevertheless, our inquiries have found example after example of mainstream enforcement bodies failing to meet their duties in respect of the rights under the Equality Act 2010. Our inquiry into disability and the built environment found the Planning Inspectorate had been making decisions with insufficient regard to the needs of disabled people. We recommended that the Equality and Human Rights Commission take enforcement action and it emerged from their subsequent engagement with the Inspectorate that the training for Planning Inspectors was in breach of the PSED. This has now been rectified but it remains to be seen if this has resulted in the necessary changes in practice.
108.Similarly, our inquiry into sexual harassment in the workplace found “passivity and indifference of regulators in the face of widespread workplace sexual harassment.” We were astonished to find that the Health and Safety Executive did not see tackling or investigating sexual harassment as a part of its remit, despite having an explicit remit for work-related violence.
109.We invited Sir David Metcalf, the Government’s Director of Labour Market Enforcement and author of the Labour Market Enforcement Strategy whose work will form the foundation for the Government’s new single Labour Market Enforcement body, to give evidence on his approach to the Equality Act. He explained that he did not “know very much about” the Equality Act and was entirely unaware of the public sector equality duty, although he was now taking steps to remedy this. The very first requirement for compliance with the PSED is that a decision maker is aware of the duty, and the second is that it is fulfilled both before and during consideration of a particular policy with a “conscious approach and state of mind”. Yet Sir David Metcalf told us that he did not know what it was and that “Frankly, it is not something that has ever come up”.
110.The Government seems to have taken on board some of these concerns. Charles Ramsden, Deputy Director at the Government Equalities Office admitted that:
To be honest, I agree that the Committee’s current inquiry—you referred to the labour market enforcement side—has been a bit of an eye-opener in terms [ … ] of the very disparate understanding of equality issues across regulators, from possibly Ofsted at one end of the scale, to a number of other bodies towards the other end.
He referred to a cross-Government working group “that looks at PSED best practice and developments” and told us that the Government were “now thinking of involvement of regulators specifically, not just sector sponsor Departments” in that group.
111.Dr David Barrett, having noted “a great disparity in the performance of regulators, inspectorates and ombudsmen in relation to equality enforcement”, attributed this to the “implicit” nature of their obligations:
despite the significant potential of regulators, inspectorates and ombudsmen in enforcing equality, this enforcement role is not explicitly set out in statute. Instead the requirement for regulators, inspectorates and ombudsmen to enforce equality law is said to be implicitly based on these organisations being subject to the public sector equality duty. The implicit nature of this duty has thus been easy to evade.
112.Barbara Cohen and Razia Karim, reflecting on discussions with the Government when the original race equality duty was introduced, told us an explicit duty was not included because at that time it was clear that existing enforcement bodies would have an important role. They explained that Ofsted was expected to monitor and enforce the duty in schools and “similar roles would be carried out by the regulators of NHS bodies in England, Scotland and Wales” and that officials at the National Audit Office had “reassured [the CRE] that if the amended Race Relations Act imposed duties on government departments then it would automatically fall to the NAO to monitor their compliance and take appropriate steps where performance was inadequate.” They had therefore concluded that “it would have been otiose to state this explicitly in the amended Race Relations Act.” They acknowledge, however, that the idea of “active involvement of sectoral regulators was [ … ] not given any prominence during parliamentary debates” on the Equality Act 2010 and the role has “never been fully taken on by these bodies”.
113.The House of Lords Committee on the Equality Act 2010 and Disability considered the role of sectoral enforcement bodies to be important, recommending that the Government “amend the mandates of those regulators, inspectorates and ombudsmen that deal with services most often accessed by disabled people to make the securing of compliance with the Equality Act 2010 a specific statutory duty.” Dr Barrett made a similar recommendation to us, arguing that:
if the potential enforcement power of regulators, inspectorates and ombudsmen is to be realised, there needs to be an explicit duty on these bodies to integrate equality law into their work.
114.We are not the only House of Commons Select Committee that has considered this question. The Treasury Committee’s recent report into consumers access to financial services considered compliance and enforcement of the Equality Act, and recommended that:
the Government should give the FCA the power to take on the enforcement of individual cases relating to financial firms’ compliance with the Equality Act, in addition to the EHRC.
115.On 6 March 2019 the Secretary of State for Business, Energy and Industrial Strategy (Greg Clark) announced his intention to consult on the creation of a single labour market enforcement body. In a statement to the House on “Leaving the EU: Protection for Workers” he stated his intention to “consult broadly on establishing a new body to bring together the relevant enforcement functions of the Gangmasters and Labour Abuse Authority, Her Majesty’s Revenue and Customs, and the Employment Agency Standards Inspectorate.” Given the arguments outlined above, this struck us as a possible opportunity to strengthen compliance with the Equality Act 2010 in employment.
116.We asked Sir David Metcalf what he thought about this proposal. He told us that it was “a matter for the politicians to decide” but agreed it was worthy of consideration. When pressed on whether enforcement action on maternity discrimination might fit within the work of a body looking at enforcement of employment rights, he conceded that:
If we were to take a couple of “easier” bits, maternity pay and holiday pay seem to fall naturally under the remit of any merged or new inspectorate. [ … ] It strikes me that the investigations would be that much more difficult, but that is not a reason for not doing it.
117.He subsequently wrote to us, emphasising that as the question of a single enforcement body was still subject to consultation all discussions “are theoretical at this stage”. He told us that he did not believe “there is a strong case of synergy or increased efficiency or effectiveness for issues of equalities to be included within the single enforcement body.” He explained that this was because, in his view, the “areas of non-compliance” covered by the existing three labour market enforcement bodies “are very different from the majority of those covered by [the Equality Act]”. This, he argued, was because the employers targeted and the workers affected were likely to be different and the mechanism of enforcement was different:
The three bodies enforce minimum standards set out by the state and target the employer. They do not need an individual to make a complaint to take action against an employer who has exploited them in some way. In contrast, the Equality Act 2010 enforces individual rights, with cases of discrimination investigated and enforced at the individual level, requiring the worker to present their evidence to a tribunal to secure redress.
He was also concerned that the nature of discrimination was too different from the kind of standards the bodies he works with enforce, which he felt were “mostly clear cut”:
employers are either paying NMW or not, abiding by EAS regulations or breaking them, staying within the GLAA licensing regulations or not. Discrimination on the other hand is an area of nuance and assessment of proof (such as reasonableness or proportionately). The types of evidence and data required to prove the case against each type of behaviour are very different.
118.When we posed the same question to the Government, Baroness Williams noted that the consultation was ongoing but said that “I would not like to see a body that did not have equality and anti-discrimination at its heart.” Charles Ramsden elaborated:
There is, I think, an extent to which equality law is possibly developing a second dimension beyond the individual and the individual case, with equal pay as a kind of crossover area which involves both. There may be an extent to which a single enforcement body is more able to get to grips with bulk compliance by employers with what might be termed the newer-style equalities law—not necessarily with discrimination against an individual.
119.The Government has now published its consultation on establishing a single labour market enforcement body. The document came too late for us to address in this report, but we note that it asks if the new enforcement body could ‘address gaps’ in the enforcement tools and approach available to the EHRC.
120.EHRC guidance already sets out that regulators, inspectorates and ombudsmen need to have due regard to the aims of the general equality duty in their functions and that this could mean inspectorates ensuring that their assessments of performance of public sector bodies include consideration of performance on equality. As public bodies all enforcement bodies (including regulators, inspectorates and ombudsmen) should be using their powers to secure compliance with the Equality Act 2010 in the areas for which they are responsible. Such bodies are far better placed than the Equality and Human Rights Commission could ever be to combat the kind of routine, systemic, discrimination matters where the legal requirements are clear and employers, service providers and public authorities are simply ignoring them because there is no realistic expectation of sanction. Examples include equal pay, direct discrimination including failure to make a reasonable adjustment, harassment, and victimisation. This would supplement the work of the EHRC enabling it to focus on its strategic enforcement role and act where its expertise and unique powers are most needed, a question that we address in Chapter 3. We also agree that there is scope to consider aspects of compliance currently outside the remit of the EHRC, such as action against employers who do not comply with tribunal rulings.
121.We recommend that each Government Department be put under a legal duty to ensure that the enforcement bodies (including regulators, inspectorates and ombudsmen) for which they are responsible are using their powers to secure compliance with rights under the Equality Act 2010 in the sector for which they are responsible. If the mandate of the enforcement body does not already provide them with the ability to do this, then it must be amended to explicitly do so.
122.Any new enforcement body, including the planned new labour market enforcement body, must have an explicit mandate to secure compliance with the Equality Act 2010 using its enforcement powers. This should, as a minimum, include discrimination matters where the legal requirements are clear. Examples include equal pay, direct discrimination including failure to make a reasonable adjustment, harassment, and victimisation.
123.This report argues for a fundamental shift in the burden of enforcement, with mainstream enforcement bodies taking up the bulk of the work. Dr David Barrett supported this shift, but also pointed out that it required a change in the role of the Equality and Human Rights Commission. He envisaged three main roles for the EHRC:
(i) To act where no other enforcement mechanism can act such as tackling complex, societal wide inequalities (for example the Commission’s inquiry into disability related harassment);
(ii) To overcome some of the limitations of courts (e.g. supporting legal action to overcome access to justice issues or intervening in ongoing proceedings to provide additional evidence to the court);
(iii) To co-ordinate and support the actions of regulators, inspectorates and ombudsmen.
We would add a fourth to this list: taking enforcement action against those enforcement bodies that do not live up to their responsibilities.
124.Dr Barrett felt that this change could be beneficial, helping the Commission balance the ability to use its “wide ranging powers” with the reduction in its budget.
125.The EHRC’s relationship with other enforcement bodies will be key to its ability to deliver its functions effectively in the future. This should have already been given a much higher priority but will become even more important with a shift of emphasis as the improvements set out in this report are implemented and the burden of enforcement shifts.
126.We recommend that the Equality and Human Rights Commission make enforcement bodies, in the broad sense used in this report, a priority target for investigation and enforcement action for failure to implement their public sector equality duty in their enforcement functions.
127.We recommend that the Equality and Human Rights Commission establish memoranda of understanding with all relevant enforcement bodies within the next 12 months. These memoranda should explicitly set out which enforcement matters under the Equality Act 2010 the enforcement body will undertake and which will remain within the strategic role of the EHRC, as well as a mechanism for dialogue and joint working in less clear-cut cases. For example, we expect that any new labour market enforcement body would have to take on enforcement of routine employment discrimination matters, such as reasonable adjustments by employers, leaving the EHRC free to fulfil its strategic enforcement role and act where its expertise is most needed.
107 [on Employment: Enforcement and Inspections], 15 June 2019
109 Equality and Human Rights Commission, The Essential Guide to the Public Sector Equality Duty England (and Non-Devolved Public Authorities in Scotland and Wales) , p34
110 Barbara Cohen and Razia Karim ()
111 Derby City Council ()
112 The Runnymede Trust and Race on the Agenda ()
114 Dr David Barrett ()
116 Dr David Barrett ()
118 Financial Ombudsman Service ()
119 Women and Equalities Committee, Ninth Report of Session 2016–17, Building for Equality: Disability and the Built Environment, HC 631, para 70
121 Women and Equalities Committee, Fifth Report of Session 2017–19, HC 725, para 62
127 Dr David Barrett ()
128 Barbara Cohen and Razia Karim ()
130 Dr David Barrett ()
132 HC Deb, 6 March 2019, [Commons Chamber]
140 Department for Business Energy and Industrial Strategy, , Accessed 18 July 2019
141 Dr David Barrett ()
142 Dr David Barrett ()
Published: 30 July 2019