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

6The need for proactive and preventative duties and obligations

135.Our report on sexual harassment in the workplace found an “epidemic of inaction and poor practice” on tacking sexual harassment in the workplace. Employment lawyer Clare Murray contrasted this with data protection and preventing money laundering, where there are “really stringent regimes that have criminal and civil sanctions.” She argued that:

we should be willing to consider placing as much importance on protecting people’s safety and their wellbeing at work as we do on their data and on preventing money laundering through businesses.149

136.This same message was heard time and again throughout this inquiry. When we were taking evidence many witnesses were dealing with new data protection rules. Karon Monaghan QC reflected the views of many150 when she told us that:

We are all incredibly stressed about data protection—I am responsible as an individual because I am a sole practitioner—and I have spent half my summer holidays doing it. I haven’t spent half my summer holidays working out whether our women cleaners are being paid the same as our caretakers.151

137.Health and safety enforcement was also contrasted to the reactive, individual nature of Equality Act enforcement. Unite the union argued for the same rights for union equality reps as exist for their health and safety reps so that they could “support action to prevent [discrimination] and to promote equality” in a similar way.152

Existing and proposed duties

138.There are currently two sets of duties that require a proactive approach: the public sector equality duty and the gender pay gap regulations.

The public sector equality duty

139.Probably the most prominent of the duties on organisations is the public sector equality duty. The 2010 Act replaced separate race, disability and gender equality duties with a single duty across all protected characteristics. This duty was designed to require active consideration of how to eliminate discrimination and advance equality more generally. The EHRC website explains that:

Prior to the introduction of the race equality duty, the emphasis of equality legislation was on rectifying cases of discrimination and harassment after they occurred, not preventing them happening in the first place. The race equality duty was designed to shift the onus from individuals to organisations, placing for the first time an obligation on public authorities to positively promote equality, not merely to avoid discrimination.153

Box 4: The public sector equality duty (PSED)

The public sector equality duty is made up of a general equality duty supported by specific duties. The general equality duty is set out in section 149 of the Equality Act 2010. This is the same for England, Scotland and for Wales and it came into force on 5 April 2011. The specific duties are created via secondary legislation. These are different for England, Scotland and Wales.

The public sector equality duty is the title of the duty, and how it is referred to in the Equality Act. It consists of the general equality duty which is the overarching requirement or substance of the duty, and the specific duties which are intended to help performance of the general equality duty.

The general equality duty

The general equality duty applies to public authorities. In summary, those subject to the general equality duty must, in the exercise of
their functions, have due regard to the need to:

Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.

Advance equality of opportunity between people who share a protected characteristic and those who do not.

Foster good relations between people who share a protected characteristic and those who do not.

These are often referred to as the three aims of the general equality duty. The Equality Act explains that the second aim (advancing equality of opportunity) involves, in particular, having due regard to the need to:

Remove or minimise disadvantages suffered by people due to their protected characteristics.

Take steps to meet the needs of people with certain protected characteristics where these are different from the needs of other people.

Encourage people with certain protected characteristics to participate in public life or in other activities where their participation is disproportionately low.

The specific duties

The general duty is supported by a set of ‘specific duties’ set out in Regulations made by the Secretary of State “for the purpose of enabling the better performance by the authority” of the public sector equality duty.154 These apply to a defined list of public authorities, which can itself be extended by the Secretary of State by Regulations under the Equality Act. Those currently in force are set out in the Equality Act 2010 (Statutory Duties) Regulations 2011 and require those bound by them to:

publish information annually to demonstrate compliance with the general equality duty.

publish one or more equality objectives that it thinks it needs to achieve to further the aims of the general equality duty.

Source: adapted from EHRC PSED Essential Guide

140.The Women’s Budget Group believed that this duty “has the greatest potential to effect wide change”, arguing that its “structural approach is more effective than individual litigation.”155 Catherine Rayner, a barrister and Chair of the Discrimination Law Association, highlighted how it had been used to “flag up difficulties” at an early stage through judicial review, but also by “smaller community groups that were looking at services—whether it was about disabled people having access to buildings, or using planning committees or whatever.” Such use could help identify “a responsibility or a concern at an early stage of decision making” making clear the responsibilities of, for example, a council committee to “look at the equality impact and take it into account in a serious way, and to ensure that there are changes in the way that things are done.”156

141.The duty was, however, criticised by many for its limited impact—not least because they saw the duty to have “due regard” as insufficient. The House of Lords Committee on the Equality Act and Disability concluded that this was a “fundamental flaw” in the duty because it allowed a public authority to “make no progress towards the aims of the general duty and yet be judged compliant with it”. They therefore recommended that it be amended to require a public authority to “take all proportionate steps” towards the achievement of the goals set out in the duty.157 This recommendation was endorsed in evidence to our inquiry by Disability Rights UK158 and similar recommendations were made to us by Nordic Model Now!, which wanted to see the duty strengthened by replacing “due regard” with “take reasonable steps”.159

142.We have sympathy with these arguments, but such changes would require more detailed consideration than the scope of this inquiry into enforcement allows. We did, however, receive substantial evidence that the specific duties could be used more effectively to support compliance with the general duty, even in its current form.

143.The Women’s Budget Group were highly critical of the current specific duties’ requirement to “publish a single equality objective [ … ] and some equality information”. They felt that it was “difficult to see how these two duties help to hold public bodies to account”, and were critical of the lack of duties to “set out steps to meet equality objectives”, to “consult or involve”, to publish “specific information on the pay gap” and to “consider equality in procurement”.160 Nordic Model Now! wanted changes to the specific duties to make equality schemes, action plans and impact assessments mandatory and introduce a statutory inspection mechanism for compliance.161 Inclusion Scotland argued in favour of the EHRC being given “enforcement powers requiring public bodies to produce clear and measurable targets for promoting equality and tackling discrimination, or face [a] penalty”.162 Runnymede Trust and ROTA wanted to see equality impact assessments strengthened “to ensure action rather than tick boxing.” They argued that “Impact assessments need to not only outline disproportionality but also meaningful remedies to mitigate the impact.”163

144.The Equality and Human Rights Commission also focussed on the specific duties in their recommendations for action. Melanie Field told us that “[w]e would like the public sector equality duty to be much more focused and strategic”.164 Their written evidence proposed that “Governments across Britain [ … ] review how the PSED specific duties could be amended to focus public bodies on taking action to tackle the key challenges in the Commission’s Is Britain Fairer? reports.” They suggested that objectives could be set using the key findings of that report with “evidence of action and progress” in relation to those key findings being published.165

145.This is similar to the approach taken in our inquiry into sexual harassment in the workplace, which recommended a specific duty under the Public Sector Equality Duty requiring relevant public employers to conduct risk assessments for sexual harassment in the workplace and to put in place an action plan to mitigate those risks.166

146.The Minister, in contrast, argued that the PSED was “deliberately a broad duty” and warned that:

If you start to specify across various different strands, there could be situations where employers would argue that it was not specified. It is quite important to have that broader due regard.167

147.We agree with the Equality and Human Rights Commission that the specific duties should be more focussed and strategic. Aligning obligations with evidence of particular inequalities or aspects of discrimination strikes us as an effective means of doing so. While the EHRC’s work on Is Britain Fairer? is a good starting point there are similarly robust sources that Government can draw on, including expert research organisations, the Race Disparity Audit and indeed from the reports of Parliamentary Select Committees.

148.We recommend that the Cabinet Office work across Government to identify a small number of evidence-based issues of inequality or discrimination suitable for action either within a specific sector or cross-departmentally and that the Government introduce new specific duties under the Equality Act 2010 to direct the relevant Department and public authorities to take action on these identified inequalities. These specific duties should be reviewed at least every three years in line with new data available from the EHRC’s report Is Britain Fairer? and the Government’s Race Disparity Audit, among other sources.

Duties in the private sector: sexual harassment

149.In our inquiry into sexual harassment in the workplace we also recommended a mandatory duty on private sector employers to protect workers from harassment and victimisation in the workplace, alongside the duty on public sector employers outlined above.168 Had the Government agreed to implement our recommendations, breach of this duty would have been an unlawful act enforceable by the Equality and Human Rights Commission and carry substantial financial penalties. It would have been supported by a statutory code of practice on sexual harassment and harassment at work setting out just what employers need to do to meet the duty.169

150.Unfortunately, the Government did not accept our recommendations, although it did agree to consult on the potential for a new mandatory duty on employers and to work with the EHRC on a more detailed Code of Practice under the current legislation.170 When we asked why the Government had not accepted our recommendations, the Minister replied “But employers should always take action if their employees are the subject of sexual harassment.”171 She did not elaborate further.

151.Since the Government response to our previous inquiry, the Trade Unions Congress (TUC) has published research showing high levels of sexual harassment and sexual assault against LGBT people in UK workplaces. In response the TUC makes similar recommendations to those made by the Committee, specifically it recommends:

152.Business in the Community also suggested that a duty should extend beyond sexual harassment. They were concerned that a “fragmented approach” was “one of the greatest impediments to successful enforcement of the Equality Act”. They praised the EHRC initiative of asking companies “to prove what they were doing to tackle sexual harassment in the workplace”, agreeing that this was “a positive step towards a more inclusive workplace.” They were also “pleased to note” the EHRC call for a mandatory duty on employers to protect workers from harassment and victimisation in the workplace. They were, however, disappointed that these actions “were announced in the context of sexual harassment alone, rather than encompassing the range of discriminatory behaviours covered in the Equality Act.”173

153.While we remain of the view that specific actions are needed to tackle sexual harassment in the workplace, we agree that this risks the kind of fragmentation that concerns business. We do not want a shift in the burden away from the individual to add disproportionately to that on employers. On the other hand, we have seen evidence of how duties that focus minds on particular issues, such as the gender pay gap, can have greater impact. We believe that extending our recommendation to include all forms of harassment and victimisation strikes the right balance between retaining this focus and minimising the fragmentation of employer responsibilities.

154.We re-iterate our recommendations in the report of our inquiry into sexual harassment in the workplace that:

155.We further recommend that these duties should extend to all unlawful harassment and victimisation covered by the Equality Act 2010, not just sexual harassment.

149 Women and Equalities Committee, Fifth Report of Session 2017–19, Sexual Harassment in the Workplace HC 725, para 24 citing Clare Murray at Q2

150 Q12 (Sam Smethers); Mrs Jeanine Blamires (EEA0104)Working Out (EEA0134); Nathalie Abildgaard (EEA0270)

152 Unite the union (EEA0127)

153 Equality and Human Rights Commission, ‘Public Sector Equality Duty’, Accessed 28 July 2019

154 Equality Act 2010, section 153

155 Women’s Budget Group (EEA0045)

157 House of Lords, Report of the Select Committee on the Equality Act 2010: The impact on disabled people, Session 2015–16, HL Paper 117, para 346

158 Disability Rights UK (EEA0142)

159 Nordic Model Now! (EEA0070)

160 Women’s Budget Group (EEA0045)

161 Nordic Model Now! (EEA0070)

162 Inclusion London (EEA0187)

163 The Runnymede Trust and Race on the Agenda (EEA0213)

165 Equality and Human Rights Commission (EEA0254)

166 Women and Equalities Committee, Fifth Report of Session 2017–19, Sexual Harassment in the Workplace HC 725, para 35

168 Women and Equalities Committee, Fifth Report of Session 2017–19, Sexual Harassment in the Workplace HC 725, para 72

169 Women and Equalities Committee, Fifth Report of Session 2017–19, Sexual Harassment in the Workplace HC 725, para 32

170 Government Equalities Office (EEA0259)

173 Business in the Community (EEA0165)

Published: 30 July 2019