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

Conclusions and recommendations

The limitations of an individual approach to enforcement

1.We do not disagree that there are many examples of case law that makes the obligations on employers, service providers and public bodies clear. Despite this, many such organisations still do not meet these obligations and go unchallenged under the current individualised approach. While individuals must still have the right to challenge discrimination in the courts, the system of enforcement should ensure that this is only rarely needed. This requires a fundamental shift in the way that enforcement of the Equality Act is thought about and applied. (Paragraph 23)

The enforcement role of the Equality and Human Rights Commission

2.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. (Paragraph 51)

3.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. (Paragraph 52)

4.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. (Paragraph 53)

5.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. (Paragraph 54)

6.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. (Paragraph 61)

7.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. (Paragraph 72)

8.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. (Paragraph 73)

9.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. (Paragraph 79)

10.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. (Paragraph 83)

11.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. (Paragraph 94)

12.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. (Paragraph 95)

13.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. (Paragraph 96)

14.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. (Paragraph 97)

Mainstream enforcement bodies

15.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. (Paragraph 120)

16.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. (Paragraph 121)

17.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 (Paragraph 122)

18.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. (Paragraph 125)

19.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. (Paragraph 126)

20.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. (Paragraph 127)

Enforcing the Equality Act at the heart of Government policy

21.We have seen repeated examples of Government Strategies that fail to recognise discrimination, let alone contain actions to secure compliance with the Equality Act. This failure leaves the Government at serious risk of breaching the public sector equality duty in its most important strategies and means that individuals facing discrimination continue to bear the full burden of enforcement, even in policy areas that the Government has identified as of central importance to the country. We are disappointed that the Government Equalities Office has not been able to secure greater compliance with the law by other Government Departments. (Paragraph 133)

22.The Government must put in place a mechanism to ensure that every one of its strategies, plans, and policies, such as the Good Work Plan, the Industrial Strategy and Fuller Working Lives contain explicit plans to improve enforcement of rights under the Equality Act 2010 in the area that it deals with. The Government Equalities Office must be empowered to oversee this mechanism and no significant strategy, plan or policy should be signed off by a Minister without them assuring themselves that such plans are included. (Paragraph 134)

The need for proactive and preventative duties and obligations

23.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. (Paragraph 147)

24.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. (Paragraph 148)

25.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.(Paragraph 153)

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

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

Balancing rights in single-sex services

28.While the apparent failure of significant numbers of public sector commissioners to properly apply the public sector equality duty to their decision making is a problem of understanding and not of the law itself, it is a clear example of what is going wrong because of the current system of equality law enforcement. This cannot be left to affected organisations to fix. As Women’s Aid made clear, they do not have the resources to do so. (Paragraph 167)

29.We recommend that the Government Equalities Office issue a clear statement of the law on single-sex services to all Departments, including the requirement under the public sector equality duty for commissioners of services to actively consider commissioning specialist and single-sex services to meet particular needs. (Paragraph 168)

30.We do not believe that non-statutory guidance will be sufficient to bring the clarity needed in what is clearly a contentious area. We recommend that, in the absence of case law the EHRC develop, and the Secretary of State lay before Parliament, a dedicated Code of Practice, with case studies drawn from organisations providing services to survivors of domestic and sexual abuse. This Code must set out clearly, with worked examples and guidance, (a) how the Act allows separate services for men and women, or provision of services to only men or only women in certain circumstances, and (b) how and under what circumstances it allows those providing such services to choose how and if to provide them to a person who has the protected characteristic of gender reassignment. (Paragraph 190)

Individual action in Courts and Tribunals

31.The Ministry of Justice has committed to monitor take up of legal aid for discrimination cases and to assess the level of face to face provision once the planned round of procurement of specialist telephone advice and face to face contracts has been completed. This is to be welcomed but must also explicitly evaluate their effectiveness in securing legal aid for those facing discrimination in a way that genuinely improves access to justice. (Paragraph 200)

32.We recommend that the Ministry of Justice monitor and evaluate the effectiveness of the removal of the mandatory requirement to access legal advice for discrimination cases through the telephone gateway, the planned legal aid awareness campaign and the procurement of specialist advice services in increasing the number of individuals being granted legal aid, including legal representation, for discrimination claims. (Paragraph 201)

33.If the necessary critical mass of cases is to be achieved, the starting point for the cost benefit test for civil legal aid should be a presumption that enabling discrimination cases to be brought is in the wider public interest. (Paragraph 206)

34.We recommend that the Government amend the rules on application of the cost benefit test for civil legal aid to reflect the non-financial value, to the individual and to society, of enabling a discrimination claim to be brought. The rules should require the cost benefit assessment to start from an assumption that discrimination claims are not primarily claims for damages and are likely to be in the wider public interest. (Paragraph 207)

35.We recommend that the Government amend the Civil Procedure Rules to introduce qualified one-way costs shifting for discrimination claims in the county court.(Paragraph 212)

36.We recommend that the Government work with the Courts and Tribunals Service to issue guidance to judges and the legal profession on when refusing to enter a settlement agreement or agree to a non-disclosure agreement will and will not constitute grounds for awarding costs in discrimination claims, with a strong presumption that such a refusal, on its own, will not lead to an award of costs against an individual. (Paragraph 216)

37.It cannot be beyond the ability of our courts system to be able to publish something as important to those involved as the judgment of their case. The Equality and Human Rights Commission is correct to argue that this would increase transparency and provide comprehensive, accessible information about discrimination cases in the county court. (Paragraph 218)

38.We recommend that the Courts and Tribunals Service publish the judgments in county court discrimination cases online, with suitable use of anonymity to protect individuals where appropriate. (Paragraph 219)

39.There are two key areas where the most urgent improvement to the remedies available for breaches of the Equality Act is needed: the financial consequences of discrimination need to be such that they act as a significant deterrent and the courts and tribunals need the power to ensure that their judgments can achieve change beyond the individual case. (Paragraph 223)

40.We recommend that the Government bring forward legislation to make exemplary damages for discrimination claims more widely available in both employment tribunals and in county courts. (Paragraph 224)

41.We recommend that the Government bring forward legislation to empower both employment tribunals and county courts to make remedial orders that require organisational change and to make wider recommendations where this can support change within the wider sector. (Paragraph 225)

Published: 30 July 2019