First Special Report
The Women and Equalities Committee published its Tenth Report of Session 2017–19, Enforcing the Equality Act: the law and the role of Equality and Human Rights Commission (HC 1470) on 17 July 2019. The Equality and Human Rights Commission’s response was received on 2 October and the Government’s response was received on 15 October. The responses are appended to this report.
Appendix 1: Government Response
Introduction
The Equality Act 2010 (‘the Equality Act’) is the cornerstone of equalities legislation, providing protection from discrimination. It embodies the principle of fair treatment, providing an important safeguard for the rights of individuals, and recourse to redress. The Government is committed to ensuring that the processes for enforcing the Act are working effectively to provide the necessary protections.
As our evidence noted, and the Committee’s report acknowledged, since the first Race Relations Act of 1965, anti-discrimination law has always been civil law, primarily enforced by individuals. The structure of the law reflects this: the test for proving discrimination in many circumstances is to show that an employer or service provider has treated one individual less favourably than another individual for reasons related to a protected characteristic – the comparator test – not simply that someone has been treated unfairly against an absolute standard. Under the Equality Act 2010, as under previous anti-discrimination legislation, many individuals have taken cases to courts and tribunals, and as a result of specific judgments, the interpretation of the law has developed around almost every protected characteristic. In 2017/18 alone, 58,661 employment tribunal claims were made on the grounds of discrimination involving a protected characteristic.
That said, the introduction first of the reasonable adjustment duties to avoid disadvantaging disabled people, then public sector duties (consolidated and expanded into the Public Sector Equality Duty in the 2010 Act) and more recently the Gender Pay Gap Reporting regulations, have started a process of moving towards a “mixed economy” of compliance and enforcement. Increasingly, compliance is no longer simply a matter of avoiding behaviour which is perceived as being discriminatory, harassing or victimising, but also of complying actively with specific legal requirements with enforcement through judicial review (of public authorities) or the Equality and Human Rights Commission (EHRC).
But we do not think it is possible that a system of proactive compliance would make individual challenge obsolete. Equality is about the perception of fair treatment, and individuals’ perception of whether they have been treated fairly will inevitably differ; similarly, the general perception of what is fair and reasonable changes over time. Under a proactive system, individual challenge may still be used where individuals felt employers and providers were not doing enough, in order to draw attention to circumstances they believed were underserved.
Given this, it is likely that enforcement will continue to develop through a combination of pro-active compliance requirements, and complaints and legal actions being brought by individuals. Our responses to individual recommendations in the Committee’s report set out a number of ways in which we will be seeking to ensure that the Equality Act 2010 can best result in fair treatment for everyone in employment, or in receipt of goods, services and public functions.
The other key element of the Select Committee’s inquiry is the role of the EHRC in enforcing the Act. The EHRC is an independent body, and is responding separately and substantively to the report. However, we welcome the Committee’s recommendations relating to the EHRC, and particularly its endorsement of the 2018 Tailored Review, to which both Government and the EHRC are committed. We are keen to see EHRC make further progress on the review’s recommendations to prioritise and deliver against its unique powers. We are clear that further enhancement of the EHRC’s enforcement role cannot merely be a question of it supporting more individuals to bring claims in courts and tribunals. Evidence to the inquiry from both Government and EHRC itself has emphasised that the EHRC was never resourced to support more than a tiny proportion of claims made under the Equality Act. The Committee’s report speaks of the high cost of legal action to individuals; but clearly claimants are not the only parties involved and costs fall on all parties – for the EHRC, the average cost of providing formal legal assistance to a claimant or potential claimant under Section 28 of the Equality Act 2006 is around £7,000. Were it therefore to support on this basis just 10% of the 58,000+ discrimination tribunal claims mentioned above, its costs for this aspect of enforcement alone would exceed £35m – nearly double its entire budget.
We therefore strongly support EHRC taking “smart” action, through more systemic approaches and considerably greater use of investigations, which have in the past tended to be seen by EHRC as separate exercises not closely related to its other enforcement work. We note that in the past year the Commission has initiated more enforcement action, leading to two major investigations and three inquiries.
Responses to specific recommendations
Recommendation 1
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)
The EHRC is an independent public body and is responding separately to this recommendation. For the reasons set out in the introduction, Government welcomes this recommendation.
The Minister for Women and Equalities and the Government Equalities Office will continue liaising closely with the EHRC to monitor its action plans, developed in response to the Tailored Review recommendations, and to ensure these are delivered at a pace and to a high standard.
Recommendation 2
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)
The EHRC is an independent public body and is responding separately to this recommendation. In general we welcome this recommendation, and note that the Tailored Review found that the strongest public perception of EHRC (74% of its stakeholders) thought of it as a provider of information, with only 47% seeing it an enforcement body. We are aware that the EHRC is taking steps to enhance publicity for its enforcement activities and will no doubt cover this in its response.
Recommendation 3
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)
The EHRC is an independent public body and is responding separately to this recommendation. As already noted, we welcome the EHRC increasing the number of investigations it carries out, notice it has started to make progress in this respect and welcome suggestions for it to review and further streamline its processes. However, merely “suspecting” an unlawful act appears a modest legal test for triggering further action and we would not expect the law to require changing.
Recommendation 4
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)
In the Government’s view this recommendation – which would be unique across public sector regulators and enforcement bodies – could create moral hazard, where risks are not realistically assessed because of the assumption that losses resulting from bad decisions will be underwritten. It could also result in issues around the propriety of public expenditure, particularly in cases brought against other public sector authorities and/or where Government was supporting the respondent. Since the Government has not in the past agreed with the EHRC’s definition of a “strategically important case”, it also cannot be assumed that there would be an agreed basis for providing an obligation to indemnify.
Recommendation 5
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)
The EHRC is an independent public body and is responding separately to this recommendation.
As noted in the introduction to this response, we welcome the Committee’s endorsement of the Tailored Review. The Minister for Women and Equalities and the Government Equalities Office are working with the EHRC to use the Tailored Review as a basis for the EHRC’s development.
Recommendation 6
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)
The Government agrees that enforcement bodies are an important part of the answer to securing compliance with rights under the Equality Act 2010. We are committed to doing more to ensure that enforcement bodies are using their powers to secure compliance in the sectors they are responsible for. However, we do not believe that a further legal duty in this area is the best way to promote compliance.
There are over 70 national regulators – some sector specific, and others covering all sectors but concerned only with a particular policy area. Many organisations will be regulated by more than one regulator, raising the risk of duplication of activity. We would also need to guard against the risks that may come with enforcement bodies taking on a special responsibility for compliance with the Equality Act 2010, as some organisations will have only limited contact with regulators, potentially leaving them under little scrutiny. Furthermore we would note that regulators are operationally independent of their sponsor departments and a further legal duty raises the prospect of departments having to intervene in their regulators’ operational matters.
Instead, the Government is taking a number of steps to drive effective action by enforcement bodies. As promised in oral evidence to the Committee, the Government Equalities Office has refreshed its Public Sector Equality Duty (PSED) Network to include enforcement bodies and refocus its terms of reference towards promoting compliance throughout policy development and service delivery. The Network will support enforcement bodies to both comply with PSED themselves, and to use their powers to secure compliance by the public bodies in their sectors as appropriate. Through their inclusion in the Network, enforcement bodies will also be directly included in GEO’s efforts to ensure Equality Objectives are high quality and genuinely reflective of organisations’ work.
Some bodies are also working directly with the EHRC. For example, the Health and Safety Executive (HSE) is in the process of setting up more formal working arrangements with the EHRC. Good progress has been made on these arrangements and HSE continues to offer support to EHRC as appropriate.
Recommendation 7
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)
On 16 July Government launched a consultation on proposals for a new single labour market enforcement body. The consultation sought stakeholder views on what role a new enforcement body could play in relation to tackling harassment and discrimination in the workplace. It also considered the role a new body could play in supporting compliance and the provision of information and guidance more generally. The consultation closed on 6 October 2019 and we will use the responses and views gathered through stakeholder roundtables to inform the Government response.
Recommendation 8
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)
The EHRC is an independent public body and is responding separately to this recommendation. Similarly, other enforcement bodies work independently of their sponsor departments in Government.
However, the Government is supportive of this recommendation and agrees that joint working with other enforcement bodies can increase the efficiency and effectiveness of the Commission. We are aware of the EHRC’s ongoing commitment to improving the relationship with sector-specific enforcers and embed equality and human rights into their enforcement activities, which is also prioritised in the Commission’s recent strategic and business plans. The Government welcomes the Commission’s 2018/19 Business Plan, where it commits to conducting a review of its current RIO Forum – a group of regulators, inspectorates and ombudsmen with an interest in human rights and equality – to ensure it is an effective way of working together and sharing best practice in driving progress on equality and human rights.
Recommendation 9
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)
The EHRC is an independent public body and is responding separately to this recommendation
Recommendation 10
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 Government agrees that it is essential that equality is considered at every stage of the policy development process and that enforcement of rights can be improved by concerted sectoral action. We intend to ensure that greater attention is paid to the enforcement of rights across Government through the coordinating power of both the newly established Equalities Hub and the Economic and Domestic Secretariat in the Cabinet Office.
However, we do not agree that a requirement should be placed on every strategy, plan or policy to contain explicit plans to improve enforcement rights. Not all policy papers will be the appropriate vehicle for setting out plans regarding enforcement of rights under the Equality Act 2010 and a blanket requirement could lead to a tick-box approach.
Instead, the Government Equalities Office is continuing to take advantage of its new position at the heart of Government to further embed equalities across departmental policy making and service delivery.
Recommendation 11
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)
The specific duties under the Equality Act 2010 are set out in regulations which vary across England, Scotland and Wales and were brought into effect from September 2011 onwards. The specific duties play an important role in underpinning the main Public Sector Equality Duty, focussing organisations’ efforts around equality objectives, and providing transparency through the publication of data. The system is intentionally designed to require organisations to set their own equality objectives, focussing on the issues of most relevance within their sectors.
The Government Equalities Office has been building on the foundations of the specific duties in its recent efforts to embed equalities in the government’s public policy planning process. In 2018, it ensured government departments now publish their Equality Objectives every year (instead of every four years as required by the regulations) by adding them to annual departmental plans. It worked closely with departments to achieve an increase in the quality and quantity of their Equality Objectives in their 2019 plans. In the 2019/20 process, the Government Equalities Office will be engaging Departments at an earlier stage and highlighting priorities identified by EHRC’s Is Britain Fairer? report, as well as work following on from the LGBT Action Plan and Gender Equality Roadmap. We think that this approach strikes the right balance between co-ordinating efforts across Government to focus on key issues, while maintaining Departments’ ownership of and therefore engagement with objectives. We will continue to assess how this process can be improved.
Recommendation 12
We re-iterate our recommendations in the report of our inquiry into sexual harassment in the workplace that:
- The Government should place a mandatory duty on employers to protect workers from harassment and victimisation in the workplace. Breach of the duty should be an unlawful act enforceable by the Commission and carrying substantial financial penalties. The duty should be supported by a statutory code of practice on sexual harassment and harassment at work which sets out what employers need to do to meet the duty; and
- The Government should introduce 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. Action plans should set out how cases will be investigated and include guidance on penalties for perpetrators. (Paragraph 154)
Following the Committee’s 2018 report on sexual harassment in the workplace, the Government committed to consult on the effectiveness of current legislation in this area. This consultation process is closed on 2 October and the Government is analysing the responses received.
As detailed in our response to the 2018 report, public sector organisations (with limited exceptions) are already required to have ‘due regard’ to the need to eliminate harassment under the Public Sector Equality Duty. They are also required to set themselves equality objectives at least every four years.
The Government has already agreed to introduce a new statutory Code of Practice which will advise employers on what they should be doing to prevent sexual harassment, and how to address it when it does occur; this will apply to employers within the public sector as well as outside it. As this work progresses we will assess whether additional public sector guidance is required, and incorporate it if so. If we were to introduce a duty to prevent harassment, following our current consultation, this would apply to the public sector as well as all other employers.
Recommendation 13
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)
As detailed in our response to recommendation 12, the Government is already consulting on whether it should introduce a new duty. We propose that this duty, if introduced, would apply to all forms of harassment.
We are aware of concerns that a broader duty on harassment may be less effective, and are therefore interested in respondents views on this question, as shared in our consultation exercise. As such, we will withhold judgment on this recommendation until the consultation process has concluded.
With regard to a further duty to prevent discrimination, although our recent consultation focussed on sexual harassment, we think it will raise many points of relevance to other areas and therefore believe it is sensible to wait until we have studied the question of a duty on harassment further before we consider an additional duty.
Recommendation 14
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)
We agree that clarity is needed on the question of single-sex services and plan to publish guidance to provide this. Earlier this year, the Government committed to develop and publish best practice guidance for commissioners and service providers on their legal obligations under the Equality Act 20101 , including how and when to commission specialist and single sex services to meet particular needs. This guidance will fulfil the same role as a statement of law, clarifying how the law works and organisations’ responsibilities under it, including for compliance with the Public Sector Equality Duty.
Recommendation 15
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)
As set out in response to recommendation 14, the Government is planning to develop and publish non-statutory guidance on how the Equality Act 2010’s single and separate sex service exemptions apply. There are limitations to what could be achieved through statutory guidance as there is no case law in this space that moves beyond interpretation of the original legislation, so it would not be possible to set out ‘rules’ for the application of exemptions: statutory guidance must reflect existing law, it is not a means of establishing new law.
Recommendation 16
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)
The Ministry of Justice will monitor the impact of the removal of the mandatory gateway and the procurement of specialist advice services on the number of people accessing legal aid.
The Legal Aid Agency regularly monitors capacity and the available access to services and takes action where it identifies gaps in services or where demand is greater than the available supply.
Recommendation 17
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)
We are aware of the EHRC’s recommendation and we will give this due consideration.
Recommendation 18
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)
The Government reviewed costs protection in the Post-Implementation Review (PIR) of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which was published on 7 February 2019. The PIR concluded that, on the evidence available, the Part 2 reforms had, on balance, successfully met their objectives.
The position on any potential extension of costs protection was covered in paragraph 160 of the PIR of Part 2 which stated:
‘In terms of any potential extension of costs protection there are clear attractions for claimants and their lawyers in being able to litigate at no or reduced costs risk. However, there is also a clear risk that by extending costs protection some of the benefits of the Part 2 reforms would be undermined: the shifting of costs back to defendants, an overall increase in costs and the potential for prolonging rather than settling litigation. The Government would wish to be satisfied that these risks have been addressed before considering the case for extending costs protection further’.
The Government maintains that position and is considering the case for extending costs protection for certain types of discrimination claims.
Recommendation 19
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)
It would not be appropriate (given the principle of judicial independence) for the Government to issue guidance to the judiciary on the grounds on which costs orders should be made in particular types of cases. This would be a matter for the senior judiciary to consider, and we will draw the Committee’s report to the attention of the Lord Chief Justice and Senior President of Tribunals.
Detailed general guidance from the President of the Employment Tribunal on the award of costs in employment tribunals was published in January 2018 and can be accessed at: https://www.judiciary.uk/wp-content/uploads/2013/08/presidential-guidance-general-casemanagement-20180122.pdf (note 7).
It would be extremely rare for a tribunal or court to award costs (expenses in Scotland) on the basis that someone has failed to enter into a NDA. The test to be met to award costs is high and the person must have acted ‘vexatiously, abusively, disruptively or otherwise unreasonably’ or brought a claim which has ‘no reasonable prospect of success’. (The latter is not relevant to this issue.) It is therefore likely to be extremely rare for a tribunal or court to award costs (expenses in Scotland) on the basis that someone has failed to enter into a NDA.
Recommendation 20
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)
Some county court judgments are already published online on legal websites such as British and Irish Legal Information Institute (BAILII) and in weekly law reports. The EHRC publishes judgments from cases they have been involved with on their website.
The judiciary publish judgments at their discretion on their own website. The judiciary are proactive and supportive of efforts to increase the transparency and openness of the courts. The Government is working closely with the judiciary to consider how best to make the work of the county courts available to the public, whilst remaining mindful of the obligations outlined in the General Data Protection Regulation.
The Government notes the recommendation that HM Courts & Tribunals Service publish judgments in county court discrimination cases. As part of the HM Courts & Tribunals Reform programme, the Government is reviewing aspects of our online services. This includes exploring what it is appropriate for the Ministry of Justice and HM Courts & Tribunals Service to publish online; judgments made in county court are being considered as part of this work.
The judiciary have discretion over all decisions to protect the identities of parties in civil proceedings, including in written judgments. It is a general rule that county court hearings should be held in public and that the identity of parties and witnesses should be disclosed. The court may direct that the identity of a party or witness shall not be disclosed if it considers it necessary to secure the proper administration of justice and/or to protect the interests of that party or witness.
Recommendation 21
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)
In relation to the County Courts the principle that successive Governments have adhered to is that the core purpose of a civil law award of damages is to provide compensation for loss and not to punish.
In England and Wales the common law already provides for exemplary damages to be awarded in some circumstances, but the senior judiciary have taken the view that these should be exceptional and have to fulfil certain criteria (established in case law) to be awarded (the concept of exemplary damages is not used in Scottish law).
In England and Wales, exemplary damages are limited to cases in which at least one of the circumstances set out by Lord Devlin in the leading case of Rookes v Barnard has been met:
- Oppressive, arbitrary or unconstitutional actions by the servants of government.
- Where the defendant’s conduct was ‘calculated’ to make a profit for himself.
- Where a statute expressly authorises the same.
In addition, in civil proceedings generally the judiciary are able to award aggravated damages in circumstances where the claimant has been caused mental distress as a result of the manner in which the defendant committed the wrong or by his or her subsequent conduct.
The Government considers that the range of damages available is adequate and concurs with the judiciary’s view that exemplary damages should be exceptional. It therefore has no plans to extend the current limited statutory provision for the award in England and Wales.
As referenced in our response to Recommendations 12–14, Employment Tribunals can apply aggravated damages in discrimination claims, and where there has been an aggravated breach of employment law they can apply financial penalties of up to £20,000. The criteria set out in case law for exemplary damages does not seem to be appropriate for discrimination claims where aggravated damages are better suited.
Recommendation 22
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)
It is not clear from the Committee’s report what form the suggested court orders would take. However, it would appear that such orders would go significantly beyond the core purpose of proceedings in both the county courts and employment tribunals of awarding compensation and remedying detriment in individual cases, and could have broader implications for the role of the judiciary in this area. The Government has no plans for legislation in this area.
Published: 25 October 2019