Appendix 2: Equality and Human Rights Commission Response
Introduction
1.The Equality and Human Rights Commission (‘the Commission’) is Great Britain’s National Equality Body and National Human Rights Institution, recognised and accredited by the UN. We stand up for freedom, compassion and justice, using our statutory powers to protect the rights of everyone in Britain. Our Strategic Plan published in June 2019 articulates how we will do this over the next three years. It concentrates our work on a focused set of issues: at the core of this is an unflinching determination to uphold equality and human rights laws and ensure that these protections remain strong. We enforce equality law robustly: challenging flagrant breaches of the law, tackling systemic discrimination and defending those in the most vulnerable situations when their rights are breached. We bring all our tools to bear on equality and human rights problems through integrated strategies to achieve measurable impact. We carry out research, monitor the extent to which human rights obligations are being met and influence law and policy; we promote better compliance with the law and seek to improve practice through guidance and inquiries; and we conduct investigations and litigation when the law is breached.
2.We are proud of the significant progress we are making. Our formal enforcement powers include undertaking litigation in the courts, conducting investigations, and entering into binding agreements with organisations. Last year we used these powers 98 times, doubling the volume of our formal enforcement work compared with 2014/15. Our current high profile investigations into equal pay at the BBC and anti-Semitism in the Labour Party demonstrate our commitment to drive change, without fear or favour. We have used our powers to ensure that 13 NHS local bodies have changed their polices so that disabled people can live independently; gig economy workers have been accorded greater protection at work; and thousands of children with special educational needs who are at risk of school exclusion are now better protected. In the first two years since the gender pay gap regulations came into force, we were successful in securing 100% compliance: every single organisation within scope published its gender pay gap data.
3.We intend to do even more: a key component of our strategy is to use enforcement action to secure real change for people facing discrimination, and we act on the most serious, systemic and flagrant breaches of the law. Later sections of this response set out our approach to enforcement.
4.The context in which the Commission is working, however, is becoming more complex. Population changes will put further pressure on services for elderly and disabled people. Growing divisions in society are leading to a rise in racial and religious hate crime. Political changes and Brexit raises questions about how the current equality and human rights infrastructure will be protected and the possibility of ‘no deal’ increases the threat of civil unrest and further polarisation of communities. In this context, the Commission has a more important role to play than ever as guardian of equality and human rights in Britain. This is why the core aim of our Strategic Plan is to uphold the system of equality and human rights protections and laws. We know that our stakeholders see this as a crucial part of our work in difficult times. Whatever the political or economic environment, we will continue to champion the rights of the most disadvantaged and be driven by a simple vision: that everyone should get a fair chance in life.
5.So we welcome the work that the Women and Equalities Select Committee (the ‘Committee’) has done to shine a light on inequality and injustice and we support many of the recommendations in their report. However we do not accept some of the Committee’s recommendations on the Commission’s current work, or recognise its characterisation of the progress we are making – while we acknowledge that we have further to go. Paragraphs 6 - 24 below set out the Commission’s response to the key points raised by the Committee’s report. Our detailed response to each of the recommendations is at Annex A.
A strategic approach to enforcement
6.Our Strategic Plan sets out how we will use the full range of our powers in an integrated way to drive change, with enforcement playing an increasingly prominent role in our work. As well as our core aim of upholding and strengthening equality and human rights laws we will concentrate on the following areas in the next three years to ensure:
- people have equal access to the labour market and are treated fairly at work;
- accessible public transport supports disabled and older people to participate in the economy and society;
- people have access to justice and a fair trial;
- our education system promotes good relations and equality and human rights;
- people’s treatment in institutions and detention settings respect their rights.
7.This focus on a smaller number of issues is allowing us to devote more resources to each particular problem: we are better able to assemble the evidence base, influence the debate, and take enforcement action where we see flagrant breaches of the law or systemic discrimination.
8.We know that some of these issues are about tackling entrenched inequalities, or long-standing attitudes. Fixing these problems will not be quick. So we will continue to review and refine our approach, prioritising further where necessary to ensure we have maximum impact.
Robust enforcement
9.Listening to the views of the Committee, the Government and our other stakeholders, we have significantly increased our enforcement activity in recent years and have done so in the context of a reduced budget. This year has seen us undertaking three inquiries and two major investigations – a record for the Commission. Our enforcement work has wider societal impact: it helps us gather the intelligence to influence Government, public authorities and the private sector to act to advance equality and rights in order to build a more equal and rights-respecting society.
10.We agree with the Committee that the burden for Equality Act compliance needs to be shifted away from individuals having to challenge discrimination in the courts. Greater consideration should be given to placing the onus on duty-bearers to root out discrimination and ensure respect for equality. As evidence to the inquiry showed, there are significant barriers for individuals pursuing legal action. We agree that litigation places a significant burden on individuals, and as we said in our evidence, there are inherent challenges in the model of individual enforcement, such as an imbalance of power, cost, stress, complexity and the low level of compensation in some cases. As well as the role for Government in securing better compliance with the Equality Act, the Commission has an important role in this shift of emphasis.
11.The Committee is right to note the importance of organisations believing that the Commission will take action on serious breaches of the law and support individuals. We have created a step change in this area, and will continue to raise our profile as a robust enforcer of the law. Last year we considered over 250 pre-statutory enforcement matters – which did not result in formal investigations largely because contact from the Commission was sufficient to ensure compliance. When employers did not comply with the requirement to report their gender pay gap we took action, invoking our investigation powers to secure compliance. As a result we achieved 100% compliance from businesses, a remarkable result which demonstrates how reluctant employers are to be publicly investigated by the Commission. It shows how significant an impact the Commission has when it uses all its levers to achieve an outcome.
12.The more vocal we can be about our successful enforcement activity, the better. We were cited in the mainstream media more than 1,200 times in 2018/19, 40% more than the previous year. We have established a new Compliance team whose role includes ensuring that important court judgments are followed up with communication to relevant organisations to help ensure they meet the requirements of the law. For example, when a court decided that a landlord was required to give consent for reasonable alterations to benefit a disabled tenant, we promoted the case and its implications through landlords’ forums and disabled people’s organisations to inform people of their rights and promote wider compliance across the sector.
Prioritising enforcement activity
13.Being more vocal about what we do does not mean we can tackle every breach of the Equality Act. The Commission is, among other things, a strategic enforcer of equality law; it cannot, and was never intended or resourced to enforce against all breaches of the Act. No other comparable regulatory body has an equivalent breadth of remit within a field of law of equivalent complexity. So we do not accept the Committee’s view that we have failed to act to address inequalities. We are unapologetic about focusing our limited resources on those areas where we know we will have the most impact. Many of our stakeholders acknowledge that this is the right approach and agree that our new strategic focus is allowing us to influence the debate and target those areas where we can most make a difference.
14.A typical example of this approach is our recent launch of a legal support project to help individuals with discrimination cases concerning public transport. While we cannot support every transport case arising across Britain this project will highlight the issue, make transport operators more aware of their legal obligations and the risk of non-compliance, and stimulate action to secure wider improvements to the system. Transport operators who discriminate will know that enforcement action is a tangible risk.
More than enforcement
15.The Equality Act 2006 requires the Commission to encourage and support the development of a society in which people’s potential is not limited by prejudice or discrimination, where human rights and individual worth are respected and each individual has an equal opportunity to participate in society. This vision for Great Britain clearly cannot be achieved through enforcement alone. As we set out in our evidence to the Committee, using the range of levers at our disposal in combination is necessary to deliver long term and meaningful change, including cultural change. The Commission was established by Parliament to be a change agent in society, with enforcement being one of the ways that we can drive advances in equality. Enforcement is a powerful tool – but it is not the only one.
16.As the Government’s Tailored Review recognised, and we strongly agree, we have the greatest impact when we use all of our powers in combination to achieve systemic change. Preventing discrimination before it occurs is our key goal and to achieve this we need to create a culture of compliance. Inquiries, for example, help organisations and people understand rights and responsibilities. They allow us to identify the barriers to compliance and pinpoint areas for intervention: for this reason, in future, we plan to make more use of them in our work. Continuing to enforce Equality Act alongside this work secures redress for victims and prevents discrimination from happening with impunity.
Access to intelligence
17.Our contact with stakeholders is critical to the success of our work. It is only if we hear directly from them about the inequalities and discrimination they experience that our work will be fully informed. The Committee recommends that the Commission should use social media, letters from constituents, local and national media, debates in Parliament(s) and the reports of select committees as information sources. We agree and we routinely draw on these sources of information as part of our intelligence gathering.
18.We agree with evidence from witnesses that not having a Commission-controlled helpline reduces our ability to detect relevant issues, trends, and individual cases. While we have a constructive working relationship with the current helpline contractor, this is not an adequate substitute for the helpline being integrated into our operations, a point made by witnesses in oral evidence to the Committee. We are working with the Government Equalities Office to review the arrangements, in line with the recommendations of the Tailored Review.
Our procedures
19.The Committee was critical of how long it took for the Commission to launch a formal investigation in into equal pay at the BBC, suggesting this reflected ‘timidity’ or ‘lack of organisational confidence’. We strongly refute this. It is vital that we deliver decisive investigations based on the proper collection of evidence. Without this, we risk failing to deliver the right outcome for those whose rights we want to protect, and wasting public money. The timescales reflect the complexity involved in a large-scale investigation and the requirement for us to gather sufficient evidence to establish suspicion of an unlawful act before proceeding.
20.However, we welcome the support from witnesses for our powers to be streamlined to reduce the procedural hurdles involved, enabling us to conduct more agile investigations and other enforcement actions. This could include enabling the Commission to compel evidence from witnesses before formally launching an investigation. We intend to engage further with the Committee on this point.
21.We have consulted on a new litigation and enforcement policy which will ensure enforcement is not treated as a ‘last resort’, while still complying with the Regulators’ Code. All of our decision-making on the use of our powers is firmly rooted in our Strategic Plan and based on careful consideration of the impact we will have.
The role of other enforcement bodies
22.The Committee makes some important observations about the roles of ‘mainstream’ regulators, inspectorates and ombudsmen (RIOs) in securing compliance with the Equality Act 2010. Such organisations are already required, under the Public Sector Equality Duty (PSED) to consider the need to eliminate unlawful discrimination and harassment and to advance equality of opportunity through their functions. We have advocated for changes to strengthen the PSED specific duties, and this would provide an opportunity to make clear how RIOs should implement these responsibilities in practice in relation to the bodies they oversee. We would also like to see a clear duty on oversight bodies to inspect for progress on the delivery of equality outcomes within their sector.
23.However, we do not consider that those organisations, including the proposed labour market single enforcement body, should have specific powers to enforce the Equality Act. Our own remit, which extends to all parts of the Equality Act, should not be reduced in scope. The Commission’s role as the enforcement body for the Equality Act would be undermined by such a change, and the coherence of the enforcement system for Equality Act claims would be lost.
Conclusion
24.We welcome the Committee’s scrutiny of our work and continuing contribution to this debate. In these turbulent times, the Commission plays a critical role in standing up for the right of every citizen to demand that they are given a fair chance in life. So while our remit is broad, our focus is increasingly targeted on the areas where we can make most difference: where we know we will have most impact, where we see flagrant, serious or systematic breaches of the law; where the most disadvantaged in our society are discriminated against. We look forward to working with the Committee on the challenges ahead.
Published: 25 October 2019