The individual approach to enforcement of equality law is no
longer fit for purpose, says the Women and Equalities Committee
in the report of its year-long inquiry, published today.
The report argues against relying on the individual approach,
dating back to the 60s and 70s, and recommends that this must be
replaced by a new approach which provides a sustainable deterrent
and tackles institutional and systemic discrimination. While
individuals must still have the right to challenge discrimination
in the courts, says the Committee, the system of enforcement
should ensure that this is only rarely needed: this will require
a fundamental shift in the way that enforcement of the Equality
Act is thought about and applied.
Committee Chair said:
“Creating a fairer society where people are not treated
differently because of the colour of their skin, their sex,
gender, sexuality or religion is central to British values. In
our first four years, in inquiry after inquiry the Women and
Equalities Committee has heard abundant evidence of the
destructive impact discrimination has on people’s lives, as well
as the heavy cost that puts on society and public services. One
thing is absolutely clear: the burden of enforcement must shift
away from the individual. We need a fundamental shift in
approach, and our report shows how to do it.”
The Committee’s work in a range of areas has shown that
individuals have difficulties enforcing their rights under the
Act and has questioned the effectiveness of the EHRC: inquiries
on pregnancy and maternity
discrimination, transgender
equality, disability and the built
environment, workplace dress
codes, older people and
employment and sexual harassment in the
workplace all identified widespread problems with
enforcement.
The report’s main recommendations are:
- Develop a
‘critical mass’ of cases to inform employers and organisations
about their legal duties and make adherence to existing equality
law a priority for all organisations;
- Move away from
relying so heavily on the current model of using individual
litigation to create precedents;
- Make
obligations on employers, public authorities, and service
providers explicit and enforceable;
- Ensure that all
who have powers to change the way in which employers, public
bodies and service providers operate use their powers to
eliminate discrimination and to advance equality;
- The EHRC must
refocus its work and be bolder in using its unique enforcement
powers.
Committee Chair said:
“Employers and service providers are not afraid to discriminate,
knowing that they are unlikely to be held to account. We need a
critical mass of cases to build a culture where compliance with
the Equality Act is the norm.”
“The EHRC must overcome its timidity. It has unique powers,
limited resources and must use them for maximum impact. It should
make regulators, inspectorates and ombudsmen not only key
partners in creating a critical mass of enforcement action but
also key targets for enforcement action when those same
regulators, inspectorates and ombudsmen fail to meet their own
equality duties.”
The Committee recommends that the Government’s Labour Market
Enforcement Director should play a fundamental role, alongside
the proposed new single labour market enforcement body: if such
bodies acted consistently on their obligations, then the EHRC
could become the strategic enforcer that it should be.
Finally the report recommends that the Government must also make
this fundamental shift in the way that enforcement of the
Equality Act is thought about and applied. Committee Chair
said:
“Above all, the Government must act on its own obligations. It
must embed compliance and enforcement of the Equality Act into
its most significant strategies and action plans. That it has not
yet done so in its recent efforts to improve the quality of work
– where stopping discrimination is so clearly an essential
precondition to any improvements – beggars belief. Our report
sets out exactly what needs to be done, and we look forward to
hearing how the Government plans to act on this.“
Notes
-
· Disability
rights activists Esther Leighton And Doug Paulley gave evidence
to the inquiry and have extensive experience of enforcing their
rights through the courts see written evidence
submissions here and here. Please contact
via parrattl@parliament.uk 07917
488978 for interviews.
Full conclusions and recommendations here:
Key conclusions and recommendations below. NB These are
selective; full list at end of report.
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.
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 bymaking 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)
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)
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)
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.
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)
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)
Individual action in Courts and Tribunals
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)
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.
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 ordersthat require
organisational change and to make wider recommendations where
this can support change within the wider sector
