MPs launch inquiry into enforcement of the Equality Act

The Women and Equalities Committee today launches an inquiry into the enforcement of the Equality Act 2010 – legislation which is designed to “provide a legal framework to protect the rights of individuals and advance equality of opportunity for all”.

Individuals can take legal action to enforce their right not to be discriminated against, mostly through employment tribunals and county courts. The Equality and Human Rights Commission (EHRC) also has duties and powers to enforce the Act and it has stated that it wishes to become a more ‘muscular’ regulator.

However, 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 employmentand sexual harassment in the workplace all identified widespread problems with enforcement.

The Committee has already made recommendations to improve the enforcement of the Equality Act in specific areas. These include:

• extending time limits for bringing certain employment cases (pregnancy & maternity and sexual harassment reports);
• adequate financial penalties (workplace dress codes and sexual harassment reports);
• increased use by the EHRC of its enforcement powers (workplace dress codes, older workers); and
• greater action by regulators to tackle discrimination in the organisations they oversee (pregnancy and maternity, sexual harassment in the workplace)

The Committee now wants to know what more needs to be done to achieve widespread compliance with the Equality Act 2010 for all those with rights under it.

The Committee calls for written evidence on:

• How easy it is for people to understand and enforce their rights under the Equality Act;
• How well enforcement action under the Equality Act works as a mechanism for achieving widescale change;
• How effective and accessible tribunals and other legal means of redress under the Equality Act are, and what changes would improve those processes;
• How effective current remedies for findings of discrimination are in achieving change, and what alternative or additional penalties should be available;
• The effectiveness of the Equality and Human Rights Commission as an enforcement body, including:
  • Whether the powers the Commission has are sufficient and effective;
  • Whether the Commission is using those powers well;
  • Whether changes are needed to the Commission’s approach to using its enforcement powers as set out in its policies (such as the strategic litigation policy and compliance and enforcement policy) or as implemented in practice, and the way it identifies and selects legal cases to lead or support;
  • Whether the Commission uses enforcement action appropriately and effectively as part of its wider strategies for advancing equality.
  • Whether the Commission’s role as an enforcer is widely known and understood and acts as a deterrent to discrimination.
• Whether there are other models of enforcement, in the UK or other countries, that could be a more effective means of achieving widespread compliance with the Equality Act 2010, either overall or in specific sectors.

Chair of the Women and Equalities Committee, Maria Miller MP, said:

“Many of our inquiries inevitably focus on the problems with enforcement of equality legislation and critique the role of the EHRC. This inquiry will provide the opportunity for a more systematic review of the causes and identify possible solutions.

“We want to look at whether the Equality Act creates an unfair burden on individual people to enforce their right not to be discriminated against. How easy is it for people to understand and enforce their rights? How effective is enforcement action? Are tribunals accessible and remedies for findings of discrimination effective? Is the EHRC able to do its job properly? Those are just some of the questions we are seeking to answer. I would encourage people to submit evidence to our inquiry if they are able to provide more information on those points.”

Written submissions to the inquiry can be made via the evidence portal on the Committee’s website. The deadline is 5 October 2018.

  

Guidance for individuals and organisations giving written or oral evidence to House of Commons Select Committees is available on Parliament’s webpages.  

ENDS

BACKGROUND

The Women and Equalities Committee has made a numerous of recommendations on enforcement of the Equality Act 2010 across several reports. These include:

Extending time limits for bringing cases:

• Pregnancy & maternity: There is clear evidence of a need to extend the limit for new and expectant mothers. We therefore endorse the Justice Committee’s recommendation that the Government review the three-month time limit for bringing a claim in maternity and pregnancy discrimination cases. We suggest that six months would be a more suitable time limit. (Paragraph 143)
• Sexual harassment in the workplace: The Government should extend the time limit for lodging a tribunal claim in cases of sexual harassment to six months and pause the countdown until employers’ internal complaint and grievance procedures are completed. This should be done as part of a wider review of the time limit in all discrimination cases. (Paragraph 92)

Adequate financial penalties:

• Workplace dress codes: The Government must substantially increase the financial penalties for employers found by employment tribunals to have breached the law. Penalties should be set at such a level as to ensure that employees are not deterred from bringing claims, and to deter employers from breaching the legislation.(Paragraph 85)
• Sexual harassment in the workplace: The Government should improve the remedies that can be awarded by employment tribunals and the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages and there should be a presumption that tribunals will normally require employers to pay employees’ costs if the employer loses a discrimination case in which sexual harassment has been alleged. (Paragraph 85)

Increased use by the EHRC of its enforcement powers:

• Workplace dress codes: The Equality Act 2010 was intentionally drafted in a way which relies on test cases being brought to build up a body of antidiscrimination case law. Far fewer of these cases are being brought, however, following the introduction of employment tribunal fees in 2013. We heard that reductions in funding for the Equalities and Human Rights Commission have also had an impact, reducing the opportunities for individuals, often in insecure employment, to obtain support when bringing such a claim. This drop in employment tribunal claims poses an obvious threat to the effectiveness of antidiscrimination law. It is extremely important that a mechanism exists whereby test cases can be brought where employment tribunals may be otherwise unaffordable or unattractive for potential claimants.(Paragraph 91)
• Workplace dress codes: The Government must ensure that the Equality and Human Rights Commission is able to play an increased role in providing support and funding for antidiscrimination test cases and appeals brought before employment tribunals and courts. The Women and Equalities Committee will want to maintain a watching brief in this area as part of its ongoing scrutiny of the work of the EHRC. (Paragraph 92)
• Disability and the built environment: We recommend that the Equality and Human Rights Commission undertake a formal investigation and/or assessment into the compliance of the Planning Inspectorate with the Equality Act 2010. (Paragraph 70)
• Older people and employment: The Equality and Human Rights Commission is right to be concerned by the low numbers of age discrimination claims being brought to it, but given its ambition to become a ‘muscular regulator’ we are surprised that it is not taking more action to remedy this. We recommend that the Commission develop a clear plan to tackle age discrimination in employment. This plan should include:

a)      Action to tackle discrimination in recruitment and the recruitment industry, using the evidence of age discrimination in job advertising that it holds as a result of its enforcement work in this area to identify the sectors with the worst record;

b)      An agreement with the Equality Advisory Support Service to identify and refer claims of age discrimination in employment as a priority for legal support by the Commission; and

c)       Action to examine whether the public sector is complying with its duty to have due regard to the need to eliminate age discrimination under the Public Sector Equality Duty. (Paragraph 29)

• Older people and employment: The failure of the Government to include action to improve compliance with the Equality Act 2010 in its Fuller Working Lives strategy is a significant omission. We recommend that it engage with the Equality and Human Rights Commission with a view to agreeing enforcement actions that can be included as specific commitments in the strategy. (Paragraph 30)

Greater action by regulators:

• Pregnancy & maternity: The Government must take action both to relieve the burden of enforcement on women and to encourage more enforcement action by women. It must set out in detail in its response to this Report the measures it will take to ensure that pregnancy and maternity discrimination law is properly enforced. It should consider:

1. requiring the Health and Safety Executive (HSE) to play a greater role in ensuring that employers comply with their obligations to provide a safe working environment for new and expectant mothers;
2. commissioning research on how best to encourage greater enforcement by women where cases cannot be resolved informally; and
3. commissioning research on the effectiveness of alternative dispute resolution procedures such as conciliation in helping employers and employees to resolve disputes informally. (Paragraph 163)

• Sexual harassment in the workplace: Regulators are uniquely placed to oversee employer action to protect workers from sexual harassment. This is a health and safety issue, and several regulators have responsibility for overseeing this aspect of employers’ activities. The Health and Safety Executive in particular must take up its share of the burden of holding employers to account if they fail to take reasonable steps to protect workers from sexual harassment. This could include issuing guidance on the actions that employers could take, including undertaking specific risk assessments, and investigating reports of particularly poor practice. (Paragraph 60)
• Sexual harassment in the workplace: Regulators who do not take steps to address sexual harassment in their sectors are failing in their Public Sector Equality Duty. The Government should require all regulators to put in place an action plan setting out what they will do to ensure that the employers they regulate take action to protect workers from sexual harassment in the workplace. (Paragraph 61)
• Sexual harassment in the workplace: Regulators must make it clear that sexual harassment by regulated persons is a breach of regulatory requirements by the individual and their organisation, that such breaches must be reported to the appropriate regulator, and that such breaches must be taken into account when considering the fitness and propriety (or equivalent) of regulated individuals and their employers. Perpetration of or failure to address sexual harassment in the workplace must be recognised as grounds for failing a ‘fit and proper person’ test or having professional credentials removed. Regulators should also set out the sanctions for perpetrators of sexual harassment in their sectors. The victim themselves, however, should not be under any obligation to report, nor should they face sanctions for failing to report to their regulator. (Paragraph 62)

FURTHER INFORMATION:

Committee membership:

Mrs Maria Miller MP (Conservative, Basingstoke) (Chair)

Tonia Antoniazzi MP (Labour, Gower)

Sarah Champion (Labour, Rotherham)

Angela Crawley MP (Scottish National Party, Lanark and Hamilton East)

Philip Davies MP (Conservative, Shipley)

Vicky Ford MP (Conservative, Chelmsford)

Kirstene Hair MP (Conservative, Angus)

Eddie Hughes MP (Conservative, Walsall North)

Jess Phillips MP (Labour, Birmingham, Yardley)

Mr Gavin Shuker MP (Labour (Co-op), Luton South)

Tulip Siddiq MP (Labour, Hampstead and Kilburn)