In an effort to update UK discrimination law, the Women and Equalities Committee of the UK Parliament (the Committee) has published its report following a yearlong inquiry into the legal aspects of enforcement across all protected characteristics and the effectiveness of the Equality and Human Rights Commission (EHRC) in fulfilling its enforcement role. Here we outline the report’s key recommendations and proposals.
Following the launch of an inquiry in July 2018 into the existing legislative framework and role of the EHRC, the Committee in its report of 30 July proposes radical changes to the way rights under the Equality Act 2010 (EA 2010) are enforced. The Committee sets out its concern that repeated breach of the EA 2010 occurs without challenge by regulators and governmental bodies, thereby creating a culture of normalisation and acceptance of discriminatory behaviour. While the Committee recognises that enforcement does occur to some extent, it concludes that the impact of such enforcement is insufficient to address systematic or routine discrimination experienced by victims. During the inquiry, complainants raised concerns with regard to enforcement of rights and protections in a number of areas, including pregnancy and maternity discrimination, transgender equality, disability, workplace dress codes, age discrimination, and sexual harassment in the workplace.
The Committee’s findings and proposed recommendations are underpinned by an important shift in culture, with the suggestion that in dealing with discrimination issues, the onus should lie with employers, public authorities, and service providers, rather than with individual employees as is currently the case. The EA 2010 sets out victims’ rights as regards to enforcement, including the legal avenues an individual must pursue to bring an equality claim before the courts, but the report suggests these are out of date and “no longer fit for purpose”. Notwithstanding its critique, the Committee recognises that individuals should retain the right to bring discrimination cases, but intends that the framework of protection and enforcement that sits behind those individual rights would be sufficient that such claims should rarely need to be made in practice.
The Committee’s key recommendations include:
- Shifting the burden of enforcement from individuals to the EHRC.
- Encouraging the EHRC to make greater use of its enforcement powers as enacted by statute to publicise its work. It anticipates that the publicising of work and efforts would act as a deterrent to employers who currently are comfortable in the knowledge that enforcement by the EHRC is minimal enough to mitigate against risk of enforcement. Similarly, it suggests that strong enforcement action would encourage individuals to speak up, thereby providing the EHRC with the necessary evidence to pursue unchecked employers.
- Introduction of a government backed scheme designed to indemnify the EHRC against the legal costs of pursuing strategically prominent cases – this in itself would help develop case law.
- Subjecting each governmental department to a legal duty to ensure that enforcement bodies (including regulators and ombudsmen) are utilising and invoking their powers sufficiently to secure compliance with EA 2010 across their respective sectors.
- Shifting away from relying on individual complaints as the enforcement method as many employers continue to go unchallenged under the current individualised approach.
- Developing 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. The Committee disagrees with the notion that there are many examples of case law that clarify the obligations on employers, service providers, and public bodies. Rather, it proposes that building a critical mass of cases would foster a culture where compliance with the EA 2010 is the norm rather than the exception.
- Recommending that the EHRC assess 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 law. It should publicly set out the level and types of evidence which allows it to meet such a threshold.
- Encouraging the EHRC to adopt a leadership role as one of the UK’s national equality bodies and human rights institutions. It should not be following the minimum required; rather it should be setting the standards for others to follow.
- Advocating for the establishment of a newly dedicated enforcement team which would mark a significant change in direction.
- Recommending that the Courts and Tribunal Service publishes the judgments in county court discrimination cases online, with suitable and appropriate use of anonymity to protect individuals.
- Requesting that the government work with the Courts and Tribunal Service to issue guidance to judges/legal professionals on when refusing to enter into a settlement agreement or nondisclosure 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. Such recommendations come as a result of allegations raised by claimants that employers are pursuing litigation tactics to incite fear in driving individuals to agree to settlement terms such as confidentiality clauses.
- Making exemplary damages for discrimination claims more widely available in both employment tribunals and in county courts, which punish the wrongdoer rather than compensate the victim.
- Empowering employment tribunals and county courts with the mechanisms to make remedial orders requiring organisational change among wider recommendations supporting change across a particular sector.
While it is clear that the Committee’s latest recommendations are designed to discourage systematic breach of equality laws and encourage the EHRC to adopt a stricter approach to its enforcement role, the report provides limited practical guidance for employers. We expect the government’s response will set out with more specificity what will be required of the EHRC and employers going forward. From a practical perspective, and in order to mitigate risk, it is prudent for employers, public authorities, and service providers to ensure they have robust internal policies and procedures are in place to address equality concerns raised by employees, and that such concerns are acted on promptly and thoroughly.
It remains to be seen whether the EHRC is able to “overcome its timidity”, as the report claims, to use its unique powers and limited resources for “maximum impact”. There is very clearly a resourcing issue, which is likely to mean that for the time being, the EHRC will allocate its resources towards tackling the most strategically important cases and issues.
We will continue to provide updates on any new proposals in due course.