A report by the Women and Equalities Committee (WEC) has recommended a fundamental shift in the way that discrimination claims are brought so that individuals do not carry the burden of enforcing their rights. Instead, the WEC has stated that the Equalities and Human Rights Commission (EHRC) must overcome its timidity and be bolder in using its existing powers.
The report, Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission, urges the human rights watchdog to bring more cases and better publicise its enforcement work so that employers and other organisations are not complacent about equality. The WEC contends that employers are currently unafraid to discriminate because they know that they are unlikely to be held accountable.
While individuals would still have the right to challenge discrimination in the courts, the WEC hopes that this change in approach would make such litigation increasingly rare.
The report's key recommendations are as follows:
- The EHRC must refocus its work and be bolder in using its unique enforcement powers.
- The EHRC should:
- publish data on its enforcement activity;
- assess its enforcement policies and practices to ensure that the threshold for suspecting an unlawful act is no higher than required by law; and
- publicly set out the types and level of evidence that will allow it to meet that threshold.
- The government should launch a consultation on introducing a scheme to indemnify the EHRC against the risk of high costs for strategically important cases in order to help the EHRC bring important test cases which develop the law.
- In relation to the employment tribunal system, the government should legislate to make exemplary damages for discrimination claims – which punish the wrongdoer rather than compensating the victim – more widely available. It should also empower employment tribunals to make remedial orders requiring organisational change and wider recommendations to support change in a particular sector.
- The government should work with the courts and tribunals service to issue guidance to judges and lawyers on when refusing to enter a settlement or non-disclosure agreement will 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. While costs orders against a claimant in the employment tribunal are rare, the WEC reports that some employers are inciting fear over costs as a tactic to push for settlement.
- Each government department should 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 discrimination rights in the sector for which they are responsible.
This report represents more radical thinking from the WEC, which in 2018 called for a mandatory duty on employers to protect their workers from harassment and victimisation, to be supported by a statutory code of practice and enforced by the EHRC (for further details please see "Workplace sexual harassment – Women and Equalities Committee urges radical reform"). This is reiterated in the current report. A limited version of this proposal was included in the recently published consultation on sexual harassment in the workplace.
Does this mean that employers will face a tranche of claims bankrolled by the EHRC? The WEC certainly recommends increasing the burden of responsibility on the EHRC to take enforcement action. But, leaving aside the proposal for funding of strategically important cases, this aspiration seems rather optimistic considering the EHRC's resourcing issues.
The report notes that the EHRC "has faced significant budget and staffing reductions in recent years" – something of an understatement given that its budget has been slashed from £70.3 million in 2007 to £18.55 million in 2019 and its staff numbers more than halved from 530 in 2010 to 206 in 2019. A separate tailored review of the EHRC did not come to a conclusion on whether its budget was adequate. The WEC recommends that the government and EHRC work together to set out the case for a new budget, once a clear purpose and proprieties have been set. The report also suggests that the effectiveness of the EHRC "is not solely linked to funding levels", pointing to more "organisational confidence" and better use of existing powers as the solution, rather than more cash.
With a new prime minister getting his feet under the table at Number 10 and no fewer than seven consultation exercises on employment matters already underway, not to mention Brexit, it remains to be seen whether reforming equality law will be a priority for the new administration.
For further information on this topic please contact Sophie Jamieson at Lewis Silkin by telephone (+44 20 7074 8000?) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.