Scotland: “Disappointing” enforcement of equality laws
The Equality and Human Rights Commission (EHRC) and public bodies could do more to encourage compliance with equality laws, says the Women and Equalities Committee of the House of Commons. The burden on individuals facing discrimination is too high.
It published its report on enforcing the Equality Act 2010, the law and the role of the Equality and Human Rights Commission on 30 July 2019. The Report criticises the EHRC which should be setting the standard for others to follow, which it says does not appear to have been the case.
It concludes that employers and service providers are not afraid to discriminate, knowing that they are unlikely to be held to account despite clear obligations on them and public bodies. Many organisations do not meet the obligations because the current approach relies on an individual’s resort to civil action; so, often, failures go unchallenged. A fundamental shift in the way that enforcement of the Equality Act is thought about and applied is required.
Public bodies including regulators and inspectorates are bound by non-discrimination provisions in the Equality Act and by public sector equality duties. The Report says evidence shows varying levels of adherence. It calls for far-reaching change in the approach to the enforcement role of the Equality and Human Rights Commission which must significantly increase the volume and transparency of its enforcement work, publicise that work and reduce its reliance on individual complainants.
The Report recommends that the EHRC publish data on its enforcement activity including summaries of cases, with information on the outcomes as a deterrent. It notes that if organisations do not see the Equality Act being robustly enforced, then a key driver for equality 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 which is needed to take such action.
It recommends a joined-up approach between the EHRC and the Government Equalities Office. The EHRC must review its assessments as to whether the threshold for suspecting an unlawful act is met in line with the law and that, if necessary, the law should be changed if the EHRC struggles to meet the threshold. There should also be a consultation with a view to a government cost indemnity scheme for strategically important cases.
To supplement the work of the EHRC, public bodies and all enforcement bodies (including regulators, inspectorates and ombudsmen) should be using their powers to secure compliance with the Equality Act in the areas for which they are responsible to combat areas such as equal pay, direct discrimination and making reasonable adjustments associated with disabilities.
The Report says that government departments should be under a legal duty to ensure that the enforcement bodies for which they are responsible are using their powers to secure compliance.
The Report also reiterates recommendations it previously made in the Women and Equalities Committee’s inquiry into sexual harassment in the workplace that:
- there should be a mandatory duty on employers to protect workers from harassment and victimisation, that breach of the duty should be an unlawful act enforceable by the EHRC and carry substantial financial penalties. The duty should be supported by a statutory code of practice on sexual harassment and harassment at work which sets out what employers need to do to meet the duty; and
- a specific duty under the Public Sector Equality Duty should be introduced requiring relevant public employers to conduct risk assessments for all unlawful harassment and victimisation in the workplace, and to put in place an action plan to mitigate those risks. Action plans should set out how cases will be investigated and include guidance on penalties for perpetrators.
In relation to services supporting survivors of domestic and sexual abuse, a dedicated Code of Practice, with case studies drawn from organisations, should be introduced.
The outcome of the cost/benefit analysis of individual enforcement in discrimination cases can be a disincentive to people facing discrimination. In addition to review and refocus of legal aid and public benefit schemes, the Committee recommends publication of judgments (this already happens in Scotland) and that the Government bring forward legislation to make damages for discrimination claims more punitive in both employment tribunals and in civil courts. It also recommends legislation to empower both employment tribunals and courts to make remedial orders that require organisational change, and to make wider recommendations where this can support change within the wider sector be brought forward.
We now await the Government’s response to the Report and recommendations which swiftly follow its recommendations on the use of non-disclosure agreements in harassment and discrimination cases last week. Refocus of the enforcement activities of the EHRC and public sector bodies seems to be high on the agenda of change, although it is not likely we will see any new legislation soon.
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