Women and Equalities Committee 

Oral evidence: The work of the Equality and Human Rights Commission, HC 852

Wednesday 30 November 2022

Ordered by the House of Commons to be published on 30 November 2022.

Watch the meeting 

Members present: Caroline Nokes (Chair); Elliot Colburn; Dame Caroline Dinenage; Carolyn Harris; Rachel Maclean; Anum Qaisar and Jamie Wallis

Questions 1 - 57

Witnesses

I: Baroness Falkner of Margravine, Chairwoman at Equality and Human Rights Commission; Marcial Boo, Chief Executive at Equality and Human Rights Commission and Melanie Field, Chief Strategy and Policy Officer at Equality and Human Rights Commission.

Written evidence from witnesses:

– [Add names of witnesses and hyperlink to submissions]

Examination of witnesses

Witnesses: Baroness Falkner of Margravine, Marcial Boo and Melanie Field.

Chair: Good afternoon, and welcome to this afternoon's session of the Women and Equalities Committee. We are looking at the work of the Equality and Human Rights Commission. Can I thank our three witnesses for coming in to see us this afternoon? I am going to go straight into questions with the first one from Carolyn Harris, please.

Q1                Carolyn Harris: Thank you, Chair. I will forgo the preamble and get straight to the point. You told us you were assessing the evidence of our menopause report, and evidence from elsewhere, and how the EHRC can best help employers to understand and meet their legal obligations. How is that going?

Baroness Falkner of Margravine: We are talking to other regulators in that space, but can I introduce Melanie Field, who is our policy and strategy lead? Melanie will fill us in on that particular. We are trying to divide up to give you answers as quickly as possible.

Melanie Field: Thank you. Of course, you published your report in July and we wrote back saying that we were looking at all of this and how we could best help employers to understand their obligations. We have been talking, as our chairwoman said, to other regulators, including the Health and Safety Executive, about the types of materials or support that employers might find helpful. We are in the process of considering items for our business plan next year, because, obviously, at the time the Committee reported we had already set out our business plan for the current year. This is something we will be looking to pick up in the next business year.

We have also been looking at the broader issues facing women going through the menopause, so the question of access to appropriate advice and treatment. We really welcome the fact that the Government have published a women's health strategy and the establishment of the UK menopause taskforce. Those are other issues under our health and social care priority that we will be looking at under our business plan for next year.

Q2                Carolyn Harris: That is brilliant. As co-chair of the Government's taskforce on the menopause, it is really good to know that you are looking at what we are going to be doing, but it is not just that body which is doing work. This Committee has done a lot of work, I chair another group that is doing a lot of work, and there are a lot of media campaigns which are doing a lot of work. What I am saying is there is a lot of good practice out there and we really should not be reinventing the wheel. It would be really good if you were to actually talk to all of these organisations with a view to coming forward with amendments and suggestions which would reflect what we already know works and what we already know does not work. That would be really useful.

Baroness Falkner, have you had any discussions with the Government about reforms of the Equality Act 2010?

Baroness Falkner of Margravine: We have written to Government extensively over several different aspects of Equality Act reform proposals and so on. We have several discrete areas where we have sought change. One is an area of the 2006 Act that we wish to expand—this is to do with the human rights mandate—and we have set out our priorities. We want to advocate for section 28(8) to be implemented. On the 2010 Act, we have also sought some changes. One is the ability to reference fines for institutions that are not adequately complying with the actions they need to do to reduce the gender pay gap.

In August we wrote to the then Secretary of State Liz Truss requesting a number of amendments to our framework document to strengthen existing safeguards on appointments to the board. We are working on a range of areas in terms of reform of the Equality Act or seeking some powers that already exist but have not been implemented and other clarifications on the Act.

Q3                Carolyn Harris: I am going to hand back to the Chair, but before I do so, can I just ask if you have met Dame Lesley Regan yet? She is the Government’s menopause champion and has been in post for quite a few months now.

Baroness Falkner of Margravine: No, I do not believe we have.

Carolyn Harris: Okay, thank you.

Q4                Chair: Marcial, on the menopause issue, Melanie just referred to it being work for the next business plan. Did the slowness with which you got your budget this year push that back?

Marcial Boo: We published a business plan for this financial year. That is the business plan we are delivering. As Melanie says, obviously, through the year there are a lot of new things that come, events that take place, and action that we feel is necessary. In some cases, obviously, we can take action within the year, but if it is a big bit of work, we want to ensure it is scoped properly, it is planned properly and we talk to stakeholders. That is what we are planning in respect of work on the menopause. The EHRC board is considering the business plan for the next financial year in January, so in just a few weeks’ time, and then we will let this Committee know about the work we are planning to do.

Q5                Chair: Baroness Falkner, taking you back to the Equality Act, and apologies if I got this wrong, you referenced areas of the Act that had not yet been enacted. Would you consider section 14 as one of the parts of the Equality Act that should be enacted?

Baroness Falkner of Margravine: Could we have Melanie take that, please?

Melanie Field: There are a number of provisions, as you will be aware, that have not been commenced or implemented in the 2010 Equality Act. We have, in the context of menopause, been looking at whether commencement of section 14 might assist women in that circumstance. Most of the tribunal cases that have been argued have been on the basis of disability. I think it is questionable whether a combined age and sex discrimination claim might provide a remedy, but we need to have more discussions. The Discrimination Law Association recommended that that might be a solution in this case. That is something we are looking at, having further discussions with legal practitioners who can tell us what the obstacles are to bringing these cases.

Q6                Dame Caroline Dinenage: Very quickly, to bring us back to the original answer about the potential reforms to the Equality Act and your most recent comments, Melanie, if the Government did decide to reform the Act, to what extent would you be involved in that? Would you be able to influence which bits were going to be reformed? Would you be able to stop bits being reformed that you felt did not warrant it? What sorts of powers do you have in that respect?

Melanie Field: We have a statutory duty to advise on the effectiveness of the Equality Act and on the effects of potential legislative changes on both equality and human rights. We have an advisory role but, obviously, we do not have a decision-making role because we are independent of Government.

Baroness Falkner of Margravine: After writing to the then Minister for Women and Equalities, she did recommend that we open discussions with the Cabinet Office, which we are undergoing at the moment.

Q7                Rachel Maclean: I have some questions about your three-year strategic plan, and this is the first time I have questioned you on this Committee so I hope you will forgive me if I am covering things that perhaps have been covered in previous sessions. You have a strategic plan, which I understand you have published. Obviously, you have to look across all the nine protected characteristics. How did you decide your six priority areas in your strategic plan? You cover workplace, children and young people, health and social care, and so on. How did you come up with those areas?

Baroness Falkner of Margravine: We had a public consultation, as we are required to do, between August and September 2021. We published a draft strategic plan and used an online survey to gather feedback. We also proactively engaged with stakeholder groups to dig a little bit deeper. We examined data and evidence, drew on published intelligence, case law, feedback from stakeholders and our own historical work, which aligned with our powers. We were gratified by the high level of engagement that we got, with 880 responses. Interestingly, a large number were from individuals. We normally tend to get them from organisations, but it was very gratifying, and we built on that and identified the six areas.

Q8                Rachel Maclean: Fantastic. As well as that, did you look at the legal cases that you have been supporting? Did you look at complaints that had been lodged with your organisation? Did you take that into account and, if so, how?

Baroness Falkner of Margravine: Yes, indeed. We examined our own data, cases that had come to the equality advisory service, litigation, published intelligence, think-tanks and other organisations that collate data, and case law, particularly where we felt there were a higher number of breaches of the Equality Act. Occasionally, you have to look at what is happening on the ground to determine to what extent a problem that you thought did not exist two or three years ago is coming to the fore.

Q9                Rachel Maclean: I get that. You said, I think, that you plan to be quite agile because you need to, obviously, align to developments in the country.

Baroness Falkner of Margravine: Yes.

Q10            Rachel Maclean: With the nine protected characteristics, do you have a sense of how much time has been taken up by each one? Do you track your data in that way?

Baroness Falkner of Margravine: Marcial, would you like to pick that up?

Marcial Boo: Yes, we definitely do that. I would say we probably spend a little bit more resource on disability issues than some of the other protected characteristics. As a rule of thumb, we spend about 10% of our resource, our time, on the protected characteristics of sex, race and age, and a bit more on disability. It is also important to note that many of the issues that we deal with cover more than one protected characteristic. If we are dealing with digital exclusion, for example, or vulnerable people in one setting or another, they may both have the characteristic of age and disability, and obviously sex as well. We make sure that we cover all the protected characteristics we are responsible for.

Baroness Falkner of Margravine: Would you like me to give you a bit more granular detail?

Rachel Maclean: Yes, if you can.

Baroness Falkner of Margravine: For example, in terms of our regulatory activity in the last year—I am talking about 2022—in our legal casework we have done about 30% on disability, 10% on sex, 10% on race, roughly 20% on human rights, roughly 10% on religion belief, another 10% on disability related to human rights, and so on. We try to keep quite detailed figures, but we can never be 100% sure of our accuracy because cases are also ongoing. There is work already ongoing and there is quite a lot that, until it is complete, cannot come into the data.

Q11            Rachel Maclean: Yes, I understand that. Do you publish that breakdown anywhere on your website?

Marcial Boo: No, we do not because of the difficulty of having ongoing cases with sometimes three or four protected characteristics. In our annual report we do report very comprehensively on all the work we have done in the previous financial year, including by protected characteristic.

Q12            Rachel Maclean: Clearly, you are driven by some reactive work and the fact that cases are being lodged. You said you were spending most of your time on disability, sex, race and age, but to what extent are you able to be proactive and take a horizon-scanning look to get a sense of and really know whether that is actually where the need is? That is what is driving you, but there could be another protected characteristic somewhere in the list. I cannot remember what the others are, but there are five others.

Chair: Maternity.

Rachel Maclean: Is maternity a protected characteristic?

Marcial Boo: Yes.

Q13            Rachel Maclean: Thank you. It may be that that one is being neglected somehow. How would you ensure or know that you really are allocating the resources equally?

Marcial Boo: We do this in a number of ways. First of all, we set out a business plan for the year that is public, that people can comment on and, indeed, we engage with all kinds of stakeholders, including civil society, all the time, every week. We get very direct feedback if there are stakeholder groups that believe we are not focusing on issues that are of importance to them. That is one thing.

Secondly, internally, we have mechanisms for drawing in intelligence from case law, from Parliament, from the media, from international good practice and from academia on the kinds of issues that are emerging. Obviously, through covid some new issues came up and now we have the cost of living crisis, too. All of this is a dynamic process which enables us to ensure we are assessing the right things. Obviously, as I have mentioned, we are going to be having a new business plan for the next financial year and that is a further opportunity for us to take stock and make sure we are using our resources effectively.

Q14            Rachel Maclean: In terms of your strategy, then, how are you going to measure your success, and how are your stakeholders going to be able to measure your success?

Baroness Falkner of Margravine: We are very aware that the Committee in its report of 2019 wished us to be more agile and able to see more clearly where our impact was. We are attempting quite hard to disaggregate where we are successful or not, and to measure our impact. I can give you examples of some of the things we have done over the last seven months of this current year.

We published hair discrimination guidance on 27 October 2022, which was long requested. Our inquiry into the treatment and experience of low-paid ethnic minority workers in health and social care was published in June. We launched a formal investigation into Pontins, which was about discrimination against Gypsies, Romany and Travellers. We launched our sexual harassment prevention toolkit in UK hospitality in April. Also, in April we published guidance for single-sex providers on the single-sex exemptions of the Equality Act, which was quite singular and a significant piece of work.

We monitor Government Departments on the public sector equality duty. In that context, we signed a section 23 agreement with the Home Office in April to monitor the hostile environment. We are working with the Department for Work and Pensions on reasonable adjustments for people with learning difficulties and autism. We also undertake high-level, high-profile enforcement work. I could go on, but I do not know what level of detail you would like.

Q15            Rachel Maclean: You have given me a really good flavour and I think we would all agree that it is really positive. What I am trying to get to is how do we all know that that is a success? What is your top-line goal? What are your KPIs, and how do we know you are reaching them or where there are any gaps?

Baroness Falkner of Margravine: I will allow Marcial to come in in a minute, but if I can just give you an overview. In terms of real-world demonstrable impact, clearly, those things I have just told you about are the real-world demonstrable impact things that capture the media, but attribution of impact is quite hard given the very wide range of responsibilities we have. Our successful legal cases are one area where we can see, with a very clear line of vision, real tangible change for individuals. For example, we felt there was a need to do more work on race, so earlier this year we established our race legal support fund. We have the data on the number of cases that are currently open and so on. Marcial, would you like to fill in the gaps there?

Marcial Boo: Thank you. Yes, helping others to create a fairer society in Britain is the impact that we want to achieve and our goal. Clearly, that is quite a hard thing to measure. The responsibility given to us by Parliament is to set the regulatory environment that will ensure that all those with responsibilities—duty bearers in the jargon: employers and public bodies—understand equality law and put it into practice. Regardless of the sector they are in, they know that there is an equality watchdog, that we are prepared to take action, and help them to comply with the law. Obviously, the way in which we measure that is at an individual level, with the specific pieces of work that Kishwer has mentioned. We make sure that other people in the relevant sectors know about hair discrimination guidance and litigation cases so that they themselves can comply with the law.

We had 235 separate media mentions in the case of hair discrimination guidance, including in the United States. We have that guidance in all schools so that they can take stock of their policies and ensure that they are complying with the law. The same is the case on individual litigation on race discrimination and other matters. We are working with the England and Wales Cricket Board and also with the Yorkshire county cricket club, for example, to ensure that collectively, with those bodies, we stamp racism out of cricket. Whether in respect of cricket or in schools, the goal is to make the country fairer, but to do this we need to work with others, including providers of services and employers, to make sure that happens.

Q16            Chair: Can I just interject? Kishwer, you referenced the media. When you came before us for the pre-appointment hearing, you suggested that media reports would be an example of the commission getting better at being visible, in many ways trumpeting its successes. Marcial, you just referenced, was it 75 media—

Marcial Boo: Two hundred and thirty-five.

Chair: Oh, 235, sorry—a huge number of media reports around hair guidance. Can you just explain to me how the media reporting is going and whether you have seen any trends of favourable or unfavourable reporting of the EHRC in the media?

Marcial Boo: Yes, the hair discrimination guidance had 80% positive feedback from media and social media, which is really exceptional. More generally, as you would expect from a regulator, the balance of comments is more neutral. There are sometimes negative comments and sometimes positive, largely there are a bunch of neutral comments in the middle, which is quite normal for regulatory bodies because we are rule setters.

Q17            Chair: Some people like them, some people do not. Is the number of overall mentions going up or down?

Marcial Boo: We have had 2 million hits on the website in the last year.

Q18            Chair: Media mentions?

Marcial Boo: That is not media mentions. We work in a space, as do you, where we are constantly in the media. In some cases, we have had particular spikes in media mentions.

Chair: Hair discrimination guidance, 235.

Marcial Boo: The hair discrimination guidance was a spike. We also had a spike in media mentions when we published the single-sex services guidance. We need to step back from the month-by-month mentions and take a look at the general trend.

Q19            Chair: Is that why it has dropped off the annual report?

Marcial Boo: No, it is not for that reason.

Q20            Chair: Why has it dropped off the annual report?

Marcial Boo: I do not know. I have the annual report here but I do not know what was in previous versions. We monitor our media mentions and we have a new website which is launching early in the new year. This is completely grist to the mill in terms of making sure that we know who is looking at our website, who is picking up our stories and who is actioning the recommendations. As I mentioned earlier, we need to cut through to those people who need to take action to improve fairness.

Q21            Chair: Should the number of media mentions be in your annual report?

Marcial Boo: I am very happy for it to be.

Chair: Okay. I am trying to get to the bottom of why it used to be and now it is not. You do not know.

Baroness Falkner of Margravine: I have statistics here. As an interesting overall metric, since December 2020, when I came in, our social media channels have gained more than 18,000 followers, so we are up to around 100,000. Overall engagement, which is quite an important metric and measured in comments, likes and shares, relative to just looking at something, has increased from 0.75 to 2.2. The industry standard is that between 1 and 5 is considered a very good engagement rate.

Q22            Chair: The world does not necessarily run on Twitter. What about mainstream media?

Baroness Falkner of Margravine: We have had a great deal of response in the mainstream media to our single-sex spaces guidance and our Afro hair guidance, frequently front page or front cover as well as on television and so on. The topicality of the issue is what tends to get picked up, but yes, we have been gratified by our media coverage.

More generally I want to make the point that being visible is not a goal in and of itself. The reason we wish to be visible is so that people know that we exist, that people know that we are there for them and that we can help. Our efforts in terms of the media and publicity are all directed to the aim that people know there is an equality regulator that defends equality and human rights and that we are there.

Q23            Rachel Maclean: Why have trade payables in your accounts—outstanding payable invoices on your books—more than doubled since the end of the last financial year?

Marcial Boo: This is in the annual report for 2021-22?

Rachel Maclean: It is the latest one that we have sight of, yes. I am comparing it with the previous financial year and the figure has doubled.

Marcial Boo: I have the annual report here but I am afraid I do not have the previous financial year so I cannot compare those two figures right now. I can absolutely assure this Committee that we manage our finances completely in line with managing public money. We are audited by the National Audit Office, of course. We publish all the figures in our annual reports and, as accounting officer, I sign them off and have no concerns about the way that we manage public money and I have confidence that everything is above board this financial year in respect of that specific question that you asked. I know that we are again spending our money in line with the objectives that we have been given, our statutory responsibilities, this financial year. I am happy to subsequently answer any specific questions if you have them.

Q24            Rachel Maclean: Okay. Obviously, this is a one-line item, but this is really about the money that you need to pay to the people that are supplying you with goods and services. The number is a lot higher and the trend is quite significant: it represents a doubling. I wondered if you had any thoughts about what the underlying reason for that would be.

Baroness Falkner of Margravine: We had to move quite swiftly with the impact of covid. Our IT systems were quite old and we had to move very swiftly to homeworking in that period. We had not anticipated a global pandemic and our IT team was incredibly stretched. It could have been related to this fact and transferring over the financial systems entirely to homeworking, which probably made a difference.

I wonder if I could pick up a point about very slow budget delegations. It may not be related to this particular point, but there is an overall problem on budget delegations.

Q25            Rachel Maclean: What do you mean by budget delegation?

Baroness Falkner of Margravine: For both this annual report planning period and the last, we have not had a formal budget delegation yet and we are now in November.

Q26            Rachel Maclean: This is the settlement from central Government to you?

Baroness Falkner of Margravine: That is right. As you would expect it to do, it inevitably impacts on your work because it creates a level of uncertainty, particularly when the media is consistently full of public sector cuts, more churn and more change. It has been for many years now, and it is deeply unhelpful. In an ideal situation, you would want a three-year delegation with some assurity.

Q27            Chair: Can I just interject on that? I am absolutely on your side when it comes to the budget and the length of time it took the Government to settle that. This is a question for Marcial: did that prevent you from paying your suppliers?

Marcial Boo: No.

Chair: Thank you.

Q28            Rachel Maclean: I would be grateful if you could write to us with the specific analysis of your supplier payments, explaining why they have been particularly slow, because actually you have a good record of paying your invoices in previous years.

Marcial Boo: Yes, I am very happy to do that and to bring the figures up to date for this financial year in so far as I am able to do so.

Rachel Maclean: Thank you very much. Those are all my questions, Chair.

Q29            Anum Qaisar: I thank the panel for joining us. In 2015 the Sub-Committee on Accreditation raised the control that the Secretary of State has over the EHRC’s budget. What has the Government said about the SCA’s new recommendation about the budget and the continued problems with the budget?

Marcial Boo: Yes, you are absolutely right, the Sub-Committee on Accreditation of GANHRI, the UN Global Alliance of National Human Rights Institutions, has again recommended that we have greater financial autonomy. That is something that we ourselves wish for. We want, at the very least, a separate identifiable budget line in the Cabinet Office accounts. The Paris principles of national human rights institutions are that many report directly to their Parliaments rather than parts of Government. Our statute sets us up to be part of Government, but we would like to have a separate line listed in the accounts so that what is paid to the Equality and Human Rights Commission and how it changes over time is visible. We have made that point repeatedly to Government, both prior to the most recent recommendations and since. Indeed, I raised them myself to Alex Chisholm, who is the permanent secretary of the Cabinet Office, and he gave me some assurance that this would be looked at.

Q30            Anum Qaisar: Are you convinced by that assurance?

Marcial Boo: We will have to wait and see. I am very much hoping that some of the problems that we experienced in our financial delegation this financial year, which the Chair is well aware of, will not be experienced in the next financial year. I also got that assurance from Alex Chisholm. Obviously, we still have four months before the next financial year, and I am very much hoping that some of these financial issues will be resolved before then.

Q31            Anum Qaisar: What conversations have you had with Government Ministers?

Baroness Falkner of Margravine: I do not think I have had a meeting with a Secretary of State without raising the issue of our budget. We have also written to Government Ministers. We wrote to Liz Truss when she was the Minister for Women and Equalities about the constraints we face and what we may be able to do were we to have additional funding. We have also had a discussion with the current Minister for Women and Equalities, Kemi Badenoch, who was essentially the owner of the report “Inclusive Britain” from the Commission on Race and Ethnic Disparities. One of the leading recommendations in that was that we should undertake some work in respect of that report. We understood that if we undertook work there would be funding coming with that, but we have not yet received it ye.