Written submission from Government Equalities Office (EEA0259)

Overview

1.      The Equality Act 2010 (the 2010 Act) brings together nine main pieces of earlier anti-discrimination legislation into a single Act.  The 2010 Act simplifies, strengthens and harmonises the legislation and corrects anomalies that had developed over time.  It provides a comprehensive legal framework to protect individuals from unfair treatment and promote public authorities’ consideration of equality issues.  In the 2010 Act, Great Britain has one of the strongest sets of equalities legislation in the world.

2.      Like all previous anti-discrimination law the 2010 Act works by making discrimination, victimisation and harassment on grounds of a protected characteristic potentially unlawful and open to legal challenge by an individual who believes they have suffered a detriment because of this conduct.  Accordingly, the Act is mainly enforced in employment tribunals and the civil (not the criminal) courts[1].  Respondents found to have discriminated unlawfully against complainants may be required to pay compensation and in some cases damages (there is no statutory limit on the amount of compensation a tribunal can award under the Equality Act, compensation can include financial or other loss, injury to feelings and aggravated or exemplary damages).

3. The Equality and Human Rights Commission (EHRC) has a range of enforcement powers (see question 5 below) relating to the 2010 Act.  These powers are unique to the EHRC.  However, since its creation the EHRC has been required or enabled by its legislation to carry out a wide range of other functions – for example encouraging awareness and good practice on equality and diversity; promoting awareness and understanding of human rights; promoting equality of opportunity between people in the different groups protected by discrimination law; working towards the elimination of unlawful discrimination and harassment; keeping relevant legislation under review; and acting as a centre of expertise on equality and human rights.

4. Because anti-discrimination law covers employment and the provision of goods, services and public functions throughout the economy as well as housing, education and other areas, the EHRC was never envisaged as a classic inspectorate/regulator, nor a provider of legal assistance to anything beyond a small minority of those individuals seeking to bring discrimination claims against employers or service providers.  If the EHRC was significantly to expand its enforcement and/or the number of individual cases it becomes involved in, clear choices would need to be made about its purpose as an organization and the extent to which it should continue to carry out other functions.  These issues are explored further in question 5 below. 

5. The EHRC has recently been subject to a Tailored Review, as part of the Cabinet Office’s review programme for all arms-length bodies. The review has recommended that the EHRC demonstrate a clearer strategic approach through greater prioritisation of its work and strategic goals; and that it should re-set and focus its vision on its unique functions to enforce the law and regulate across the most challenging rights and equality issues.  More detail on this is in the response to question 5 below. 

Question 1: How easy it is for people to understand and enforce their rights under the Equality Act

6. Information about the Equality Act and individuals’ rights under it is readily available on a number of websites. A search using the terms “discrimination advice” or “equalities and human rights advice” provides a range of sources of information, including the Equality Advisory and Support Service (EASS), Advisory, Conciliation and Arbitration Service (Acas) and the EHRC.

7. This section provides a summary of these three organisations and the relationship between them. The Women and Equalities Select Committee heard joint evidence from the three organisations as the main players in the provision of support on equality on 17 January 2018 and asked specific questions about their approaches towards collaborative working. 

Advisory, Conciliation and Arbitration Service (Acas)

8. Acas is a non-departmental body, mainly funded by the Department for Business, Energy and Industrial Strategy (BEIS). To ensure its impartiality and independence from central Government an independent Council governs it. 

9. Acas plays a vital role in providing free and impartial information and advice to employers and employees on all aspects of workplace relations and employment law, including employment aspects of anti-discrimination law.

10. For workplace issues the Acas Helpline can offer an overview of the 2010 Act and how it may affect an individual or what an employer needs to be aware of and can also provide options for the caller. Acas also provides an impartial and confidential dispute resolution service for potential and actual claims to the Employment Tribunal. Claimants must notify the Acas conciliation service who will offer the parties the opportunity to resolve the dispute informally before they can bring a case to Employment Tribunal.

Equality Advisory Support Service (EASS)

11. The Government funds the EASS, which provides a range of advice and guidance on the Equality Act 2010.  The EASS also provides a free helpline that advises individuals on issues relating to equality and human rights, across England, Scotland and Wales. The service is accessible and inclusive providing support in a variety of different languages, including to individuals with learning or hearing disabilities. The primary function of EASS is to offer advice to individuals complaining about provision of goods or services. The EASS and Acas have an agreement to work closely together ensuring people seek advice at the right time, from the right helpline.

12. Although the EASS does not enforce the 2010 Act it supports individuals to resolve their problems using alternative informal dispute resolution, as opposed to issuing a claim in the county court or Sherriff’s Court in Scotland (provision of goods/services cases) or the employment tribunal (discrimination in the work place cases). In some instances, EASS may write to a service provider on behalf of a client in order to initiate a resolution.

13. The strategic relationship between the EASS and the EHRC has historically been that if the EASS received an issue that meets the Commission's Strategic Litigation Policy then this would be referred (in anonymised form) to the EHRC.  Should the EHRC express interest in the referral they would contact the EASS and ask them to obtain consent so that details of the case can be forwarded to them for their consideration.  Historically, this outcome has not been seen as particularly successful by the EHRC, which has recently shifted its approach from identifying strategic cases to the identification of patterns of cases that suggest systematic discrimination.  So far, in 2018, 201 cases have been referred to the EHRC from the EASS. See also response to question 5 below.

14. The EASS also refers to the EHRC issues which EASS feels  would be of interest to the EHRC for its wider intelligence work e.g. to identify emerging trends.  These types of referrals are always anonymous and are usually taken up by the EHRC for enforcement purposes or to help inform their future priorities.

Equality and Human Rights Commission (EHRC)

15. The EHRC provides advice and guidance on the 2010 Act and has powers to issue statutory or non-statutory guidance. 

16. Statutory (Codes of Practice): These documents explain what employers and service providers need to do to comply with the law.  A court or tribunal must take the Codes of Practice into account in a case where they seem relevant.

Three Codes of Practice relating to the 2010 Act became law on 6 April 2011:

1. Employment;
2. Equal Pay; and
3. Services, Public Functions and Associations.

17. Non-statutory (technical and general guidance): The Commission also provides a large number of advisory documents. These are targeted towards employers/employees, service providers/service users and education providers/students. 

Outside Government

18. A significant number of reputable sources of advice on equality law and individuals’ rights under it exist outside of Government, for instance Citizens Advice.

Enforcement of an individual’s rights

19. Breaches of the 2010 Act usually require the victim of the discrimination to bring a case against the perceived perpetrator (the EHRC is able to bring certain cases where it believes a person is likely to commit an unlawful act or call for judicial review against public authorities). This upholds the approach of previous equality legislation that does not involve criminal law, which the state enforces by prosecution.

20. Discrimination cases are brought to either County Courts (or Sherriff’s Court in Scotland) in instances of provision of goods and/or services or Employment Tribunals in the case of employment matters (and some education and armed forces cases of discrimination).

21. There are strict time limits for going to court. Claims to the County Court must be made within 6 months less one day of the act of the suggested breach. The court can allow a claim outside the time limits, but only if it considers it just and equitable to do so. Employment cases must be brought within the shorter time limit of three months less one day beginning with the date to which the claim relates.

Volume of cases

22. Data available to Government Equalities Office showing volumes of casework for Acas, EASS and Employment Tribunals is provided at Annex A.

23. Statistics available for cases brought to civil courts do not provide a breakdown by protected characteristic.  It is not therefore known how many individuals seek to bring a case on the basis that they consider the 2010 Act has been breached https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-april-to-june-2018.

24. The casework data from both the EASS and Acas indicates persistent predominance of disability cases.

Question 2: How well enforcement action under the Equality Act works as a mechanism for achieving wide scale change

25. The main purpose of the 2010 Act is to provide protections for the individual. It relies upon an individual to bring their case to either County Court or Employment Tribunal if they feel they have been discriminated against and the 2010 Act breached. Cases depend very much on their particular circumstances, so that the findings of a court or tribunal in one specific case may not be found relevant even in an ostensibly similar case.

26. It should be noted that the courts and tribunals have made decisions in which they have interpreted the 2010 Act in such a way as to establish principles in relation to anti-discrimination law.  These may be represented as “changes”, so for instance, Essop and Ors v Home Office and Naeem v Secretary of State for Justice (2017 UKSC 27) made clear the evidential burden for indirect discrimination claims, while Tirkey v Chandhok (UKEAT, 2014) is considered an example of a significant case as it is likely that anyone who believes that they have been discriminated against because of caste could bring a race discrimination claim under the existing race provisions in the Equality Act as an aspect of “ethnic origin”.

27. Duties that apply to e.g. all employers, or all employers in a particular sector, are considered further in question 6 below.  The widespread coverage of certain uniform duties means that the outcome of individual cases may require large numbers of employers, or providers of goods, services or public functions, to take similar action to reduce the risk of later being found in breach of the duty as interpreted in that particular case.   An example involving the Public Sector Equality Duty would be R (South West Care Homes Ltd and Others) v Devon County Council, EHRC intervening [2012] EWHC 2967 (Admin). This decision confirmed that public authorities should consider the needs of older and disabled residents when reviewing the cost of providing residential care. The EHRC intervened to clarify the relevant equality law that authorities are obliged to consider when making plans.

28. The EHRC has a unique role in exercising its powers under s28 of the 2006 Act that enable it to provide legal assistance to an individual if the case relates to the provisions in the 2010 Act. Its role as a strategic regulator means that it focuses resources on cases that have a wide impact.  Since April 2013, EHRC has been successful in two-thirds of cases it has taken (successful, or successful in part, in 45 out of 67 cases, which is 67%).  Although we believe there are shortcomings with the EHRC’s “strategic” approach to litigation (see question 5 below), the strategic approach does allow the EHRC to take on cases that explore the boundaries of equality and human rights law or deal with novel issues where outcomes are uncertain, so that even if the complainant loses their case, the result might help to clarify the law for others or highlight gaps in protection that the government can then consider addressing. 

Question 3: How effective and accessible tribunals and other legal means of redress under the Equality Act are, and what changes would improve those processes

29. For people seeking to enforce their employment rights there is an early dispute resolution step offered by Acas before going to an employment tribunal. 

30. The Government believes that it is always best to resolve workplace disputes as early as possible. This is why the Government introduced the early conciliation service in 2014 to try to help the parties to try to come to a settlement without the need to progress to a tribunal.  

31. In the operational year 2017-18 there were over 109,364 notifications to use the Acas free early conciliation service; of these 6,678 related to sex discrimination (6%).  Over 70% of the total number avoided tribunal hearings in that operational year.  The number of cases settled by early conciliation in 2017-18 was 26,012, of these 2,579 related to sex discrimination (10%).

32. Participation in the process is voluntary for both employer and employee. Whilst potential claimants are required to contact Acas before making an employment tribunal claim, they only need to take part in discussing the matter and attempting to resolve it if they want to, and either the claimant or employer can stop the process at any time.  In those circumstances, Acas would conclude that settlement was not possible and issue the early conciliation certificate to show that the employee notified Acas. It is for the employee to decide whether to proceed to an employment tribunal.

33. The Government’s reforms to the scope of civil legal aid were designed to refocus funding on those who need it most and for the most serious cases in which legal advice and representation was justified. HMG has specifically protected legal aid (both for initial advice and for representation), subject to the statutory means and merits tests, for civil legal services provided in relation to contravention of the Equality Act 2010. Publicly funded advice continues to be available for Employment Tribunal discrimination claims and publicly funded advice and representation is available in the Employment Appeal Tribunal. This includes funding for new and expectant mothers who may have experienced discrimination, which is an area of concern to the WESC.

34. In recognition of the extensive nature of the changes made by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and subsequent amendments, the Government is undertaking a Post-Implementation Review (PIR).The PIR will consider the impact of the LASPO Act against its original objectives. The LASPO reforms were founded on the principle of ensuring that legal aid continues to be available for the highest priority cases. The post-implementation review will assess the extent to which LASPO targeted legal aid to those who need it most, one of the core objectives set out at the time of the reforms. 

35. As part of the review the Ministry of Justice has now engaged with over 80 interested parties, including a broad range of stakeholders across the legal aid sector. These include those working within the court system, including members of the judiciary and court staff. They have held consultative group meetings that have looked at the journey through the justice system in order to assess where the legal support available to the user can be improved.

36. The policies under assessment as part of the review include the introduction of the mandatory telephone gateway for education, discrimination and debt issues, and the introduction of a domestic violence evidence gateway for accessing legal aid for private family law matters. The Ministry of Justice will be assessing the extent to which the gateway fulfils its implementation objectives to provide accessible and cost-effective legal advice.  The review will be published later this year.

37. Legal aid is just one part of the access to justice landscape. Alongside the post-implementation review of LASPO, the Government is looking to the future to establish how best it can empower people to resolve their problems in a modern justice system.  Ministry of Justice wider reforms and digital work may offer improvements.  The £1bn court modernisation programme has already started improving life for those who use and need our courts. This will transform how people experience the justice system, with digital services making justice more accessible and straightforward.

Question 4: How effective current remedies for findings of discrimination are in achieving change, and what alternative or additional penalties should be available

38. As noted above, claims made under the Equality Act are brought by individuals and so the remedies – normally compensation, but sometimes also damages – therefore apply to the individual and are designed to provide the individual with restitution for the detriment they have suffered.  The question of to what extent the judgment of a particular court or tribunal in a specific case sets a precedent and/or may result in a change in behaviour across large numbers of employers or service providers will depend on the circumstances of the case.  Within this limitation, we have noted above (paragraphs 26-27) some cases considered significant in this respect. 

39. The Government’s view is therefore that the significance of equality law in achieving change is a complex and wide-ranging issue; and that the actual way in which remedies for discrimination claims work may play little part in this.  There may however be separate questions, about how effective the existing remedies are in achieving change for the individuals concerned. This is in part related to employer and service provider compliance in paying compensation and any other penalties as ordered by the court or tribunal.  In this context, we note that data on compliance rates for payment is not collected, and that after the judgment is issued in an employment case the tribunal has no further involvement with the claim and action on failure to comply with its ruling is a matter for the individual to pursue through the civil courts. We would be interested in any evidence given to the Committee’s inquiry about this.  

Question 5: The effectiveness of the Equality and Human Rights Commission as an enforcement body, including:

1. Whether the powers the Commission has are sufficient and effective;

40. The EHRC has the power to issue statutory codes of practice that, where relevant, must be taken into account by a court or tribunal (see paragraph 1 above). It also has the following enforcement powers: 

41. As part of the Cabinet Office’s review of all arms-length bodies, a Tailored Review of the EHRC has recently been completed. The Review considered how best the EHRC could deliver its statutory obligations, the broader issue of independence, as well as reviewing the powers available to the Commission more widely, and whether they remain appropriate. 

42. The Tailored Review found that the EHRC’s enforcement functions are appropriate to its role as Great Britain’s independent national equality body and UN-recognised National Human Rights Institution.  The review’s strong recommendation is that EHRC should prioritise its enforcement work, given that its powers and functions in this area are unique (as compared for example to aspects of its function of disseminating information and advice). 

43. The Government endorses the Tailored Review’s conclusions and believes that the powers available to the EHRC in the Act are sufficient for enforcing the Act as originally proposed - “The [EHRC] will play a key role in challenging unlawful discrimination both through the services that it provides directly, and through enabling and supporting other organisations which work to help individuals secure their right to fair treatment.  It will …in some circumstances, provide legal representation and support to individuals, particularly where their cases test important areas of the law or are likely to have a significant wider impact”[2] - and as agreed by Parliament in the passage of the Equality Acts of 2006 and 2010.  It is important however, to note some contextual points about these powers:

(i)                  Anti-discrimination law is (and always has been) almost exclusively civil, not criminal law.  Claims made under the Equality Act 2010, including those against behaviour such as sexual harassment in the workplace or race or religious discrimination in the provision of services, are fundamentally the responsibility of the claimant, whether an employee or a service user. 

(ii)                 The EHRC was never envisaged as having the capacity to intervene in more than a small minority of complaints.  Government accepts that it is not possible for the EHRC to support a substantial proportion of anti-discrimination claims: this may give greater relevance to some of the “alternative enforcement” options set out in our response to question 6 below, particularly those relating to compliance and enforcement by a wider range of organisations.  

(iii)               The EHRC was not envisaged – and is not resourced – for the role of, for example, ensuring that every larger employer publishes its gender pay gap (GPG) by a certain date, or that every public authority publishes data required under the public sector equality duty specific provisions.  Accordingly, EHRC’s enforcement of the first year of GPG reporting has had to be subject to one-off resource arrangements agreed with the GEO, while the GEO itself (rather than the EHRC) resourced the initial effort to ensure proper awareness by in-scope employers of their new legal requirements and to track compliance up to the reporting deadline; GEO also carries out some aspects of PSED compliance.  Recent recommendations by the EHRC itself – for example that every employer should publish their sexual harassment policy and the steps being taken to implement and evaluate it, and ensure it is shared with organisations supplying staff and services – would raise further questions about whether its powers and resources are appropriate where enforcement is primarily a function of checking compliance. 

2. Whether the Commission is using those powers well;

44. EHRC’s latest figures (2017-18) detailing its use of specific enforcement powers are below:

Unless stated otherwise, table below shows approximate number of times that EHRC agreed or agreed in principle to the use of each of the powers listed, even if matter subsequently did not proceed or decision was later revoked (or in the case of litigation, settled or concluded without a hearing).

Table 2: Other legal work volumes

45. Government has the following observations on the EHRC’s use of its powers:

(i)                  EHRC compliance work generally operates through informal requests for employers or others to comply with the law. Where these do not result in any formal litigation, it is often difficult for Government and Parliament to identify measurable enforcement action, e.g. EHRC interventions regarding BBC pay disparity https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/ehrc-bbc-letter-17-19/.   The GEO accepts that because EHRC’s enforcement work often concludes without formal process, this reduces what can be said publicly about specific cases, albeit that it can often be counted as a success for the EHRC.  However, it also means that on occasion very little can be said publicly about significant and high-profile interventions, including those where the GEO is in practice being held accountable for the work of its sponsored body (e.g. in Parliamentary debates);

(ii)                EHRC has been giving more publicity to its enforcement work, but should consider bringing its compliance, enforcement and litigation work together into e.g. an annual publication.  The Tailored Review recommends that EHRC reports periodically to Ministers and Parliament on its priorities and impact;

(iii)               Even allowing for the extent to which initial proceedings against employers and service providers can be concluded informally, investigations under Section 20 of the EA 2006 are an important EHRC enforcement power, but very seldom used.  This reflects the EHRC’s view about the resourcing, legal preparation and need for mitigation of risks in opening an investigation. There may be scope for considering whether a “lighter touch” investigation is feasible within the provisions of the Act;

(iv)              The GEO accepts that, while there may be some efficiency gains to be made, greater focus on compliance and enforcement requires EHRC prioritisation, if its resources are not to be excessively strained across too many statutory powers and duties.  Among suggestions for early consideration as priority reductions are:

      Work on broader standards of living and income inequality, which takes it beyond its core equalities remit. 

      Publication of “How Fair is Britain?” reports every five years, as allowed by statute, rather than every three years; and a reduction in costs of the report.

      Disproportionate resource on Parliamentary briefings, as identified in the Tailored Review.

      EHRC’s funding of a post at the Centenary Action Group. 

3. 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;

46. As already noted the EHRC is not and – under existing legislation - cannot logistically be involved in supporting routine anti-discrimination casework.  Accordingly, it has to choose and prioritise its interventions.  Its use of a “strategic litigation” approach to do this has not always, in Government’s view, been an adequate approach to selecting cases for further work and possible EHRC legal support.   Defining “strategic” has proved difficult, and to the extent that it involves identifying cases likely to expand (or, in the EHRC’s view, “clarify”) the law, this creates problems of timely identification and potentially wasted effort given e.g. employment tribunal time-limits for claims and other constraints.

47. We therefore welcome the EHRC’s move towards seeking to identify “systemic” cases (i.e. cases that point up a more general failing of compliance with the Act or form of discrimination).  The Government’s view is that identification of areas of employment or service provision where discrimination or harassment is widespread albeit perhaps low-level is a more effective approach than relying on the identification of strategic enforcement opportunities, as this can result in putting resources into chasing individual cases that run out of time or otherwise fail to develop. 

4. Whether the Commission uses enforcement action appropriately and effectively as part of its wider strategies for advancing equality.

48. The EHRC’s Target Operating Model, introduced in 2017, reorganised the EHRC’s staff around six domains - education, health, work, living standards, justice and personal security, and participation.  The Tailored Review notes a number of advantages from this approach.  However, it also points out that the domains cut across the protected characteristics that remain the basis for anti-discrimination law and thus EHRC’s enforcement work under that Act. The review notes that stakeholders (this includes Government Departments) are largely unaware of the move to domain working and do not understand how this model relates to the Commission’s work plan or to the Commission’s role as enforcer of the Equality Act.

49. The Review therefore recommends that to build confidence with stakeholders and the public the EHRC needs to make choices and explain both what it plans to focus on and what it will not. It needs to ensure domain working and the potential benefits are understood and that this approach does not dilute prioritisation; if this cannot be shown to bring benefits the EHRC should look at this again.

5. Whether the Commission’s role as an enforcer is widely known and understood and acts as a deterrent to discrimination.

50. The Tailored Review notes a recent EHRC stakeholder survey that found that it is primarily perceived as a provider of information rather than as an enforcer of the law (74% agreeing as against 47% respectively).

51. The Review’s interviews with EHRC stakeholders suggested that enforcement and regulation are seen by most of them as the most valuable activities the EHRC can pursue.

Question 6: 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

52. Although earlier evidence to the Committee (for example, the National Audit Office’s “Briefing on the Equality and Human Rights Commission” of January 2017) indicates that some countries have ombudsmen or other mechanisms more exclusively dedicated to compliance and enforcement than the EHRC, the approach whereby a single body covers equalities law, promotion and overview of human rights does exist elsewhere (for example, Ireland, the Netherlands) and these countries are likely to face similar issues such as the need for their national body to prioritise between different functions, and to prioritise between different types of case and between compliance and enforcement. 

53. Different models suggested in Parliamentary and other reports (particularly in the 2016 report of the Lords’ Equality Act and Disability Select Committee) in recent years include:

1. Use of ombudsmen;

2. More active involvement by sector regulators rather than the EHRC being the sole regulatory and enforcement body for every sector of the economy;

3. Charities and/or other NGOs with a particular interest in one protected characteristic to enforce compliance against complaints in that field;

4. Involving licensing authorities through making a failure to comply with the reasonable adjustments duty applicable to premises a ground for refusal of a licence. 

Annex A

Casework Volumes: Advisory, Conciliation and Arbitration Service, Equality Advisory Support Service and Employment Tribunals

Advisory, Conciliation and Arbitration Service (Acas)

Early Conciliation notification forms received by all grounds of complaint

ET1 cases received for conciliation from the Employment Tribunal Service by all grounds of complaint

Equality Advisory Support Service (EASS)

Data provided by the EASS

Total Cases by Quarter, January 2017 – June 2018

Employment Tribunals

Data taken from Ministry of Justice officials statistics: Tribunals and gender recognition certificate statistics quarterly: April to June 2018

https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2018