On 30th July 2019 the Women and Equalities Committee published the report of its inquiry into the Enforcement of the Equality Act. The Committee recommended important changes in the way that the 2010 Act is enforced, concluding that the reliance on individuals to bring claims when discrimination has occurred imposes too high a burden on those individuals and is not fit for purpose. Therefore, they argue, that while there must remain a right to challenge discrimination in the courts, ‘the system of enforcement should ensure that this is only rarely needed’. Instead, building on the work of Bob Hepple, Mary Coussey and Tufyal Choudhury, and Sandra Fredman, the Committee advocated a more proactive approach where ‘all who have powers to change the way in which employers, public bodies and service providers operate use those powers to eliminate discrimination and to advance equality’. The Committee focused on three main institutions that needed to be improved if this proactive approach is to be achieved: the Equality and Human Rights Commission (EHRC); regulators, inspectorates and ombudsmen (RIOs); and the government. This post discusses the roles envisaged by the Committee of the EHRC and RIOs and how the Committee believes these roles can be achieved. It will be argued that while the recommendations are important and achievable, in places they both overplay and underplay what can be achieved by these bodies in the timeframes set by the Committee, and there is a danger that if the recommendations were enacted, some of the actions could undermine rather than further a proactive approach to enforcement.
The Equality and Human Rights Commission
The Committee found that the EHRC tended to intervene in existing cases rather than initiate action on its own behalf. In particular, it criticised the Commission for rarely using its unique powers: having never issued a compliance notice; applying for seven injunctions but then not publicising this fact, only initiating one formal investigation and never assessing compliance with the public sector equality duty. Based on this, the Committee argued that the burden of enforcement has been borne by individuals, which was insufficient to tackle routine and system discrimination. Consequently, the Committee recommended that the EHRC engaged in more enforcement work, that it publicised this work, had clearer priorities, made RIOs a priority target for investigation and enforcement action, and established memorandums of understanding (MoU) with all relevant RIOs within the next twelve months.
Regulators, Inspectorates and Ombudsmen
In relation to RIOs, the Committee found ‘example after example’ of them failing to meet their duties under the Equality Act 2010. It ascribed an important enforcement role to such bodies as they ‘are far better placed than the Equality and Human Rights Commission could ever be to combat the kind of routine, systemic, discrimination matters where the legal requirements are clear and employers, service providers and public authorities are simply ignoring them because there is no realistic expectation of sanction’. The Committee envisaged RIOs assessing equal pay, direct discrimination, the failure to make reasonable adjustments, harassment and victimisation. The EHRC would then be able to focus on strategic enforcement and act in areas where its expertise and unique powers are most needed. On the basis of this, the Committee recommended that each Government Department be put under a legal duty to ensure that the enforcement bodies for which they are responsible are using their powers to secure compliance with the Equality Act 2010.
Moving to a Proactive Enforcement Approach?
The report of the Women and Equalities Committee has many strengths that will encourage a move towards a more proactive enforcement approach. For example, the important role of RIOs has been clearly recognised. Additionally, the Committee has recognised the need for the EHRC to shift its role (as I have argued previously the Commission’s focus on intervening in legal cases has not been particularly successful) and focus more on its inquiry, investigation and own action powers. Crucially, the recommendations are not resource intensive focusing on reorienting how bodies (i.e. the EHRC and RIOs) currently behave and so are realistic and achievable. However, two significant criticisms can be made of the recommendations.
The report underplays the role of regulators, inspectorates and ombudsmen
The Committee envisages that RIOs will tackle routine and systemic discrimination. However, routine and systemic are not necessarily the same. Routine discrimination is something that happens repeatedly and as a matter of course and is likely to be fairly overt and thus fairly easy to address. In contrast, systemic discrimination is, by its very nature, embedded in the system, it is complex and very difficult to overcome. I agree with the Committee that RIOs can address both, however, the report focuses on routine discrimination (e.g. direct discrimination) and less on addressing systemic discrimination (e.g. the public sector equality duty), which is presumed to be the task for the EHRC (i.e. an area where its expertise and unique powers are most needed). Yet, it could be argued that in terms of systemic discrimination, RIOs are often better placed to act than the EHRC. For example, men are significantly less likely to access psychological therapy to treat mental health issues compared to women (33.9% cf 65.8%). This is clearly a systemic issue, there is no clear person or body to blame and it is a national rather than local problem. For such systemic issues, both national (e.g. producing of strategies and recording of statistics) and local solutions are needed. While the EHRC may be involved in developing national solutions, local health professionals know their patients best and should be involved in local solutions. The Commission cannot be present in every healthcare setting in Britain, but the relevant regulator and inspectorate (e.g. in England. the Care Quality Commission) can. The CQC, for example, can support local healthcare settings in complying with the public sector equality duty by sharing best practice, providing suggestions and incentivising (through ratings) innovative local approaches to addressing systemic discrimination. Yet, there is a danger that by placing a legal duty on Government Departments to ensure RIOs use their powers to ensure compliance with equality law, while at the same time requiring the EHRC to make RIOs, a priority target for investigation and enforcement action that this will incentivise a quick-fix tick-box approach by RIOs to enforcement. This prioritises what can be easily measured (i.e. addressing routine discrimination) over the more complex (i.e. addressing systemic discrimination).
The report overplays the role of the Equality and Human Rights Commission
The Committee recommends that the Equality and Human Rights Commission concludes a MoU with every regulator, inspectorate and ombudsmen within 12 months and make them a priority target for investigation and enforcement action. Presumably, the assumption underlying this recommendation is that it is easy for RIOs to enforce equality law and they are purposefully choosing to ignore their obligations. However, while equality law might have been simplified it is still not simple and so it seems a little unrealistic to assume it can easily be grasped by non-specialists (e.g. teachers in Ofsted, health professionals in the CQC). In this context, RIOs need guidance and support from the EHRC, yet the Committee’s recommendations risk placing them in opposition, enforcement action being an initial act rather than a last resort. As outlined above, working independently to address equality in a short-time scale to avoid enforcement action is likely to lead to only very basic enforcement by RIOs, and does not encourage more complex, time-consuming action to address systemic inequalities.
Overall, the report of the Women and Equalities Committee is welcome, as a genuine attempt to move towards a more proactive enforcement model of equality law. However, in order to address systemic discrimination, a greater recognition needs to be given to the potential of regulators, inspectorates and ombudsmen. Additionally, there needs to be consideration of how this potential can be best realised, where instead of refusal to act, consideration is given to the lack of capabilities to act. In this light, the EHRC is best placed to support regulators, inspectorates and ombudsmen to make real and important changes to the way they work rather than bringing enforcement action against them.
Dr David Barrett is Lecturer in Law at the University of Exeter
(Suggested citation: D. Barrett, ‘Shifting the Burden of Enforcing Equality Law’, U.K. Const. L. Blog (9th Sept. 2019) (available at https://ukconstitutionallaw.org/))