"Current model is dependent on individual enforcement rather than seeking institutional change" say Committee.
On 30 July the Women and Equalities Committee (WEC) published their report on the enforcement of the Equality Act 2010 (EqA'10) and the role of the Equality and Human Rights Commission (EHRC).
Generally, the WEC's view is that the current framework for enforcement of rights under the EqA'10 is too dependent on individuals bringing claims to enforce their rights and/or seek damages for infringements and that this is impinging on the desired effect of the EqA'10 in UK workplaces. As a result, the WEC has suggested fundamental changes in the way that EqA'10 rights are enforced in the UK, including much more proactive approaches from sector regulators and the EHRC.
Flawed focus on individual enforcement
The WEC's report recognises the limits of individual enforcement, in particular that money was a key driving factor for all parties to discrimination claims, rather than effecting change.
Individuals tend to start off in a weaker position vis-à-vis their employers because they are usually less able to fund claims for breach of the EqA'10 through the courts and tribunals system. This means that the vast majority of claims never reach a court or tribunal, either ceasing due to lack of funds or settlement. Even if a claim does reach a tribunal and wins, the result is usually an award of damages which may have a negligible effect on the employer in the sense that it does not force them to confront issues of discrimination within the organisation.
In the Committee's view, the net result is that particular behaviour within an organisation can potentially go unchallenged and unchanged, meaning the protections of the EqA'10 are often left unfulfilled and only act retrospectively as a result of an individual bringing a claim.
The WEC was provided with evidence suggesting that employers are not particularly concerned about their sector's regulators or the EHRC taking enforcement action against them.
Recommendations made by the Women and Equalities Committee
The WEC was quite critical of the EHRC and recommended that it take several steps to put it on a more proactive footing in regard to enforcement activity. Other key recommendations were that sector regulators should do the same and work strategically with the EHRC to promote institutional change. This included recommendations that the government put obligations on enforcement bodies such as regulators and ombudsmen to fully utilise their powers to secure compliance with rights under the EqA'10 in their respective sectors. This in turn would be underlined by a recommendation that the EHRC make enforcement bodies a primary target for investigation and enforcement action for failure to implement their duties.
Whilst the WEC did not want to remove individuals' rights to bring enforcement action, it considers that this should, ideally, be a last resort. To help individuals, the EHRC and enforcement bodies impose institutional change the WEC also recommended increasing penalties and consequences for employers who failed to uphold the principles of the EqA'10. This includes creating recommendations for a mandatory duty on private and public sector employers to protect workers from harassment and victimisation in the workplace, supported by a statutory code clearly setting out what the duty entails. Breach of this duty would carry 'substantial' financial penalties.
Other recommendations include helping individuals access legal aid for discrimination claims and helping individuals avoid costs orders purely because they refused to enter into a settlement agreement or non-disclosure agreement. Perhaps more significantly for employers, the WEC recommended that judgments of county court discrimination cases be published online (as is already the case with employment tribunal judgments), that discrimination claims should be able to attract exemplary damages, and that courts and tribunals should be given the power to make remedial orders requiring organisational change and wider recommendations.
The WEC have come to some clear and provocative conclusions about the effect the EqA'10 has had on the workplace in the UK. If the recommendations made by the WEC are taken up by the government, employers could see a noticeable increase in their duties in regard to, and potential liabilities from, discrimination claims as well as the threat of action from sector regulators.
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