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Enforcement of Equality Act: proposals

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Last updated 28th August 2019.

This page summarises changes proposed by various reports on enforcing the Equality Act. Two of the reports are from 2019, from the House of Commons Women and Equalities Committee and, on legal aid, from the Equality and Human Rights Commission.

Women and Equalities Committee report, July 2019

Some of the Committee’s recommendations:

Fundamental shift in approach

Many individuals will not be able to take legal action themselves. While individuals must still have the right to challenge discrimination in the courts, the Committee recommended that the system of enforcement should ensure this is only rarely needed. This requires a fundamental shift in the way that enforcement of the Equality Act is thought about and applied (para 11-23).

Equality and Human Rights Commission (EHRC)

EHRC should significantly increase the volume, transparency and publicity of its enforcement work by making much greater use of its unique enforcement powers, publicising that work and reducing its reliance on individual complainants (para 51-52).

Publicising the enforcement action that you are taking, so as to act as a deterrent, is a crucial foundation to the work of any effective enforcement body. Also if those whose rights are not being upheld do not see the EHRC as an active enforcer they will not come forward with the intelligence the EHRC needs to take such action (para 53-54).

Ombudsmen and other enforcement bodies

The Committee recommended that all enforcement bodies including regulators, inspectorates and ombudsmen should be using their powers to secure compliance with the Equality Act 2010 in the areas for which they are responsible. Each Government Department should be put under a legal duty to ensure that enforcement bodies for which it is responsible are using their powers to secure compliance with the Equality Act. Furthermore enforcement bodies should be a priority target for investigation and enforcement action by EHRC, and the latter should establish memoranda of understanding with all relevant enforcement bodies within the next 12 months (para 98-127).

The Committee’s 2019 report particularly mentions the Financial Ombudsman Service as one which has already taken ownership of equality law: see Complaints and going to court: services>Ombudsmen and other enforcement bodies?

Also the House of Lords Select Committee on the Equality Act 2010 and Disability (below) recommended in 2016 (at para 461 of its report) that the Government amend the mandates of ombudsmen etc to make securing compliance with Equality Act 2010 a specific statutory duty.

Labour market enforcement body

The Committee recommended that the planned new labour market enforcement body – and any other new enforcement bodies – should have an explicit mandate to secure compliance with the Equality Act 2010 using its enforcement powers (para 122).

The government issued a consultation document on the proposed labour market body in July 2019: Good work plan: establishing a new single enforcement body for employment rights (gov.uk).

Qualified one-way cost shifting (QOCS)

In the employment tribunal each party will usually bear its own costs. However for claims in the County Court, eg against a service provider, the Committee recommended that QOCS be extended to discrimination claims, to reduce the risk of a claimant being liable for large legal costs of the other side if the claimant loses (para 208-212).

QOCS and its context are explained in more detail in the 2016 House of Lords Select Committee report (below), at para 395-402, which also recommended that QOCS be extended to discrimination claims.

Confidentiality agreements

There was evidence before the Committee that both in employment tribunals and county courts claimants were feeling pressurised to settle, including with a non-disclosure agreement, through the threat of being pursued for legal costs if they did not.

The Committee recommended that guidance be issued to judges and the legal profession on when refusing to enter a settlement agreement or agree to a non-disclosure agreement will and will not constitute grounds for awarding costs in discrimination claims, with a strong presumption that such a refusal, on its own, will not lead to an award of costs against an individual (para 213-216).

Publication of County Court judgments

The Committee recommended that the Courts and Tribunals Service publish the judgments in county court discrimination cases online, with suitable use of anonymity to protect individuals where appropriate.

EHRC’s Legal Aid report, 2019 (below), at para 34-35, also recommended that copies of written judgments in proceedings brought in the county court under the Equality Act 2010 should be published, as well as data on discrimination claims in the county court.

Exemplary damages and remedial orders

The Committee repeated recommendations it had made in previous reports, but particularly that the Government bring forward legislation to:

  • make exemplary damages for discrimination claims more widely available in both employment tribunals and in county courts, and
  • empower both employment tribunals and county courts to make remedial orders that require organisational change and to make wider recommendations where this can support change within the wider sector (para 220-225).

A wider power to make recommendations was also recommended by a the House of Lords Select Committee report, 2016 (below).

My brief comments on some of the proposals below: From the point of view of people who stammer, making it easier to interact face-to-face rather than having to use the telephone sounds welcome. Also staff on the helpline need to be trained in interacting with people with communication impairments, including stammering. And I hope there is no voice recognition telephone system involved. For background on legal aid, see my section Sources of help and advice>Legal aid.

Some of the EHRC’s recommendations:

Telephone gateway should not be mandatory

Anyone seeking legal aid for a discrimination issue must do so through a phone line known as the Telephone Gateway (‘Gateway’). If they are then assessed as unsuitable for telephone advice, they should be referred for advice face-to-face. However over five years, of the 7,768 discrimination cases taken on, only 18 such referrals were made. Many of the service users EHRC spoke to said they would have liked face-to-face advice, but legal aid providers told EHRC that the system discouraged them from making these referrals.

The Government has committed to making the Gateway non-mandatory by Spring 2020 (Legal Support: The Way Ahead (pdf, gov.uk) at page 15, Feb 2019). The EHRC sets out what it believes this should involve (page 19 of its report).

Making adjustments to access telephone Gateway

Telephone advice will still be the preferred option for some people. But EHRC found that service users do not always get the support they need to access advice in this way. It says the government should (page 21):

  • satisfy itself that systems are in place to ensure reasonable adjustments are put in place for every disabled person who requires them to access telephone advice, and
  • ensure that Gateway operators and specialist providers discuss the availability of adjustments and adaptations to each service user, at first contact and again at any point during the case if it becomes clear that the client needs additional support to access the service.

Legal aid for representation in eg County Court

Legal aid is not normally available for representation by a lawyer (rather than just advice) in the employment tribunal, but EHRC recommends it should be made easier to get representation in other courts such as the County Court (p.34-35):

  • The cost/benefit test makes it difficult to get legal aid for representation given the relatively high legal costs compared with the compensation which can be expected. The importance to the individual and to society of discrimination cases should be recognised in applying the test.
  • Also guidance should highlight that county court discrimination cases may, regardless of their value, be allocated to the fast track or multi track as a result of their complexity, for which legal aid can be available.

The Women and Equalities Committee report, July 2019 (above) goes further than EHRC on the cost/benefit test, recommending that the cost/benefit assessment should start from an assumption that discrimination claims are not primarily claims for damages and are likely to be in the wider public interest (para 202-207).

Exceptional case funding

Legal aid funding is not routinely available for representation by a lawyer in the Employment Tribunal (as opposed to advice), but ‘exceptional case funding’ (ECF) can be granted for any case where it is necessary to avoid a breach of a person’s human rights or EU rights. EHRC says that between 2013/14 and 2017/18, 10 applications were made for ECF but none were granted, suggesting that the scheme is not providing the safety net that it should. It recommends that the Government should amend the guidance on exceptional case funding in various ways (pages 38-39).

A few months before, in February 2019, the government said in Legal Support: The Way Ahead (pdf, gov.uk), page 14, that by end of 2019 it would seek to improve and simplify guidance and processes for accessing exceptional funding.

Thresholds and financial evidence

EHRC recommends that the government should ensure that legal aid thresholds are set so that only those who can genuinely afford to pay for their own legal representation are excluded, and any contribution required from people towards their legal costs should be genuinely affordable.

Also changes should be made to the financial evidence requirements so that they are no longer a barrier to securing the legal support to which someone is entitled. In the interim, people in receipt of certain benefits should be ‘passported’ as automatically eligible for legal aid (p.43).

House of Lords Committee report, 2016

Some of the Committee’s recommendations related to enforcement are outlined below. Some others are mentioned above in the context of later reports.

Wider power of employment tribunals to make recommendations

In 2015 the power of an employment tribunal to make recommendations which did not benefit the claimant was repealed. For example if the claimant has been dismissed, the tribunal cannot now recommend diversity training to benefit other staff, because it does not benefit the claimant. More: Remedies in employment disputes>Abolition of wider power to make recommendations.

The House of Lords Committee report recommended that the Government restore the power of tribunals to make wider recommendations with a view to preventing discrimination experienced by the claimant from happening to others (para 410-416). The Government rejected the recommendation at p.28 of its response.

A wider power to make recommendations was also recommended by the Women and Equalities Committee, 2019 (above).

Questionnaire procedure

The Committee recommended the restoration of the questionnaire procedure, repealed in 2014 (para 403-410). This allowed a potential claimant to serve a list of questions on a potential defendant who they believed had breached the Equality Act. The Committee said the intention, and the consequence, was that where, after a reply had been received, a claimant began court or tribunal proceedings, the issues would have been simplified and the litigation would perhaps be shorter and less costly.

Various organisations argued in favour of the questionnaire procedure, but the Committee commented that also none of the three witnesses who saw things from an employer’s perspective seemed unduly concerned by the procedure.

Class actions

The Committee recommended the Government consider changing the law to allow charities and other bodies which do not themselves have a legal interest to bring proceedings in the interests of classes of disabled people who are not themselves claimants (para 428-434).

Conciliation for non-employment claims

The Committee recommended restoring the Equality and Human Rights Commission’s power to arrange the provision of conciliation services for non-employment discrimination claims (para 447-450).

Codes of Practice

The Committee recommended that the Government lay before Parliament as Codes of Practice EHRC’s technical guidance on the Public Sector Equality Duty, Schools, and Further and Higher Education (para 157-164).

Also EHRC should prepare a specific Code of Practice on reasonable adjustments to supplement the existing Equality Act Codes. This would provide an appropriate balance between flexibility and clarity (para 231-226).

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