Enforcing the Equality Act

161.The Equality and Human Rights Commission has published a series of Codes of Practice explaining the Equality Act. These Codes are statutory guidance, prepared by the EHRC, approved by the Secretary of State and laid before Parliament. While interpretation of the law is ultimately for the courts the Code can be used in evidence in legal proceedings brought under the Act and must be taken into account by the courts and following the Code can help service providers demonstrate that they are acting lawfully. The Equality Act Goods and Services Code of Practice advises that:

If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate aim.

162.On this interpretation of the legislation, a service is single-sex whether or not it includes trans women. If providers of such single-sex services have reason not to admit a trans person (including a person who has a Gender Recognition Certificate), they should be using the exception allowing providers of single-sex services to discriminate because of gender re-assignment.

Commissioning and procurement of single-sex and specialist services
163.The first area of concern we felt was relevant to enforcement was that public authority commissioners appeared to be commissioning gender-neutral services in breach of the public sector equality duty. Janet McDermott, Head of Membership at Women’s Aid, told us that the most significant problem facing their members was “resourcing, funding and the commissioning that is not honouring the public sector equality duty”, but that under the current enforcement system they were not able to challenge these decisions:

In all these years, I have only known of one case where the public sector equality duty was used. [ … ] We do not have the resources to fight these cases.

164.This did not seem to be a problem with the clarity of the law. More than a decade ago the decision in R (Kaur & Shah) v London Borough of Ealing found that the (then) race equality duty “may only be met by specialist services from a specialist source.” The same principle applies to the provision of single-sex services, as is made clear in the EHRC Technical Guidance on the public sector equality duty:

The [Equality] Act recognises that, in certain circumstances, substantive equality will only be achieved if people with different protected characteristics can be treated differently, for example, to reflect their particular needs.

The Guidance goes on to say that the duties will almost always be relevant when public services are being commissioned, and further dedicated guidance has been produced on how the duties should be used in procurement by public authorities.

165.We nonetheless heard that public authorities were increasingly commissioning ‘gender-neutral’ services “that will not enable the aims of equality set out in the Equality Act to be full achieved.” Agenda, who campaign for “women who face violence, abuse, poverty and multiple disadvantage” were particularly concerned that:

commissioning of services at a local level is currently disadvantaging this group of women, with movements towards “gender-neutral” approaches to commissioning, and commissioning of larger contracts which see smaller, specialist women’s organisations lose out, and put some at risk of closing altogether.

Chapter 7 is specifically all about single sex provision.

This is the entire chapter:

7 Balancing rights in single-sex services
156.In recommending the fundamental shift in the approach to enforcement set out above, we recognise that the EHRC should retain its strategic role in ensuring that the law is clear and both enforced and enforceable by others. Our evidence suggested two particularly difficult areas where this role needs to be exercised: that of commissioning single-sex services, where the law is clear but frequently misunderstood and unenforced; and the ability of organisations to use Equality Act exceptions that allow service providers to choose if and how to provide single-sex services, where worries about the legal definition of ‘sex’ and its relationship to the protected characteristic of gender reassignment under the Equality Act appear to be acting as a barrier.

What is a single-sex service?
157.When reading through the evidence on this issue, it struck us that different people were using the term ‘single-sex’ in different ways. For some, references to single-sex or women-only services meant services that did or would apply the exceptions to exclude trans women. One submission from a member of the public who described herself as “a woman who is increasingly concerned about the erosion of my rights” stated that “[a]s soon as you say that transwomen are women, single sex spaces become mixed sex.” Another individual, who described themselves as a “PTSD sufferer whose symptoms are triggered by males” felt that:

When a previously single sex provision becomes single gender it then it also becomes mixed sex, and unsafe for me and the multitudes of other women like me.

158.Others were equally clear in their view that the inclusion of trans women had no effect on the single-sex status of an organisation.

What the Equality Act defines as single-sex
159.Most of the rights under the Equality Act are ‘symmetrical’—the ban on sex discrimination applies to men and women, the ban on race discrimination applies to people from all ethnic backgrounds and the ban on sexual orientation discrimination applies to straight people as much as to gay, lesbian or bisexual people. The law has, however, always recognised that discrimination and inequality are not symmetrical and that there are certain circumstances when treatment that may otherwise be discriminatory should be allowed. The provisions that allow for single-sex services are among these.

160.There are four exceptions under the Equality Act 2010 relevant to single sex services, outlined in the box below.

<span class="italic">Exceptions allowing services to be provided only to women (or only to men)</span>

<span class="italic">The first two relevant exceptions (Schedule 3, Paragraphs 26 and 27) allow service providers to provide separate services for men and women, or to provide services to only men or only women in certain circumstances. The symmetrical nature of the ban on sex discrimination means without these exceptions it would be illegal, for example, to hold women-only sessions at a leisure centre or a new fathers’ support group at a nursery</span>

<span class="italic">Exception allowing single sex services to discriminate because of gender re-assignment</span>

<span class="italic">The third exception (Schedule 3, paragraph 28) allows providers of separate or single-sex services to provide a different service to, or to exclude, someone who has the protected characteristic of gender reassignment. This includes those who have a Gender Recognition Certificate (GRC), as well as someone who does not have a GRC but otherwise meets the definition under the Equality Act 2010.</span>

<span class="italic">Application of this exception must be objectively justified as a means of achieving a legitimate aim. An example given in the explanatory notes to the Act is that of a group counselling service for female victims of sexual assault where the organisers could exclude a woman with the protected characteristic of gender reassignment if they judge that clients would be unlikely to attend the session if she was there.</span>

<span class="italic">Schedule 23, paragraph 3 of the Equality Act 2010 also allows a service provider to exclude a person from dormitories or other shared sleeping accommodation, and to refuse services connected to providing this accommodation on grounds of sex or gender reassignment. As with paragraph 28 and other exceptions under the Equality Act, such exclusion must be a proportionate means of achieving a legitimate aim.</span>

In a highlighted box:

The public sector equality duty is made up of a general equality duty supported by specific duties. The general equality duty is set out in section 149 of the Equality Act 2010. This is the same for England, Scotland and for Wales and it came into force on 5 April 2011. The specific duties are created via secondary legislation. These are different for England, Scotland and Wales.

The public sector equality duty is the title of the duty, and how it is referred to in the Equality Act. It consists of the general equality duty which is the overarching requirement or substance of the duty, and the specific duties which are intended to help performance of the general equality duty.

The general equality duty

The general equality duty applies to public authorities. In summary, those subject to the general equality duty must, in the exercise of their functions, have due regard to the need to:

Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.

Advance equality of opportunity between people who share a protected characteristic and those who do not.

Foster good relations between people who share a protected characteristic and those who do not.
(my bold)

These are often referred to as the three aims of the general equality duty. The Equality Act explains that the second aim (advancing equality of opportunity) involves, in particular, having due regard to the need to:

Remove or minimise disadvantages suffered by people due to their protected characteristics.

Take steps to meet the needs of people with certain protected characteristics where these are different from the needs of other people.

Encourage people with certain protected characteristics to participate in public life or in other activities where their participation is disproportionately low.

The specific duties
The general duty is supported by a set of ‘specific duties’ set out in Regulations made by the Secretary of State “for the purpose of enabling the better performance by the authority” of the public sector equality duty. These apply to a defined list of public authorities, which can itself be extended by the Secretary of State by Regulations under the Equality Act. Those currently in force are set out in the Equality Act 2010 (Statutory Duties) Regulations 2011 and require those bound by them to:

publish information annually to demonstrate compliance with the general equality duty.

publish one or more equality objectives that it thinks it needs to achieve to further the aims of the general equality duty.

Think this one is significant and very important on many levels and reasons:

6 The need for proactive and preventative duties and obligations
135.Our report on sexual harassment in the workplace found an “epidemic of inaction and poor practice” on tacking sexual harassment in the workplace. Employment lawyer Clare Murray contrasted this with data protection and preventing money laundering, where there are “really stringent regimes that have criminal and civil sanctions.” She argued that:

we should be willing to consider placing as much importance on protecting people’s safety and their wellbeing at work as we do on their data and on preventing money laundering through businesses.

Their bold:

126.We recommend that the Equality and Human Rights Commission make enforcement bodies, in the broad sense used in this report, a priority target for investigation and enforcement action for failure to implement their public sector equality duty in their enforcement functions.

127.We recommend that the Equality and Human Rights Commission establish memoranda of understanding with all relevant enforcement bodies within the next 12 months. These memoranda should explicitly set out which enforcement matters under the Equality Act 2010 the enforcement body will undertake and which will remain within the strategic role of the EHRC, as well as a mechanism for dialogue and joint working in less clear-cut cases. For example, we expect that any new labour market enforcement body would have to take on enforcement of routine employment discrimination matters, such as reasonable adjustments by employers, leaving the EHRC free to fulfil its strategic enforcement role and act where its expertise is most needed.

Oh hello, what's this?

A suggestion that public bodies don't really understand their legal obligations on equality???

Need for an explicit duty?
111.Dr David Barrett, having noted “a great disparity in the performance of regulators, inspectorates and ombudsmen in relation to equality enforcement”, attributed this to the “implicit” nature of their obligations:

despite the significant potential of regulators, inspectorates and ombudsmen in enforcing equality, this enforcement role is not explicitly set out in statute. Instead the requirement for regulators, inspectorates and ombudsmen to enforce equality law is said to be implicitly based on these organisations being subject to the public sector equality duty. The implicit nature of this duty has thus been easy to evade

Systematic failure.

Is the Equality and Human Rights Commission fit for purpose?
84.The above discussion, and the extent of the criticism of the EHRC, raises one important question: is the Commission itself fit to deliver the kind of enforcement strategy that can tackle the systemic and routine discrimination that too many people experience as a simple fact of life? The Commission has itself acknowledged that in a system of enforcement based on individual litigation it “can support and supplement this system, but it cannot replace it."

85.It is safe to say that, in terms of effectiveness, the Commission has a chequered history. Mike Smith, a former commissioner told us that when he joined in 2009 “the organisation was still struggling with the combination of three legacy commissions with three quite different cultures” and that:

I do not think it was incredibly well organised and did not have a well-functioning comms department and had not worked out how to link together its different internal organisations.

86.Since then it has been through a number of restructures, most recently in 2017 when the Commission implemented its new ‘Target Operating Model’. It has recently published a new Strategic Plan for the period 2019–2022 and is consulting on a new litigation and enforcement policy. The question remains of whether these changes on paper will lead to changes in practice.

87.David Isaac told us that the “development and finalisation” of the Commission’s new strategic plan “has given us the opportunity to make enforcement centre stage”. He told us that they had “a new legal enforcement policy” and “a new team that is focused on legal enforcement, with dedicated resources.” The Government Equalities Office supported this change in direction, suggesting that “identification of areas of employment or service provision where discrimination or harassment is widespread albeit perhaps low-level is a more effective approach”.

Aha!

This explains some of the stuff about the EHRC 'needing to be proactive on trans stuff'.

The existence of the commission itself is at stake, and they are trying to identify areas to 'improve' in order to justify their own existence.

I note the following two para which was bolded in the original

96.While we understand that the EHRC intends to make significant changes in direction and agree that changes such as establishing a new dedicated legal enforcement team have the potential to support this, the Commission has not yet demonstrated the ability to act effectively. It was ignored in Sir David Metcalf’s Labour Market Enforcement Strategy and received only small mention in the Government’s Good Work Plan. It was found wanting by this Committee in action on older workers, sexual harassment, inequalities facing Gypsy, Roma and Traveller communities, maternity discrimination and inequalities in the built environment. The Commission has acted on some of these areas, but it should not have needed prompting by a Parliamentary Committee before it did so and the Commission continues to rely on affected individuals seeking it out and convincing it to act, instead of leading work to tackle endemic and structural inequalities.

97.The EHRC must take further action to address the problems identified in the tailored review conducted in 2018. We see little evidence of the kind of clarity and focus that the tailored review recommended. Despite some progress in setting priorities and numerous restructures, the Commission still fails to have the kind of focus on impact and influence that good management should be delivering.

The big bad wolf?
27.Given the powers it has, many witnesses wanted the EHRC to be more proactive in taking enforcement action25 and David Isaac when he was appointed Chair of the EHRC in 2016 made a commitment that the Commission would become a “more muscular regulator”. In 2017 David Isaac told the Committee:

I am very keen that the Commission uses its investigatory and legal powers much more than it has done in the past, because these are powers that uniquely sit with the Commission and we must use them

Given what's been said in other threads, how impartial and fair is the commission itself?

Not sure about this about case by case effectively being replaced by 'class'. Changes to this could lead to a hierarchy of class. Depends on how changes are made. It could be a good thing, but also have inherent poor side effects toom

19.The RNIB told us that individual claims rarely result in systemic change because “cases are often settled for [an] individual with no wider change”15. Esther Leighton agreed explaining that “some providers settle repeatedly—at different locations—rather than do something systemic.” Even those, like her, who wanted to push for more found they couldn’t because of the risk of being penalised with costs liabilities for refusing a settlement, combined with the limitations of the remedies available if they did pursue the case to a successful judgment.

20.This links to another problem with individual enforcement—that the solutions needed were not always individual compensation for an individual act. RNIB argued that, for example, inaccessible websites and a lack of accessible information were forms of discrimination affecting blind and partially sighted people “as a class” meaning that “relying on individual enforcement is not effective.”17 While a higher volume of cases could help, Doug Paulley had “taken 60+ Reasonable Adjustment court cases” but even when his cases had resulted in company policy changing—he gives the example of coach companies that changed their policy to “afford wheelchair users spontaneous travel”—this was not being met in practice and in the example of coaches apparently not being enforced by the relevant regulator

The difficulties facing individuals in enforcing their rights
12.The individual approach relies on an individual to initiate legal action, something that many will not be able to do. Inclusion London set out a range of reasons that echoed evidence from other witnesses: poor knowledge of rights; unwillingness to go up against a large organisation with many more resources; complexity of the law; a lack of specialist legal support; the high cost of legal action and very limited access to legal aid. The EHRC also pointed to a range of challenges that they saw as inherent in “a model of protection for equality rights which relies predominantly on individuals bringing claims through courts”, including the imbalance of power between the parties in a discrimination case and the stress and complexity of bringing a claim. They suggested that the latter point was “heightened by the cost and the low level of compensation available in some cases.”

13.We heard directly from individuals who had brought discrimination claims in employment and goods and services. We spoke to one woman about her experience of challenging discrimination in employment, but cannot quote her because her concern of repercussions if she were to be identified meant that we had to take her evidence in private. This in itself speaks volumes about the barriers facing people in an individualised system.

Reading through the full report now. Will try and pull out interesting bits.

1.We have repeatedly heard that the Equality Act 2010 is breached without challenge and that what little enforcement is happening is insufficient to tackle the systemic or routine discrimination that too many people experience as a simple fact of life. In inquiry after inquiry individuals have reported significant barriers to enforcing their rights under the Act; public sector bodies, including regulators and inspectorates, have shown a lack of knowledge of their duties; we have found widespread, unchecked, discrimination affecting older workers in recruitment, Gypsy, Roma and Traveller communities in health, education and access to services, disabled people in housing, transport and access to the public realm. We have found harassment occurring in employment and public places, pushing women out of jobs and insufficient action being taken to tackle sexual harassment for women and girls in public places. We have found the Equality and Human Rights Commission (EHRC) failing to act in areas of significant inequality and unable to provide an adequate explanation of why it appears not to be able to fulfil the role of a robust enforcer of equality law.

4.The vast bulk of evidence came from individuals and organisations concerned with reducing the burden on those experiencing discrimination, but we were conscious that employers and service providers can also face burdens when faced with law that is unclear, inconsistently applied or not taken properly into account by other enforcement bodies that they interact with. One area where this came through strongly in our evidence was the provision of single-sex services and we consider this in Chapter 7.

Oooo a whole chapter awaits me!!!