Sex,’Race’ and Disability Discrimination Laws Not Enforced

Report on enforcement action between 1 January 1999 and 1 June 2006 finds discriminators getting away with it

The Public Interest Research Unit will be publishing (on 30 August 2006) a report on the use of ten direct enforcement powers by the Commission for Racial Equality, the Disability Rights Commission, and the Equal Opportunities Commission (Teeth and their Use- enforcement action by the three equality commissions).

Findings on discrimination and enforcement

  • During the more than seven years studied (1 January 1999 to 1 June 2006), the three equality Commissions made no use at all of five of the enforcement powers investigated and little use of the other five (see attached tables for details). For example, the Commissions served just one ‘non-discrimination’ notice between them (served by the Commission for Racial Equality on the London Borough of Hackney in 2000).
  • It appears that Commission neglect of their enforcement powers (along with the difficulties individuals face in taking legal action themselves) helped ensure that the majority of discriminators got away with committing unlawful acts, and that some of the most vulnerable people in the country were left without protection or redress.
  • Some major discrimination laws were not enforced at all during the period studied (1 January 1999 to 1 June 2006). For example, only the equality Commissions have the power to enforce the provisions against discriminatory job advertisements, but none of them used this power. Among other apparent consequences, this appears to have made it harder for some people with long term illnesses or disabilities to get back into employment or gain promotion.
  • Despite recent increases in certain types of racial discrimination, including some types of racially aggravated crime (such as, for example, a 14% increase in recorded offences of racially aggravated harassment between 2004/05 and 2005/06), the Commission for Racial Equality (CRE) used none of the ten studied enforcement powers during the first five months of 2006 (i.e. up to the end of our study period).
  • Problematic enforcement aside, the Commissions, together, appear to have performed an invaluable role; including, in particular, through advising on legislative change, commissioning research, providing information and guidance to organisations and the public, and helping to keep equality issues on the political agenda. The Commissions have also assisted a limited number of individuals in taking discrimination cases to court or the Employment Tribunals.

Findings on the impact of the Equality Act 2006 (which establishes the Commission for Equality and Human Rights (CEHR))

  • The Equality Act 2006 strengthens some of the enforcement powers (and extends them to additional equality ‘strands‘), but weakens or removes others; weakens the rights of individuals seeking legal assistance in discrimination cases; and gives the Lord Chancellor what appears to be excessive power to determine the situations in which the CEHR will be able to support cases under the Human Rights Act.
  • The Government appears, from its statements during debate in Parliament, to expect the CEHR to use its enforcement powers as rarely as the existing Commissions have used theirs; raising doubts as to whether the equality enactments will be any better enforced.

Recommendations

Recommendations include the following.

  • The Equality Act 2006 to be strengthened (see report for specific proposals); and the Commissions to make proper use of their enforcement powers.
  • The CEHR to be made more accountable; and Parliament and others to be more robust in scrutinising Commission activities.
  • Local authorities to be given powers to enforce parts of some of the provisions in the equality enactments.

The report’s author said today:

“From the Sex Discrimination Act 1975 to the Equality Act 2006, there has been a good deal of enactment but not a great deal of enforcement“.

“The Commissions neglecting their enforcement powers has meant abandoning some of the most vulnerable and abused people in Britain“.

“The CEHR needs to build on the invaluable work the Commissions have done and begin the essential work the Commissions should have done”.

“The fear is that Trevor Phillips will do for the six equality strands what he has been doing at the CRE for race relations”.

NOTES TO EDITORS

1. By direct enforcement powers, we mean the statutory powers which permit the Commissions to take enforcement action in their own names, as opposed to, in particular, the power to assist an individual in taking legal action.

2. key. CRE = Commission for Racial Equality; DRC = Disability Rights Commission; EOC = Equal Opportunities Commission.

 

SUMMARY TABLES FROM THE REPORT

Table 1: total use – by the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission – of enforcement powers common to all three Commissions.

Figures in Tables 1 and 2 are for the whole of Great Britain (Northern Ireland has its own equality commission).

 

press release table 1 

 

Table 2: use of Disability Rights Commission’s (DRC’s) power to make binding agreements and the Commission for Racial Equality’s (CRE’s) powers to enforce the Race Equality Duty.

 

 press release table 2

 

Notes on Tables:

* (1) Up to June 2006.   > (2) The DRC and EOC, but not the CRE, also had ongoing formal investigations on June 1 2006.  – (3) The DRC has entered into three binding agreements in lieu of enforcement action. It declined, however, ‘for confidentiality reasons’, to provide further information. We do not know, therefore, in which years (between 2000 and 2005) the agreements were entered into. # (4) The CRE did intervene in one such judicial review action (R (Elias) v Secretary of State for Defence (2005) EWHC 1435). # (5) According to the CRE, there are approximately 44,000 ‘public authorities’ subject to the race equality general duty. We believe (including on the basis of National Audit Office reports) that a substantial percentage of these are likely to have been in breach of the general duty.  ~ (6) The CRE declined, on the grounds that it related to an ‘ongoing matter’, to disclose who it issued its fourth compliance notice to. We have assumed, however, that it was issued in 2005.

BRIEF DETAILS OF EACH ENFORCEMENT ACTION SHOWN IN TABLES Formal investigations completed

2001: the Crown Prosecution Service, Croydon branch (CRE).
2003: HM Prison Service of England and Wales (CRE).
2004: access for, and inclusion of, ‘disabled’ people on the web (DRC).
2005:
(a) the Police Service in England and Wales (CRE).
(b) discrimination towards new and expectant mothers in the workplace (EOC).
(c) occupational segregation in IT, childcare, engineering, construction and plumbing (EOC).
(d) part-time and flexible working and women working below their full potential (EOC).

Non-discrimination notices served: The three commissions served one non-discrimination notice between them (served by the CRE on the London Borough of Hackney in 2000).

Persistent discrimination injunctions: The three commissions applied for one persistent discrimination injunction between them (applied for against Lidl UK GMbH by the EOC in 2004).
 
CRE race equality specific duties compliance notices issued: The CRE issued four compliance notices in relation to alleged failures to meet one or more of the race equality specific duties (on Conwy Borough Council: 2003, West Midlands Police: 2004, West Mercia Constabulary: 2004, and a fourth party which the CRE declined to name).

Brief explanations of main powers covered

Please see appendix (A) of full report for more thorough explanations.
n.b. ‘person’ should be taken to include companies, public authorities and other bodies (which are not a loose association), as well as individuals.
Formal investigations: The Commissions have broad powers to conduct ‘formal investigations’ for any purpose connected with the performance of their duties. Investigations may, if the specified requirements are met, be into whether a person has committed an unlawful act. For the purposes of a ‘formal investigation‘, the Commission may serve a notice – on a named person in a ‘named person’ investigation or on any person on the written authority of the Secretary of State – requiring the provision of information.

Non-discrimination notices: If a Commission becomes satisfied, in the course of a ‘formal investigation’, that a person has committed or is committing an unlawful act, it may serve a ‘non-discrimination notice’ on that person, which requires the person not to commit any further unlawful acts of the same kind.

Persistent discrimination injunctions: If it appears to a Commission that, unless restrained, a person is likely to commit an act of unlawful discrimination, it may, if certain conditions are met, apply to a court for an injunction restraining him or her from so doing. The conditions are that, within the last five years, the person has been served with a ‘non-discrimination notice’ or been the subject of a finding by a court or tribunal that they have committed an act of unlawful discrimination.

Binding agreements: Only the DRC is able to enter into agreements in lieu of enforcement action. If the Commission has reason to believe that a person has committed an unlawful act, it may enter into an agreement with that person by which ‘the Commission undertakes not to take any relevant enforcement action in relation to the unlawful act in question’ and ‘the person concerned undertakes not to commit any further unlawful acts of the same kind…’ and to take such action as may be specified in the agreement.

Instructions and pressure to discriminate and discriminatory advertisements: The equality Acts make it unlawful for a person, with authority over another person, to instruct that person to do an act of unlawful employment discrimination, or to procure or attempt to procure, the doing by him/ her of any such act; and also make it unlawful to publish ‘discriminatory advertisements’ for employment. In the case of either, the Commission may present to an employment tribunal a complaint that a person has done an act which is unlawful under the relevant sections.

Judicial review of failure to meet race equality general duty: If the CRE considers that a ‘public authority’ (which includes, for example, local authorities, police forces, government departments, and schools) has not met its general race equality duty, the Commission can challenge the authority’s actions, or failure to act, by means of a claim for judicial review.