The Women and Equalities Committee has recommended that the emphasis for raising workplace discrimination issues should lie with employers, public authorities and service providers, rather than individual employees.
The Committee published its tenth Enforcing the Equality Act: The law and the role of the Equality and Human Rights Commission report on Tuesday 30 July 2019 after conducting a year-long inquiry. This primarily found that the enforcement of equality law, which centres around individuals challenging discrimination cases in courtrooms, is no longer fit for purpose.
The report found that employees had experienced trouble with enforcement in areas such as pregnancy and maternity discrimination, transgender equality, disability and the built environment, workplace dress codes, age discrimination and sexual harassment in the workplace.
The Women and Equalities Committee stated that although individuals should still have the right to challenge discrimination cases, this should rarely be needed.
Maria Miller (pictured), committee chair, said: “One thing is absolutely clear: the burden of enforcement must shift away from the individual. We need a fundamental shift in approach.”
The report proposed that a critical mass of cases be developed to inform employers and organisations about their legal duties, making adherence to existing equality law a priority for all businesses and ensuring that the obligations for employers, public authorities and service providers are explicit and enforceable. The report also suggests a move away from the current heavy reliance on using individual litigation to create precedents.
In particular, the report stated that the Equality and Human Rights Commission (EHRC) must refocus its work and be bolder in using its unique enforcement powers, publicising its actions to enable compliance and act as a deterrent.
The Committee has recommended that the government’s labour market enforcement director should play a fundamental role, alongside the proposed new single labour market enforcement body.
Miller added: “Employers and service providers are not afraid to discriminate, knowing that they are unlikely to be held to account. We need a critical mass of cases to build a culture where compliance with the Equality Act is the norm.
“The EHRC must overcome its timidity. It has unique powers, limited resources and must use them for maximum impact. It should make regulators, inspectorates and ombudsmen not only key partners in creating a critical mass of enforcement action but also key targets for enforcement action when those same regulators, inspectorates and ombudsmen fail to meet their own equality duties.”
Andrew Weir, head of employee relations and advocacy at Moorepay, said: “Calling for the burden of proof in discrimination cases to shift from the individual to employer would mark a step change in employee relations, but it is one that is in tune with the times and should be welcomed.
“While some employers will see this as unwelcome interference, the reality is that without the burden of proof shifting to the employer, some [organisations] will never take this seriously and act. Too many employers still see HR as a reactive organisational process rather than a proactive tool to help motivate, develop and retain their people, as well as ensuring compliance with the letter and spirit of equality laws.
“If implemented well, this process will save [organisations] time, money and the emotional drain of legal and tribunal cases. It also provides a better way of doing business and a fair and decent working environment.”