The Women and Equalities Committee have produced a report into “Enforcing the Equality Act: the law and the role of the EHRC”.
Two Reasonable Access trustees, Doug Paulley and Esther Leighton, gave oral evidence to the Committee. Both are cited regularly throughout the report.
(A more accessible version made utilising the disability exemptions of the Copyright Act 2014)
Overall, we think this is a very positive report.
We welcome the robust conclusions that individualised enforcement of the Equality Act places an intolerable burden on individuals, that this fundamentally undermines compliance with the Act and that this must change.
We agree that the Equality and Human Rights Commission (EHRC) should make more use of its unique powers, and that other Regulatory, Investigative and Ombudsman bodies should be more proactive in monitoring and compelling compliance with the Act.
We also welcome the recommended change to legal aid, and the introduction of Qualified One-Way Costs Shifting – a critical issue on which Reasonable Access trustees actively campaign.
We are delighted that the Committee firmly rejected the Ministry of Justice and Government Equality Office responses, which had accepted current model of individual enforcement as unavoidable and “the nature of adversarial systems”. It is also great to expose the disparity between the financial and other remedies available, and the financial costs of enforcement.
We would disagree that the PSED and gender-pay gap reporting requirements are the only proactive duties in the Equality Act. Service providers are under an anticipatory duty to make reasonable adjustments for disabled people. (Employers should also be subject to a similar obligation.) Organisations are required to take reasonable actions to ensure accessibility before a disabled person attempts to access their services. It is a shame the Committee did not make recommendations that the EHRC enforce Action or Improvement plans as part of driving gradual systemic change.
While undertaking this enquiry, the committee was separately investigating the use of Non-Disclosure Agreements (NDAs) in settlements. The cross-over is apposite. The Committee recognised the negative impacts of NDAs and the risk of adverse costs on individuals complaining about discrimination. The report quotes Reasonable Access trustee Esther, who recommended unambiguous legal guidance stating that refusing an NDA should not be considered an unreasonable failure to settle. We are delighted that the committee has adopted this recommendation.
We were astonished to discover the EHRC’s range of powers, and how poorly and infrequently these have been used. The frequency and severity of reports – e.g. 50,000 yearly instances of one (easily recordable) type of discrimination for one protected characteristic in one geographical area – makes clear that the EHRC needs to be far more assertive.
Several regulatory, investigatory and ombudsman bodies made clear to the Committee that they had not heard of the Public Sector Equality Duty. We discovered that regulators, including the Financial Ombudsman Service, can make binding requirements forcing the organisations it regulates to make changes to policies and practices. The committee was clear that these bodies should not just rely on reports from individuals, but should proactively monitor, and compel, compliance with the Equality Act.
We were sad to note that the evidence in other witness submissions made clear that a range of protected characteristics experience similar burdens of enforcement, with which we are so familiar. While some aspects are unique to disability, such as “proof of legal disability”, we noted that organisations find other ways to exploit intrusive personal information when defending legal claims made on other protected characteristics.
We are reticent to be hopeful for meaningful change, given the Government’s insulting reply to the (excellent) 2016 Lords committee report on the Equality Act 2010 and Disability.
We expect the Government’s response in three months or so; though it may be delayed by the summer recess and by the focus on Brexit.
In an ideal world, the excellent recommendations in this report would make Reasonable Access redundant; however, we expect to continue in our work to support disabled people to challenge the discrimination they experience.
Absence of Disability from the Summary
We should note that the committee did not intend to shun ‘disability’ as a protected characteristic in the first sentence. They have reassured us that this was to reflect that while in other protected characteristics the Equality Act mandates equal treatment (formative equality), it mandates different treatment in disability as this is required to achieve something approaching equality of outcome (substantive or transformative equality). Despite this apparent “omission”, we feel that the overall report is an accurate representation of disability-related issues.
Reasonable Access is a small organisation led by disabled people. We want to empower other disabled people in the UK to assert and enforce their right to access through peer assistance and information provision.
In practice, this covers a range of activities including:
- Asking about disability access.
- Challenging disability access problems.
- Pushing back against access refusals.
- Making informal complaints about access failings.
- Dealing with poor responses to access problems and complaints.
- Escalating complaints to more formal and serious modes.
- Taking legal cases with and without lawyer representation and support.