Businesses ‘feel free to discriminate’ because equality law is not being enforced

Committee of MPs calls for burden of proof in discrimination cases to be shifted towards employers and ‘bolder’ investigations

MPs have called for the burden of proof in discrimination cases to fall on employers rather than those making allegations, after a new report found businesses were “not afraid to discriminate” because they knew they were unlikely to be held to account.

Members of the Women and Equalities Committee (WEC) said the current approach to enforcing equality law was “no longer fit for purpose” and a new strategy was needed to provide a sustainable deterrent for employers guilty of “institutional and systemic discrimination”.

In a report released today into its year-long investigation of the enforcement of the 2010 Equality Act, the WEC said the current enforcement approach, which relies on individual victims initiating legal action, dated back to the 1960s.

It called for a new system that put the onus on employers, public authorities and service providers to enforce the Equality Act, suggesting individuals should rarely need to challenge discrimination in courts.

The committee also questioned the effectiveness of the Equality and Human Rights Commission (EHRC), the statutory body created to promote equality laws. 

It said that during separate inquiries into a number of discrimination issues – including pregnancy and maternity discrimination, transgender equality, disability, workplace dress codes and older people in the workplace – the WEC identified widespread problems with enforcement that it linked to the EHRC.

Maria Miller, Conservative MP and chair of the WEC, said creating a fairer society where people were not treated differently because of the colour of their skin, sex, gender, sexuality or religion was “central to British values”. 

“In our first four years, in inquiry after inquiry, the WEC has heard abundant evidence of the destructive impact discrimination has on people’s lives, as well as the heavy cost that puts on society and public services,” Miller said.  

“One thing is absolutely clear: the burden of enforcement must shift away from the individual. We need a fundamental shift in approach, and our report shows how to do it.” 

In its report, the WEC said individuals were facing discrimination because “employers and service providers are not afraid to discriminate, knowing that they are unlikely to be held to account”.

Claire McCartney, diversity and inclusion adviser at the CIPD, said HR professionals had a crucial role in ensuring employees were safe at work and free from discrimination. “[HR] needs to work with business leaders and employees to establish robust policies to counter any potential discrimination at work,” she said. “There should be a clear process communicated to all staff about how to raise a complaint and to whom, so that everyone in the organisation understands how to raise any concerns and what steps will be taken.” 

McCartney added that the current government consultation on creating a single labour market enforcement body should take into account the effectiveness of the existing enforcement bodies, including the EHRC, and focus on how to improve the system overall to prevent systemic issues such as harassment and discrimination. 

The WEC report recommended that the EHRC “refocus its work” and “be bolder in using its unique enforcement powers”. It said the EHRC should publish data on its enforcement activity, including summaries of the facts of cases alongside information on the outcomes, which would act as a deterrent to discrimination for employers. 

It added that legal obligations on employers under the Equality Act should be “explicit and enforceable”, and said employers had to contend with rules that were “unclear, inconsistently applied or not taken properly into account” by the enforcement bodies. 

The WEC said a “critical mass” of cases was needed to build a culture where compliance with the Equality Act became the norm, but that for this to happen there needed to be changes to the courts and tribunals system and “significantly greater action” by the EHRC. 

A spokesperson for the EHRC said it was always looking to improve and had doubled the number of legal cases it had undertaken in the last few years, as well as starting a number of high-profile investigations.

They added: “Taking high-profile cases, and our investigations into equal pay at the BBC and antisemitism in the Labour Party, show that we will use our powers without fear or favour to tackle injustices in our society.

“However, the best way to tackle the root causes of inequality and secure a fairer Britain is by using a combination of our research and policy expertise and our unique legal powers to expose discrimination, ensure public bodies and business comply with their legal duties and hold them to account.”