Using section 23 agreements to help organisations improve their approach to equality

As the regulatory body responsible for enforcing the Equality Act 2010 (‘the Equality Act’) we have a range of powers available to us. We often use our power to enter into legally binding agreements. These are known as ‘section 23’ agreements because that is the section in the Equality Act 2006 that the power comes from.  

By agreeing to a section 23 agreement, an organisation commits to not breaching equality law, usually in a specific area where there have been previous concerns.

The agreement generally includes an action plan to help address the issues which may have led to unlawful conduct (such as discriminatory behaviour) occurring. The organisation then commits to delivering it over a set period of time.

Each action plan will differ depending on the issues involved, but usually they include requirements like providing equality training for staff and implementing new policies and procedures.

We can enter a section 23 agreement when we have evidence that an organisation may have breached the Equality Act. Although some agreements are signed following a court judgment, we do not need a judicial finding that an unlawful act has occurred before we enter an agreement.

Section 23 agreements are legally enforceable and we will initiate court action to enforce an agreement if we need to.

For example, over the last few years we’ve had a focus on tackling harassment in the workplace. We have published detailed guidance for employers on what they should do to protect their employees from harassment, including sexual harassment.

We’ve also signed section 23 agreements with several organisations that had received Employment Tribunal judgments against them in relation to harassment, such as the DWP, Highways England and Sainsbury's.

We always remember that we are accountable to the public and we need to work as effectively as possible to make Britain fairer. We have a range of regulatory tools and we must consider the most proportionate response to the situation. Section 23 agreements can also be more cost effective than launching a lengthy formal investigation or taking court action.

We want to develop a good working relationship with the organisations who sign these agreements – it’s not about catching them out.

Regular monitoring and feedback mean we can address any potential problems with delivering the action plan early on. It also means we can support the organisation to do the right thing.

Sometimes we approach an organisation because we think there’s been a breach of equality law but they don’t engage with us. It is voluntary for an organisation to enter into a section 23 agreement. If an organisation does not work with us, we will consider using our other legal or regulatory powers.

If we carry out a formal investigation and potentially find unlawful acts have taken place, this is likely to be a lot more disruptive and damaging to an organisation than working with us through a section 23 agreement. Developing good practices that strengthen equality and diversity can also reduce the risk of expensive legal action and reputational damage. Our experience is that organisations who work with us can also improve staff engagement scores and reduce complaints and grievances.

We are a prescribed whistleblowing organisation, so if an employee has information that their employer is breaching equality law they can report their concerns to us.

For example, in the Pontins case we received information from a whistleblower employed by the holiday company. The whistleblower alleged that the company used a discriminatory booking policy which excluded Gypsies and Travellers.

Our previous section 23 agreements have been based on evidence from a range of sources, including court judgments, whistleblower complaint and submissions to us.

Lawyers and other advice providers can also contact us about potential breaches that might be addressed through a section 23 agreement.