Monitoring and enforcement

The Commission is responsible for regulating the public sector equality duty. This guide summarises our approach to our regulatory role.  It aims to set out for public authorities and other interested parties how, in any particular situation, we promote compliance with the duty.

Read the guide here (Word | PDF)

Public authorities in England (and non-devolved bodies in Scotland and Wales) which are subject to the specific duties had until 31 January 2012 to publish information to demonstrate compliance with the general equality duty. Schools and pupil referral units had until 6 April 2012 to publish their information. The Commission published guidance to help public authorities decide what equality information they need to publish. If public authorities do not publish equality information as required by the specific duty regulations, they risk being subjected to legal challenge (including enforcement action by the Commission), as well as potential damage to their reputation.

The Commission undertook an assessment of the information published by public authorities (not including schools) between February and April 2012. This covered 1,159 public authorities in England. The websites of public authorities were reviewed, to assess to what extent they had published relevant and accessible information. The aims of the assessment were to

• identify whether equality information could be found and how accessible the information was
• determine how comprehensive the published equality information was
• establish whether there were differences in performance and/or approach among public authorities and sectors
• identify and disseminate examples of effective approaches and practice.

A report, Publishing equality information: Commitment, engagement and transparency sets out the findings of the assessment. The report not only looks at performance on the specific duty, but it also sets out what good practice looks like. The report concludes with a number of recommendations for public authorities on how to improve their performance. The findings in the report should enable public authorities to learn from each other and to improve the quality, extent and clarity of the equality information that they produce and publish, in order to improve their equality outcomes.

Public authorities in England (and non-devolved bodies in Scotland and Wales) which are subject to the specific duties had until 6 April 2012 to publish equality objectives. The Commission published guidance to help public authorities to develop their objectives. If public authorities do not publish equality objectives, as required by the specific duty regulations, they risk being subjected to legal challenge (including enforcement action by the Commission), as well as potential damage to their reputation.

The Commission undertook an assessment of the objectives published by public authorities between September and December 2012.  This covered 2010 public authorities in England. The websites of public authorities were reviewed, to assess to whether they had published equality objectives. The report documents the number and proportion of public authorities publishing objectives. Where objectives were published, it reports on:

• whether the objectives were explicitly linked to the general duty aims;
• what protected characteristics they covered;
• the functions they covered;
• whether there was a rationale given for the chosen objectives;
• whether the objectives were specific and measurable;
• whether the objectives were available in alternative formats.

The Equality Objectives report

Factsheets by sector assessed

• Colleges factsheet
• Government departments
• Local authorities
• National organisations
• NHS Commissioners
• Police
• Primary schools
• Probation trusts
• Secondary schools
• Universities

Using its unique powers, the Commission conducted a section 31 Assessment of the extent to which HM Treasury met its legal obligations to consider the impact of Spending Review decisions on protected groups. 

Enforcement

This section provides information on enforcement issues with regard to the equality duty.

The Equality and Human Rights Commission uses a range of strategies to ensure compliance with the equality duty, including:

Gathering intelligence on the duties

• Assessing equality information from national and local bodies including government departments.
• Undertaking research on progress around the equality duty in different sectors.
• Collating and promoting best practice on the equality duty.
• Compiling evidence of progress or non compliance in different sectors to support our legal and advisory work.
• The Commission undertakes enquiries into matters concerning equality and human rights.

Advice, information, promotion

• Promoting awareness about the equality duty.
• Producing information about the equality duty for public authorities and members of the public on our website.
• Advising individuals on what their rights are and how they can take action under the equality duty.
• Advising public authorities on technical aspects of the equality duty.

Legal action on the duties

• Taking legal enforcement action with authorities who are not complying with the equality duty.
• Using judicial review to challenge decisions by public authorities under the equality duty.
• Using the equality duty to challenge the priorities of public bodies. For example, our Map of Gaps enforcement work which focused on local authority service provision for women who have suffered violence under the previous gender equality duty.

Building capacity with partners to promote compliance

• Working with inspectorates to integrate equality into inspection frameworks.
• Promoting the equality duty through regional partnership work with public authorities.
• Developing the capacity of the voluntary sector and unions to use the equality duty to hold public authorities to account on equality issues.
• Working with partners to promote compliance with the equality duty in a range of sectors.

We select the most appropriate tool to ensure we achieve the best outcomes depending on the circumstances. For example, we recognise that working with organisations can, in appropriate cases, achieve wider and more sustainable change. The availability of our enforcement powers encourages organisations to work with us, so where appropriate, we have built positive, collaborative relationships rather than adopting an adversarial approach.

Legal powers

The Commission has strategically used its enforcement powers to bring about positive change with maximum and lasting impact. We have applied agreed criteria - set out in our legal strategy - to determine whether, when and how we might use our powers to best effect.

As a Commission, we have pursued a range of actions to secure compliance with the equality duties. The Commission has worked to support public authorities and to bring about outcomes which change organisational culture, policy and service provision. Within this context, we have undertaken extensive pre-enforcement action work with numerous authorities relating to all the equality duties.

Assessments

Where appropriate, we use our statutory enforcement power (section 31 of the Equality Act 2006) to assess the extent to which or the manner in which a person has complied with both the general and specific duty. In doing so, the Commission must make clear to the public authority the areas to be covered by the assessment and allow public authorities to make representations.

Compliance notices

The Commission has a power to enforce breaches of the general equality duty by serving a compliance notice upon completion of a formal assessment (under section 31 of the Equality Act 2006). It also has a power to enforce breaches of the specific duties by serving a compliance notice.

Judicial review

The Commission has a power to institute judicial review proceedings in matters of relevance to its functions including where a public authority has breached the general equality duty. 

Interventions

The Commission has a power to intervene in proceedings to assist the court in clarifying the law. The Commission has intervened in a number of legal cases and it will continue to do so. When it intervenes in a case, the Commission is not supporting one side or the other but offering expert advice to the court on how to interpret the law. It has already used this power extensively with the intention of ensuring that the courts set helpful legal precedents.

Agreements

Where the Commission suspects that a public authority is breaching the equality duty, it may enter into an agreement with the authority whereby the authority agrees to take certain steps to comply and in return the Commission agrees not to issue a compliance notice.

See our Legal and Policy section for more information on the Commission’s enforcement powers including our policy on reviewing our regulatory decisions.