How we decide whether to use our powers

As a regulator, we follow the Regulators’ Code relating to all our relevant functions. As a national human rights institution we follow the United Nations Principles relating to the Status of National Institutions (the ‘Paris Principles’).

Under the Public Sector Equality Duty, in fulfilling our roles we ‘have due regard to’ (consciously consider) the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Equality Act 2010
• advance equality of opportunity between people who share a relevant protected characteristic and those who do not
• foster good relations between people who share a relevant protected characteristic and those who do not.

From 2022 to 2025 the priorities for our litigation and enforcement work will relate to these areas of focus. We are interested in hearing about cases or issues related to these areas. However, we will also respond to significant emerging or new challenges to equality and human rights.  

If an issue relates to one of our priority areas, or is a significant, emerging or new challenge to equality and human rights that we are prioritising, we have a number of other considerations that inform our decisions.

We will consider whether:

• the likely impact we will have justifies the amount of resources we will need to achieve it
• there are more effective ways of achieving the desired outcome
• we are best-placed to act and, if so, whether we should do so in partnership with others (such as other regulators, inspectorates or civil society organisations) to achieve the desired outcome
• taking action would align with our other work, to increase our impact.

We will always act proportionately, balancing the scale and seriousness of the problem against the size and resources of the organisation involved.

In addition, when considering using our litigation powers, we:

• consider whether a successful outcome will preserve or strengthen the interpretation or application of equality and human rights law, or risk setting an adverse precedent
• carry out a robust assessment of the legal merit of the case and the probability of achieving the change that we want
• use our power to intervene only if we are satisfied that we will add value to the proceedings and assist the court in its determination
• consider whether we are the most appropriate organisation to fund a case and whether there are alternative sources of funding available (for example, legal aid).

When we use our enforcement powers, we will:

• promote the outcomes of using them to encourage others to comply with equality and human rights law
• publish information about these outcomes when it is lawful and appropriate to do so.

We will not enter into confidentiality agreements with organisations, either when a case comes to an end or a settlement has been reached, other than in exceptional circumstances.

We will also take into account the following factors when deciding whether to use our legal powers.

The scale of the problem

The greater the scale of the problem, across any or all of these considerations, the more likely we are to use our legal powers. We will consider the:

• size (the number of people affected by it)
• severity (the seriousness of the problem on a person or a group, including whether it affects those in the most vulnerable situations)
• persistence (how long the problem has lasted)
• prevalence (whether the same or similar issues are affecting people across a number of organisations or sectors).

The impact we will have

The greater the impact our action will have, the more likely we are to use our legal powers. We will consider what impact we will have on the issue by identifying:

• the change we want to see overall
• which of our powers we could use to bring about that change
• which of our powers will be the most effective and proportionate way to achieve it
• the extent to which using our legal powers will make it happen, taking into account action that may be taken by others.

Working in England, Wales and Scotland

We will assess what potential impact any issue we consider will have in England, Wales and Scotland as applicable. If an issue only has an impact in one nation that won’t be a reason for us not to act. We will consider scale and impact in each nation and may decide to act in one nation but not the others.

Evidence from external stakeholders

When deciding whether to use our legal powers, we will consider appropriate evidence from relevant stakeholders, for example:

• United Nations treaty bodies
• parliamentary committees
• civil society organisations in England, Wales and Scotland.

We sometimes run legal support schemes on an issue related to our priority areas. This allows us to:

• improve access to justice for people affected by a particular issue
• make sure those we regulate know their legal duties, understand the consequences of not meeting those duties, and take action to improve their practice
• develop an evidence base to help us improve our understanding of the issues affecting people in a particular area
• identify matters that we can work on beyond the legal support scheme to achieve wider positive change.

We publish specific criteria for different schemes, depending on their focus, but we take the following general approach when deciding whether to assist with a case.

We will:

• assess the merit of the case and will not usually assist if the chances of success are less than 50%
• usually only provide support where we think it will help someone to access justice in circumstances where they might not otherwise be able to do so; for example, where individuals cannot access other forms of funding (such as legal aid, or from unions or insurance)
• usually, but not exclusively, offer assistance for first-instance cases.

We also:

• gather information and intelligence on the cases we assist to identify what prevents people from accessing justice, and the nature and extent of any unlawful discrimination
• use any intelligence we gather to inform our policy and compliance work
• consider enforcement action against organisations found to have discriminated unlawfully.