Our enforcement powers

When organisations fail to comply with equality and human rights laws, we can use our enforcement powers to resolve the issue.

As the national equality regulator responsible for enforcing the Equality Act 2010, our duties (as set out in the Equality Act 2006) include reducing inequality, eliminating discrimination, and promoting and protecting human rights.

We have a range of enforcement powers, set out in the Equality Act 2006, which include:

• investigations (Section 20)
• unlawful act notices (Section 21)
• action plans (Section 22)
• agreements (Section 23)
• injunctions (in Scotland, interdicts) (Section 24)
• public sector duty assessments (Section 31)
• public sector duty compliance notices (Section 32).

If we suspect that an organisation has committed an unlawful act we can carry out an investigation. Section 20 and Schedule 2 of the Equality Act 2006 explain that we have to:

• provide draft terms of reference for the investigation and allow the organisation, or their nominated legal representative, to make representations about the draft terms of reference
• consider any representations and publish the final terms of reference
• gather and analyse any relevant evidence, including representations from third parties
• provide any organisation we find to have committed an unlawful act with a draft report and allow it time to make written representations about the draft
• consider any representations before publishing the final report.

In seeking to gather evidence, we might give notice under Schedule 2 paragraph 9 of the Equality Act 2006. This means the organisation, or any person, has to provide any information and documents it has or give oral evidence. The organisation or person may apply to the county or sheriff court, under Schedule 2 paragraph 11 of the Equality Act 2006, to have the notice overturned on the grounds that it is unnecessary or unreasonable.

If we think an organisation or person has not complied, or is likely not to comply, with a notice we have given them under schedule 2, paragraph 9, we can apply to the court for an order requiring the organisation or person to take the steps necessary to comply with the notice. The organisation or person will commit an offence if it:

• fails to comply with a notice or court order
• falsifies anything provided in accordance with a notice or court order
• gives false oral evidence in response to a notice without a reasonable excuse for doing so.

An organisation or person convicted of such an offence will be liable for a ‘level 5’ fine, which means that there is no maximum limit on the amount that it may be fined.

If we think that an organisation has breached the Equality Act 2010 we can, at any time, give it the opportunity to enter into an agreement under Section 23 of the Equality Act 2006. In doing so the organisation voluntarily undertakes to comply with the relevant legislative provision we think it has breached. This can be done instead of a Section 20 investigation or Section 31 assessment, or as an alternative to continuing with either of those if they have already started.

If an organisation enters into a Section 23 agreement, we monitor compliance with the agreement and implementation of any action plan agreed as part of it. If it has complied, no further enforcement action will be taken. The duration of the agreement, and steps under the action plan, may vary during the monitoring period to further the purpose of the agreement.

If we think an organisation is likely to commit an unlawful act, or if an organisation enters a Section 23 agreement but does not comply, we can apply for an order under Section 24 to the county court in England and Wales, or the sheriff court in Scotland. A Section 24 order would restrain the organisation from committing the unlawful act, or, in the case of a Section 23 agreement, require the organisation to comply.

In cases where an organisation does not comply with a Section 23 agreement, we could decide not to seek a Section 24 order and instead vary the agreement. However, this requires exceptional circumstances, and we would expect the organisation to anticipate not complying and seek a variation to the agreement with us before any breach of the agreement.

The general equality duty

Under Section 31 of the Equality Act 2006, we can assess the extent to or the manner in which a public authority has complied with Section 149 of the Equality Act 2010 (the Public Sector Equality Duty). We do not need to suspect that an unlawful act has occurred before making an assessment.

A Section 31 assessment will take a format similar to a Section 20 investigation, as set out above. This may include serving a notice under Schedule 2 paragraph 9 of the Equality Act 2006, requiring an organisation to provide any information and documents they have or to give oral evidence. The organisation may apply to the county court in England and Wales or sheriff court in Scotland under Schedule 2 paragraph 11 to have the notice cancelled on the grounds that it is unnecessary or unreasonable.

We can apply to the court for an order requiring the organisation to take the necessary steps to comply with the notice. An organisation will commit an offence if it

• fails to comply with a notice or court order
• falsifies anything provided in accordance with a notice or court order, or
• gives false oral evidence in response to a notice or court order without a reasonable excuse for doing so.

An organisation convicted of such an offence will be liable for a ‘level 5’ fine, which means that there is no maximum limit on the amount it may be fined

If the conclusion from the assessment is that the organisation has failed to comply, we can issue a notice under Section 32. The notice will require the organisation to comply with the general equality duty. Within 28 days of the notice the organisation must provide us with written information of the steps it has taken or proposes to take to comply with this duty.

Where we think that an organisation has failed to comply with a notice given under Ssection 32, we can apply to the High Court in England and Wales or the Court of Session in Scotland for an order requiring it to comply under Section 32(8).

The specific equality duties

We can also issue a compliance notice when we think that an organisation has not complied with the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017, the Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 or The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, as amended. We do not need to conduct an assessment beforehand. We can do this, for example, if a public sector organisation fails to comply with its duties under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017.

Where we think that an organisation has failed to comply with a notice given under Section 32 we can apply to the County Court or the Sheriff Court in Scotland for an order requiring it to comply.