Enforcement powers

Introduction

One of the Commission's key roles as a modern regulator is to use our enforcement powers. These powers are vested in the Commission by the Equality Act 2006.   This section signposts you to different aspects of our enforcement work.  For more information please download our Compliance and Enforcement policy. You can also find out about our enforcement work in our latest 'Legal enforcement snapshot'. 

Our enforcement powers

The Commission is extremely effective at resolving cases at an early stage, without the need for formal enforcement proceedings.  About 80 per cent of cases (approximately 99 to date) have been resolved in this way.  However, we will not hesitate to invoke our formal enforcement powers where this is necessary.

Inquiries

The Commission can conduct an inquiry into any matter which relates to sections 8 or 9 of the Equality Act, namely equality and diversity or human rights. There is no specific standard of evidence needed to trigger an inquiry. The Commission does not need to suspect that there has been a breach of equality or human rights legislations to launch an inquiry.  For details of our formal Inquiries:

Assessments

Assessments are used to test compliance with public sector equality duties and enable the Commission to scrutinise compliance by particular public authorities with the race, disability or gender equality general and specific duties. Assessments can be used to obtain evidence for further enforcement action to secure compliance, as well as identifying areas of best practice in the performance of the duties.

We have undertaken a Public sector duty assessment into the Department for Work and Pensions, through Jobcentre Plus

Investigations

The purpose of an investigation is to establish whether a person or organisation has acted in breach of the Equality Act 2010. The Commission can carry out an investigation where it has evidence to suspect that an unlawful act may have been committed.  

When the Investigation is complete the Commission will publish a report of its findings which can include recommendations. If it finds that an unlawful act was committed it may also issue an unlawful act notice. The person being investigated has the right to make representations including on the terms of reference of the investigation and the draft report of the Commission's findings. The Commission can also carry out an investigation into whether a person has complied with an unlawful act notice or taken the steps they agreed to take under a formal agreement. 

Unlawful Act Notice

If an investigation finds that a person has committed an unlawful act the Commission can issue them with an unlawful act notice. The notice will set out what the unlawful act was and may require the preparation of an action plan to avoid it being repeated or continued. The Commission can recommend action to be taken for that purpose.

Agreements

The Commission can enter into a formal agreement with a person who it believes has committed an unlawful act. This will involve putting in place an action plan. In many instances an agreement will be entered into as an alternative to taking other formal enforcement action. Agreements can be entered into even where there has been no formal investigation. Entering into an action plan is not taken as an admission that there has been an unlawful act.

Alternatively the Commission may suspend an investigation on the basis of a section 23 agreement that we will not investigate or issue unlawful act notice provided that the other party undertakes not to commit an unlawful act and takes specified actions.

Once the agreement and action plan is in place the Commission will keep in regular contact and require the organisation to report regularly on progress. During the monitoring phase of an agreement, we frequently build a close working relationship with the organisation in question, generating considerable cooperation and goodwill, and leading in some cases to those organisations becoming champions of best practice in equality and advocates for the work of the Commission.

However, if there is a failure to comply with an undertaking in the agreement or we think that compliance is unlikely, the Commission can take further action through the courts.

See also:

Compliance notice

Where the Commission thinks that a public authority has not complied with a public sector duty, we have the power to serve a compliance notice. The notice may require compliance with the duty or provide an opportunity for the written proposal to show the steps which will be taken to ensure compliance. This written information must be produced to the Commission within 28 days of receipt of the compliance notice.

A notice may also require further information to be produced to the Commission for the purposes of assessing compliance.

A person who receives a compliance notice must comply with it. Failure to comply can result in the Commission applying to the relevant court for an order requiring compliance. Failure to comply with the court order is a criminal offence.

Legal enforcement case studies

In order to illustrate our enforcement work we have summarised examples of enforcement action that we have taken since October 2007.

Requesting a review of one of our regulatory decisions

When deciding to take regulatory steps or action the Commission makes every effort to comply with its Compliance and Enforcement policy and with the Regulators’ Code. 

If your organisation is directly affected by one of our decisions relating to the use of our enforcement powers, and you think that we have got it wrong, you may ask us to carry out a review.

Scope

This policy applies to a decision by the Commission to use the following statutory powers against your organisation or to require you to provide information or take steps in order to avoid being subject to one of these powers:

  • To conduct a formal inquiry (Section 16 Equality Act 2006)
  • To conduct a formal investigation (Section 20 Equality Act 2006)
  • To issue an unlawful act notice (Section 21 Equality Act 2006)
  • To enter into an agreement not to commit an unlawful act (Section 23 Equality Act 2006)
  • Legal proceedings to prevent or restrain an unlawful act (Sections 24 and 25 Equality Act 2006)
  • To bring a claim for judicial review (Section 30 Equality Act 2006)
  • To conduct a formal assessment of compliance with the Public Sector Equality Duty (Section 31 Equality Act 2006)
  • To issue a compliance notice (Section 32 Equality Act 2006).

Grounds for review

A decision by the Commission to take regulatory steps or action will only be eligible for a review if:

 a) You are able to provide new and significant evidence or information that is material to the decision, including information about any steps you have taken that you think we have not taken into account

AND/OR

 b) You are able to provide reasons why you consider that the decision fails to satisfy one or more of the principles underlying the Commission’s regulatory role: proportionality, accountability/transparency, and consistency.

Process

  1. You must put the request for a review in writing, giving full reasons and providing any new evidence or information that the Commission is being asked to consider.
  2. The request for a review must normally be received within one calendar month of the decision to which it relates.
  3. The Commission will acknowledge receipt of the request for a review within five working days.
  4. A senior lawyer in the Commission’s legal team, not previously involved in the matter, will assess whether one or both of the review criteria are met
  5. Before making this assessment, the senior lawyer may first write to you asking for more information to support the review request, or for clarification of new evidence or information already provided.
  6. The senior lawyer will respond within 20 working days of receiving the review request or within 10 days of receiving any additional information from you, whichever is later. 
  7. If the senior lawyer considers that the conditions for a review have not been met, he or she will inform you of this and the decision will be final.
  8. If the senior lawyer decides that the conditions for a review have been met, he or she will draft a report and recommendation for the Chief Legal Officer and inform you that this has happened, giving you an indicative date for a final response.
  9. Within five working days of the Chief Legal Officer’s decision, the senior lawyer will write to inform you of the outcome of the review.
  10. If you remain dissatisfied with the outcome of the review, you may appeal in writing within 10 working days of receiving the decision. The appeal will be considered by the Chair of the Commission’s Audit and Risk Committee within one calendar month. The Chair’s decision will be final.

Equal opportunities

The Commission is committed to equal opportunities and our aim is to make this review policy easy to use.  We will take steps to accommodate any reasonable adjustments you may have to enable you to access the review process, such as providing correspondence in alternative formats and/or providing such other assistance that you might reasonably require.

Last Updated: 26 May 2015