Legal Briefing Note

The Equality and Human Rights Commission's powers to enforce the public sector equality duties

This note provides a summary of the key provisions of the Equality Act 2006 ('the Act') that give the Equality and Human Rights Commission ('the Commission') powers to enforce the public sector equality duties ('the duties')[1] .

(a)  Assessment under section 31

The Commission may assess the extent to which or the manner in which a person has complied with one or more of the duties (whether general or specific duties) under section 31 of the Act.

Schedule 2 of the Act contains supplemental provisions about assessments including terms of reference, representations, evidence, reports and recommendations. 

Before conducting an assessment the Commission is required to:
(a) prepare terms of reference,
(b) give the public authority notice of the proposed terms of reference,
(c) give the public authority an opportunity to make representations about the proposed terms of reference,
(d) consider any representation made, and
(e) publish the terms of reference once settled (Sch 2, para 4).

As part of the assessment process the Commission has the power to require a person to provide information or produce documents in his possession, or to give oral evidence.  It is an offence for a person to fail to comply with a notice without a reasonable excuse or to falsify evidence or make a false statement (Sch 2, paragraphs 9 - 14).

Once the assessment is complete the Commission will publish a report of its findings and may also make recommendations to any class of person (Sch 2, paras 15 & 16).  Courts and Tribunals may have regard to such findings although they will not be treated as conclusive (Sch 2, para 17). A person to whom a recommendation is addressed is required to have regard to it (Sch 2, para 18).

(b)  Compliance notice under section 32

If the Commission thinks that a public authority has failed to comply with one or more of the duties (whether general or specific duties) it has the power to issue a compliance notice under s 32 of the Act.  

A compliance notice would require the public authority to comply with the relevant duty and provide the Commission, within 28 days, written information of steps taken or proposed for the purpose of complying with the duty (s 32(2)).  The notice may also require a person to give the Commission other information within a period not exceeding three months (s32(3)).

In order to assess the extent to which or the manner in which a public authority has complied with one or more of the duties, the Commission may carry out an assessment referred to in section 31 of the Act (see above), but must do so prior to issuing a compliance notice in relation to a breach of any of the duties commonly referred to as general duties under or by virtue of -

  • section 76A of the Sex Discrimination Act 1975,
  • section 71(1) of the Race Relations Act 1976 or
  • section 49A of the Disability Discrimination Act 1995. (s32(4))

If, as a result of such an assessment, the Commission thinks that the public authority has failed to comply with a general duty, it may give the public authority a compliance notice as referred to above.  Such a notice would be based on the assessment (s32(4)(b)).

If the Commission thinks that a public authority, to which it has given a compliance notice has been given (whether for a breach of the general or specific duties), has failed to comply with a requirement of the notice, the Commission may apply to the relevant court for an order requiring it to comply (ss 32(8) & (9)).

(c)  Binding Agreement under s. 23

If the Commission thinks a public authority has failed to comply with a public sector duty, it may enter into a binding agreement with the public authority under which the Commission undertakes not to issue a compliance notice and the public authority undertakes to comply with the duty and to take, or refrain from taking, other specified action (which may include the preparation of a plan for the purpose of complying with the duty) (s 23(1) and 23(5)).

If the Commission thinks that a party to an agreement under section 23 has failed to comply, or is likely not to comply, with an undertaking under the agreement, the Commission can apply to a county court (in England and Wales) or the sheriff (in Scotland) for an order requiring the public authority to comply with its undertaking and take such other action as the court or sheriff may specify (ss 24(2) & (3)).

(d)  Judicial review and other proceedings under section 30

If a public authority that is subject to one or more of the duties fails to comply with such duties, the Commission can challenge the authority's actions (or failure to act) by judicial review under section 30 of the Act, which provides as follows:

'The Commission shall have the capacity to institute or intervene in legal proceedings , whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function.'

Notes

[1] The 'public sector equality duties' refers to the duties under or by virtue of section 76A, 76B or 76C of the Sex Discrimination Act 1975 (the gender equality duty), section 71 of the Race Relations Act 1976 (the race equality duty) and section 49A or 49D of the Disability Discrimination Act 1995 (the disability equality duty).  Each duty is made up of a general duty and various specific duties made under various regulations.

Last Updated: 13 Jan 2011