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When I was applying for the Legal Director role at the Equality and Human Rights Commission (EHRC) at the end of 2019, I did not imagine that the only time I’d see my new colleagues in person would be during the job interview. It’s only recently I’ve even set foot in the EHRC’s main office in my native Manchester.
The world changed massively between my decision to apply for this role and taking up post. It’s changed even more in the year that’s followed, but one thing is very clear: the role of the country’s national equality body and human rights institution is more vital than ever. The pandemic has affected almost every area of our work, from the rights of ethnic minority people on the frontline of healthcare and other vital services, to the tragic impact the virus has had on older people in care homes.
Prior to joining the EHRC I spent 11 years at the Information Commissioner’s Office specialising in freedom of information law. The work we do at the EHRC is similarly important, and perhaps more so, as it is far less abstract and affects people’s lives in a far more obvious and direct way. Having started my career in private practice, it is this direct link to improving individual lives, as well as creating systemic change that drew me to this position.
To drive this change, the EHRC has a unique set of statutory powers to uphold equality and human rights law. We can provide assistance for legal proceedings and we can intervene in cases taken by others, to give expert assistance to the court. For example, earlier in the year we supported a legal challenge against the Secretary of State for Health and Social Care, seeking to ensure that clinically vulnerable patients were provided with information in a format they could access during the pandemic.
If we think a public body has breached the Equality Act 2010 or the Human Rights Act 1998 we can issue judicial review proceedings in our own name. We also have the right to seek an injunction restraining an organisation if we think it’s likely that it will commit an unlawful act under the Equality Act.
Where we suspect that an unlawful act has already been committed, we have the power to investigate and we can require action to ensure compliance with equality laws. Since I joined the EHRC we’ve published the findings of our investigations into antisemitism in the Labour Party, equal pay at the BBC and unlawful pre-employment health questions at Elite Careplus Ltd. We also carried out an assessment of the Home Office for its compliance with the Public Sector Equality Duty in relation to the Windrush scandal and have signed a legally binding agreement with them, committing them to a two-year action plan of improvements which we are monitoring.
We can work with organisations that have breached their obligations but which want to improve, again agreeing legally-binding steps they can take to make sure they are complying in future. This effectively protects individuals from discrimination while saving the need for litigation. Over the last year we’ve used this power to great effect with organisations as diverse as Pontins (following a whistle-blower giving us evidence that the company was discriminating against Gypsies and Travellers) and the Department of Work and Pensions (following an Employment Tribunal claim against it for failing to protect a Black member of staff from race and age discrimination).
Naturally, as a regulator, we can also issue guidance and advice. As the country entered its initial lockdown we wrote directly to the Prime Minister highlighting key equality and human rights issues which needed to be considered as the country responded to the pandemic. We subsequently used our powers to advise the British Medical Association and the Scottish Government’s Chief Medical Officer on their clinical and ethical guidance and, as workplaces closed and difficult decisions were being made, we produced new guidance to help ensure employers did not overlook equality law.
Before the pandemic, we voiced longstanding concerns about racial inequalities across many aspects of society. COVID-19 highlighted these inequalities, particularly racial inequality in health and social care workplaces. In response to this we launched an inquiry into the experiences of lower paid ethnic minority people working on the health and social care frontline – we expect to publish the findings from this inquiry in the near future.
Of course, the scope for using our powers is constrained by our budget. We have faced significant cuts over the last decade, as has much of the public sector. Even if our budget were twice the size we would still need to be very selective with how we use our litigation and enforcement powers.
In response to this, the EHRC is a strategic litigator: we will generally only take legal action where we believe we can clarify the law, set important legal precedents, or affect large numbers of people or those in the most vulnerable situations. We rely on our stakeholder networks, most importantly those in the legal profession, to let us know about important upcoming cases that we might want to be involved with.
A recent example, which attracted much media comment, was our intervention in Forstater v The Centre for Global Development, concerning the nature of a philosophical belief (in that case in relation to a gender critical belief) that attracts protection under the legislation we regulate.
With every high profile action we take we get calls for us to take action in many different areas. A case in point were the calls for us to commence an investigation into Islamophobia in the Conservative Party, following our investigation into antisemitism in the Labour Party. We won’t use our powers unless there is good reason for us to believe that the law has been broken and that we can have significant impact by carrying out a formal investigation. As a proportionate regulator we carefully consider the balanced use of our powers. In the case of the independent investigation into Islamophobia commissioned by the Conservative Party, Professor Singh has kept us informed of his progress throughout. We have been assessing the report alongside the investigation’s terms of reference and have written to the Conservative Party regarding next steps. These processes inevitably take some time.
Back in 2019 we published our litigation and enforcement policy which explains our decision-making process for taking legal action. However, a few things have changed since that policy was published, and we have adapted to respond to the unique challenges posed by COVID-19. We continue to focus on the wider aims identified within our 2021-22 strategic plan, but within these we are determined to use our powers to tackle areas of discrimination that have been caused or worsened by the pandemic, particularly within work, education and institutions. I’d encourage you to respond to our consultation on our future proposals and share your views with us.
In all of this work, we depend on our partners in the legal profession to make us aware of potential cases that relate to any of our five strategic aims.
If you think you have a matter that may be of interest, or would simply like to have an informal discussion about a case or issue, our legal helpline is open to all lawyers and professional advisers. You can also refer cases directly via legalrequest@equalityhumanrights.com. If doing so, please include a summary of the facts, background and legal issues, and flag any important deadlines.
Adam Sowerbutts is Legal Director at the Equality and Human Rights Commission (EHRC).
When I was applying for the Legal Director role at the Equality and Human Rights Commission (EHRC) at the end of 2019, I did not imagine that the only time I’d see my new colleagues in person would be during the job interview. It’s only recently I’ve even set foot in the EHRC’s main office in my native Manchester.
The world changed massively between my decision to apply for this role and taking up post. It’s changed even more in the year that’s followed, but one thing is very clear: the role of the country’s national equality body and human rights institution is more vital than ever. The pandemic has affected almost every area of our work, from the rights of ethnic minority people on the frontline of healthcare and other vital services, to the tragic impact the virus has had on older people in care homes.
Prior to joining the EHRC I spent 11 years at the Information Commissioner’s Office specialising in freedom of information law. The work we do at the EHRC is similarly important, and perhaps more so, as it is far less abstract and affects people’s lives in a far more obvious and direct way. Having started my career in private practice, it is this direct link to improving individual lives, as well as creating systemic change that drew me to this position.
To drive this change, the EHRC has a unique set of statutory powers to uphold equality and human rights law. We can provide assistance for legal proceedings and we can intervene in cases taken by others, to give expert assistance to the court. For example, earlier in the year we supported a legal challenge against the Secretary of State for Health and Social Care, seeking to ensure that clinically vulnerable patients were provided with information in a format they could access during the pandemic.
If we think a public body has breached the Equality Act 2010 or the Human Rights Act 1998 we can issue judicial review proceedings in our own name. We also have the right to seek an injunction restraining an organisation if we think it’s likely that it will commit an unlawful act under the Equality Act.
Where we suspect that an unlawful act has already been committed, we have the power to investigate and we can require action to ensure compliance with equality laws. Since I joined the EHRC we’ve published the findings of our investigations into antisemitism in the Labour Party, equal pay at the BBC and unlawful pre-employment health questions at Elite Careplus Ltd. We also carried out an assessment of the Home Office for its compliance with the Public Sector Equality Duty in relation to the Windrush scandal and have signed a legally binding agreement with them, committing them to a two-year action plan of improvements which we are monitoring.
We can work with organisations that have breached their obligations but which want to improve, again agreeing legally-binding steps they can take to make sure they are complying in future. This effectively protects individuals from discrimination while saving the need for litigation. Over the last year we’ve used this power to great effect with organisations as diverse as Pontins (following a whistle-blower giving us evidence that the company was discriminating against Gypsies and Travellers) and the Department of Work and Pensions (following an Employment Tribunal claim against it for failing to protect a Black member of staff from race and age discrimination).
Naturally, as a regulator, we can also issue guidance and advice. As the country entered its initial lockdown we wrote directly to the Prime Minister highlighting key equality and human rights issues which needed to be considered as the country responded to the pandemic. We subsequently used our powers to advise the British Medical Association and the Scottish Government’s Chief Medical Officer on their clinical and ethical guidance and, as workplaces closed and difficult decisions were being made, we produced new guidance to help ensure employers did not overlook equality law.
Before the pandemic, we voiced longstanding concerns about racial inequalities across many aspects of society. COVID-19 highlighted these inequalities, particularly racial inequality in health and social care workplaces. In response to this we launched an inquiry into the experiences of lower paid ethnic minority people working on the health and social care frontline – we expect to publish the findings from this inquiry in the near future.
Of course, the scope for using our powers is constrained by our budget. We have faced significant cuts over the last decade, as has much of the public sector. Even if our budget were twice the size we would still need to be very selective with how we use our litigation and enforcement powers.
In response to this, the EHRC is a strategic litigator: we will generally only take legal action where we believe we can clarify the law, set important legal precedents, or affect large numbers of people or those in the most vulnerable situations. We rely on our stakeholder networks, most importantly those in the legal profession, to let us know about important upcoming cases that we might want to be involved with.
A recent example, which attracted much media comment, was our intervention in Forstater v The Centre for Global Development, concerning the nature of a philosophical belief (in that case in relation to a gender critical belief) that attracts protection under the legislation we regulate.
With every high profile action we take we get calls for us to take action in many different areas. A case in point were the calls for us to commence an investigation into Islamophobia in the Conservative Party, following our investigation into antisemitism in the Labour Party. We won’t use our powers unless there is good reason for us to believe that the law has been broken and that we can have significant impact by carrying out a formal investigation. As a proportionate regulator we carefully consider the balanced use of our powers. In the case of the independent investigation into Islamophobia commissioned by the Conservative Party, Professor Singh has kept us informed of his progress throughout. We have been assessing the report alongside the investigation’s terms of reference and have written to the Conservative Party regarding next steps. These processes inevitably take some time.
Back in 2019 we published our litigation and enforcement policy which explains our decision-making process for taking legal action. However, a few things have changed since that policy was published, and we have adapted to respond to the unique challenges posed by COVID-19. We continue to focus on the wider aims identified within our 2021-22 strategic plan, but within these we are determined to use our powers to tackle areas of discrimination that have been caused or worsened by the pandemic, particularly within work, education and institutions. I’d encourage you to respond to our consultation on our future proposals and share your views with us.
In all of this work, we depend on our partners in the legal profession to make us aware of potential cases that relate to any of our five strategic aims.
If you think you have a matter that may be of interest, or would simply like to have an informal discussion about a case or issue, our legal helpline is open to all lawyers and professional advisers. You can also refer cases directly via legalrequest@equalityhumanrights.com. If doing so, please include a summary of the facts, background and legal issues, and flag any important deadlines.
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