Power for change: EHRC's litigation strategy

The Equality & Human Rights Commission (EHRC) has statutory powers to provide legal assistance to support individuals subjected to discrimination, to intervene in litigation as a third party and to institute proceedings in its own name. Strategic litigation plays a crucial role in enabling the EHRC to fulfil its mandate to protect and promote equality and human rights, and used strategically, these powers are powerful tools for driving positive change in society.

The Commission's purpose is to promote and monitor human rights, and to protect, enforce and promote equality across the nine protected grounds. Its duties and powers are set out in the Equality Act 2006. The EHRC is an "A status" UN National Human Rights Institution (NHRI), operating in accordance with the Paris Principles, and a National Equality Body (NEB), mandated by the European Union Equal Treatment Directive (see first panel below). In Scotland it shares its human rights mandate with the Scottish Human Rights Commission and works closely with it.

EHRC's enforcement powers

The EHRC has a broad suite of enforcement powers, which include powers to conduct an investigation or assessment, to enter into an agreement, to apply for an interdict, or to issue a compliance notice (ss 20, 31, 23, 24 and 32, Equality Act 2006).

Its litigation powers provide further options for enforcement. These are set out in ss 28 and 30 of the 2006 Act and help, in particular, to underpin the EHRC's role as an "outcomes-focused strategic regulator". These comprise:

• legal assistance – to assist an individual who alleges they are a victim of discrimination and are, or may become, party to legal proceedings (s 28); and
• judicial review and other legal proceedings – to institute or intervene in legal proceedings (s 30).

In determining how best to use its limited resources, the Commission will consider factors such as whether it is uniquely placed to act or whether it can add value to the work of others. When it does tackle an issue or exploit an opportunity, it selects the tool or power that will best fulfil its duties and effect change in a particular circumstance.

It will use its legal powers only where other approaches are not effective.

General principles

The Commission will:

• identify and prioritise those cases where it is uniquely placed to act or is best placed to work as a partner with others;
• assess whether non-litigation options provide more effective and proportionate ways of achieving positive change;
• react to individual cases and respond to new and emerging strategically significant issues, as far as resources allow; and
• prioritise cases which advance its objectives and help to prevent or proactively tackle equality and human rights issues.

Criteria

Factors that will be considered in determining whether the Commission should intervene in, support or take a particular legal case include whether that case:

• addresses widespread or systemic equality and/or human rights problems that litigation brought by others has failed to resolve;
• is likely to clarify, extend, strengthen or otherwise test compliance with equality and/or human rights law (this inevitably results in a greater focus on appellate litigation);
• will challenge a decision, policy or practice that is significantly detrimental or has adverse impact;
• has the potential to improve the equality and/or human rights policies or practices of a strategically significant organisation or sector;
• would have wider tangible benefits;
• will secure better understanding of rights and obligations;
• will raise the profile of priority issues;
• will improve public discourse on and increase public respect for human rights;
• has good prospects of success (or, if not, there are compelling reasons to become involved anyway);
• if a potential intervention, provides an opportunity for the Commission to add value beyond the arguments advanced by the parties;
• provides an opportunity to positively advance arguments using European and international law to positively develop interpretation of domestic law;
• is likely to be eligible for support from other sources; and
• represents a cost-effective use of Commission resources.

Priority litigation issues

The Commission's broad mandate means there is a long list of issues it could potentially take an interest in. Its litigation work, as with all the Commission's work, is therefore intelligence-led, guided by the priorities set out in its Strategic Plan 2012-15, and its Corporate Plan 2014-15. These priorities include those emerging from the triennial review and recent inquiries.

However, the Commission also needs to be agile enough to respond to changing circumstances and emerging issues that may not have been planned for. So whilst its litigation work is guided by those indicative priorities, it is not constrained by an exhaustive list of specific issues. This approach helps ensure the Commission prioritises the key challenges, having regard to factors such as how many people an issue affects and how it impacts on their life chances.

Areas where the Commission continues to be involved in or to take an interest in litigation include:

Public sector equality duty (PSED) – in England, the EHRC has intervened in a series of strategic cases to help strengthen the PSED (in particular, in relation to the duty to consult), to ensure it is an effective tool for delivering improved decision-making and outcomes. These include: Burnip v Secretary of State for Work and Pensions (CA) [2012] EqLR 701; R (South West Care Homes) v Devon County Council (HC) [2013] EqLR 50; HA v Secretary of State for Home Department (HC) and Bracking v Secretary of State for Work and Pensions (CA) [2014] EqLR 60. We are keen to see similar arguments considered more often in Scottish courts.

Religious freedom – the EHRC has been involved in litigation concerned with balancing competing rights and freedoms and the manifestation of religion or belief, for example Eweida v United Kingdom [2013] EqLR 264 at the European Court of Human Rights. It has also published legal advice and guidance to employers in the light of the Eweida judgment and will be publishing guidance on other religion or belief issues in the future.

Trafficking and forced labour – The Commission in Scotland held an inquiry into human trafficking led by Baroness Helena Kennedy QC, which looked at the nature, extent and causes of human trafficking in Scotland. The EHRC has also been involved in litigation, including assisting the claimants in Mruke v Khan (employment tribunal), where the tribunal found the claimant was entitled to the national minimum wage, and in Taiwo v Olaigbe (CA) [2013] EqLR 446, which explored the scope of protection for exploited migrant domestic workers.

Which litigation power is most appropriate?

Legal assistance (s 28)

The Commission can use its s 28 power to provide legal assistance to individuals who may have been subjected to unlawful discrimination, where their case raises issues of strategic significance. It does not currently have statutory power to fund human rights cases brought by others that do not also raise issues under equality legislation.

Interventions (s 30)

The Commission can intervene as a third party in cases taken by others, particularly at appellate level (including the European Court of Human Rights). It may do so where it believes it would add value to the proceedings as an authoritative voice on relevant issues, and where those issues are of strategic significance. This may involve:

• supporting the position of one of the parties on a relevant point, or advocating an alternative view of the law not being advanced by either party;
• highlighting to the court the wider public impact of the case;
• providing expert legal analysis on one or more of the issues;
• providing expert evidence on the issues, including evidence arising from the Commission's own research or inquiry findings; and
• providing submissions on relevant international law.

Judicial review (s 30)

The Commission may consider instituting judicial review proceedings where it believes an unlawful decision or action (or failure to act) has been taken by a public body, no alternative remedy is available and the matter is of strategic significance. Importantly, the Commission can bring judicial review in its own name under the Human Rights Act without the need for it to be a victim of the violation.

Circumstances in which it may institute judicial review proceedings include:

• where a change in the law has just come into force and an early challenge could prevent violations;
• where the subject matter of the case is one where the Commission is best placed, due to its history, statutory duties or expertise, to bring the claim;
• where there is a wide range of victims whose experience can be used to illustrate a problem but where a claim brought by any one of them would not tell the whole story; and
• where the actual or potential victims do not have access to lawyers, or cannot fund a claim themselves.

Impact of EHRC's strategic litigation in practice

The Commission's strategic litigation is not an end in itself but is a means of driving change in workplaces, high streets, schools, and society. It aims to secure binding, positive judgments which reinforce, strengthen or expand people's rights, clarify the law so people understand their rights and duties much more clearly, highlight priority issues forcing them back to the top of the agenda, or challenge policies or practices that cause significant disadvantage. By targeting outcomes that are not restricted to the circumstances of a particular case, the Commission aims to use litigation as a means of securing widespread and lasting benefits (see second panel below for examples).

International perspective

Paris Principles

The Paris Principles were adopted by the UN National Human Rights Institution (NHRI), and by the UN General Assembly in a resolution in 1993. The principles relate to the status and functioning of national institutions for the protection and promotion of human rights. Compliance with the Paris Principles is the central requirement of the accreditation process which regulates NHRI access to the UN Human Rights Council and other bodies. This is a peer review system operated by a subcommittee of the International Coordinating Committee of NHRIs. For more information, see Human rights: fulfilling the Paris Principles, EHRC, 2010.

National Equality Bodies

National Equality Bodies (NEBs) are mandated by the European Union Equal Treatment Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment irrespective of racial or ethnic origin, Directive 2002/73/EC amending Council Directive 76/207/ECC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (now Recast Directive 2006/54/EC), and Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

NEBs provide independent assistance to victims of discrimination, conduct independent surveys of discrimination, publish independent reports and make recommendations on any issue relating to discrimination.

Examples of the impact of the Commission’s legal work

Assisted cases (s 28)

Disability – reasonable adjustments

R (MM and DM) v Secretary of State for Work and Pensions [2014] EqLR 34

The Court of Appeal dismissed an appeal against a decision that the current assessment process for employment support allowance discriminates against people with mental health impairments. The outcome should make the process for claiming and renewing benefits for people with serious mental health impairments much fairer.

Disability – knowledge of disability

Gallop v Newport City Council

The Court of Appeal held that employers cannot simply rubber-stamp an opinion of an occupational health adviser that an employee is not disabled. They must make their own judgment. The court also gave useful guidance to employers.

Age – employment

Ruth McNeil

An age discrimination claim against a medical practice in Lothian settled with a payment of £6,000 to the claimant, after she had been asked to leave her post as a part time receptionist when her employers discovered that she was over 65.

Sexual orientation – access to services

Bull and Bull v Preddy and Hall [2014] EqLR 76

Service providers' religious beliefs did not entitle them to discriminate against civil partners by refusing to provide the service. The right of citizens to practise their religion can be limited where necessary to protect the rights of others.

Sex and pregnancy – discrimination by association

Kulikauskas v MacDuff Shellfish (Scotland)

The Court of Session agreed with our request for a reference to the Court of Justice of the European Union asking for a ruling on whether EU law required domestic provisions on sex and pregnancy discrimination to be interpreted to allow associative claims. Mr Kulikauskas was dismissed for assisting his pregnant partner with heavy lifting. He sought to argue that he had been discriminated against because of his wife’s pregnancy. The case settled.

Post-employment victimisation

Jessemey v Rowstock Ltd and Davis

The Equality Act 2010 prohibits victimisation which happens after someone has left their job and is then treated unfavourably because they have made allegations of discrimination.

Interventions (s 30)

Human rights – extent of jurisdiction

R (Smith) v Ministry of Defence [2013] UKSC 41

Members of the armed forces are under the authority and control of the state and should be subject to the obligations and benefits imposed by the European Convention on Human Rights, wherever they are in the world.

Equal pay

North v Dumfries and Galloway Council [2013] EqLR 817

The Supreme Court upheld the right of 251 women who had raised equal pay claims to compare their terms and conditions with men who are also employed by the council but work in or from different workplaces.

Human rights – deprivation of liberty

Judicial review case of DC

The Commission has recently been granted permission to submit a written intervention to the Court of Session. The case concerns the statutory scheme for powers of attorney under the Adults with Incapacity (Scotland) Act 2000 and issues of deprivation of liberty in terms of article 5 of the European Convention on Human Rights. The Commission’s intervention will focus on the right of the grantor to participate in decision making processes about his welfare in terms of article 8 of the European Convention on Human Rights as well as article 12 of the United Nations Convention on the Rights of Persons with Disabilities.

Further information

The Commission is interested in hearing from solicitors, advisers, NGOs and others who are involved in cases or issues that fall within its strategic priorities or that otherwise may merit its involvement. Even if not able to assist or intervene, it will use all the information to inform its future priorities.

Contact the Commission

Call the Lawyers' Referrals Helpline

Lawyers' Referrals in Scotland: 0141 228 5951 (Monday to Friday)
(Please note that the EHRC will not be able to provide legal advice on this referrals helpline and is unable to discuss potential referrals with anyone other than professional advisers or representatives.)

Strategic human rights and equality litigation

Equality Advisory Support Service

Individuals who would like advice and information on discrimination and human rights issues should contact the Equality Advisory Support Service (EASS).
Phone: 0808 800 0082

Textphone: 0808 800 0084
Post: FREEPOST, Equality Advisory Support Service, FPN4431