Policing Prejudice - Enforcing Anti-discrimination Laws In The Workplace

9th November 2022

This briefing note is part of a three-year programme of research exploring labour market enforcement generously funded by Unbound Philanthropy. In it, we investigate the scale and nature of workplace discrimination, and consider how anti-discrimination rules can be enforced to greater effect.

Drawing on a new survey of over 3,000 working-age adults, we find that one-in-five (20 per cent) of 18-65-year-olds reported experiencing some form of discrimination either at work or when applying for a job over the last year, with those from ethnic minority backgrounds and those with disabilities most affected. The Equality and Human Rights Commission (EHRC), the state body responsible for tackling anti-discrimination law, focuses mainly on supporting firms to comply with their obligations, but a lack of resources (its budget has been cut by four-fifths in real terms since its creation) and powers means it undertakes relatively little enforcement action. This means workers largely rely on taking their case to an employment tribunal (ET), which tends to be easier for higher earners: workers earning £40,000 or over were almost twice as likely to take their employer to court as those earning under £20,000, despite the lowest earners being twice as likely to report anxiety about discrimination.

Overall, our analysis suggests that there is room for improvement when it comes to enforcing anti-discrimination law in the workplace. Individual adjudication is arguably more important than for other forms of labour market enforcement, but could be made both more accessible and efficient. But improving state enforcement of anti-discrimination laws remains critical to supporting those workers, particularly lower earners, who are unlikely to take a case to court.

Key findings
Using a new survey of 3,000-plus working-age adults fielded in September 2022, we find one-in-five (20 per cent) of 18-65-year-olds reported experiencing some form of discrimination either at work or when applying for a job over the last year.

Discrimination on the grounds of age (3.7 million people) and sex (2.7 million) were most commonly-reported in absolute terms. But over one-fifth (21 per cent) of people from ethnic minority backgrounds say they have faced workplace discrimination because of their ethnicity alone in the last year, for example, and 15 per cent of disabled people report encountering discrimination in the labour market on the basis of disability.

Low-paid workers are more likely to be anxious about discrimination at work than their higher-paid peers (20 per cent of those in the lowest quartile of hourly pay, compared to 11 per cent of the highest paid quartile).

The EHRC's enforcement approach is based around supporting firms to comply with the rules. But a combination of limited powers and resource constraints - the EHRC's budget has been cut by four-fifths in real terms since 2008-09 - mean it can only take limited enforcement action.

Taking cases to an ET system tends to favour higher-paid workers. In 2017, for example, workers earning £40,000 or over were almost twice as likely to take their employer to court as those earning under £20,000, despite the lowest earners being twice as likely to report anxiety about discrimination.

Recommendations
The employment tribunal system should be made more accessible through providing more financial help, especially for low-paid workers.

Workers could be allowed six months after discrimination takes place to take a claim to court, as opposed to the current three.

The Government should prioritise clearing the backlog of cases that has more than doubled since 2018.

The Government should pass legislation to give the EHRC stronger powers such as financial penalties when it finds non-compliance, and the ability to proactively inspect businesses where it suspects discrimination.

The EHRC should be resourced to investigate more cases of workplace discrimination, widening the scope and number of cases they currently can take.

There should be better join-up between the EHRC and other enforcement bodies (including the SEB when established) so that employers who fail to meet their legal requirements on multiple counts can be dealt with fairly but firmly, providing redress for workers and deterring other employers in the process.

Read the report HERE

https://www.resolutionfoundation.org/