Authors:Catherine Casserley
Created:2023-05-19
Last updated:2023-09-25
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The Casey Review (the review), which found institutional homophobia, misogyny and racism in the Met, makes a number of recommendations on changes needed to ensure that the Met addresses the systemic failures found. These are all, unsurprisingly, aimed at the Met itself. But what role could and should discrimination law have played in all this? Below are just a few examples.
Public sector equality duty
As readers will be aware, the Race Relations (Amendment) Act (RR(A)A) 2000 was the legislative answer to the
1999 Macpherson Inquiry recommendation that the ‘full force of the race relations legislation should apply to all police officers’ following the finding of institutional racism in the police, in the wake of Stephen Lawrence’s murder. Not only did the RR(A)A 2000 extend the non-employment discrimination provisions to cover public functions, thus including the actions of the police, but it also introduced the public sector equality duty (PSED), of which Equality Act (EA) 2010 s149 is today’s equivalent.
Section 149 requires public authorities, such as the Met, to have due regard to the need to ‘(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under [the EA 2010]; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it’. Section 149 is not confined to race but applies across the protected characteristics, including, for example, sexual orientation and disability (those areas on which the review found that statistical information was scant).
Those equality ‘goals’ set out in s149 are expanded on in the following subsections, with equality of opportunity (s149(3)), for example, mirroring the positive action provisions set out at ss158 and 159. At the time of the passage of the RR(A)A 2000, the PSED was supported by the specific duties. These were intended to assist listed authorities in meeting their general PSED and required the production of a race equality plan and, for example, the gathering of information – such as staff progression rates, etc – so that these could be monitored and action taken to achieve the equality aimed for.
There is no mention of s149 in the review. Obviously, the review is not intended as an analysis of the efficacy of the PSED; and there are others (for example, inspectorates) who will consider it in the course of their work. But the PSED’s absence – and what appears to be its abject failure to have had any substantive and/or long-term effect on the Met’s functioning – must raise questions about its efficacy and whether it is really fit for purpose in its current form.
There is little evidence of the Met having regard in any strategic way to its obligations under s149 in the review findings. Given that statistical information does not appear to be gathered in respect of any of the protected characteristics bar sex and race in a systematic and cohesive fashion – something that is a prerequisite for understanding not only how you are functioning as an employer, but also how you are serving your target community, and thus complying with your PSED – it would be difficult to consider how the Met was complying with its obligations.
While the s149 duty has proven extremely useful in a variety of public law challenges to decision-making, affecting everything from the distribution of approved premises (bail hostels) for women (see
R (Coll) v Secretary of State for Justice [2017] UKSC 40; [2017] 1 WLR 2093; September 2017
Legal Action 18) to the waiver policy for overpayment of certain benefits (see
R (K) v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin)), it has nevertheless been criticised for its focus not on achieving results but on having ‘due regard’ (as endorsed by the Supreme Court in
Hotak v Southwark LBC [2015] UKSC 30; [2016] AC 811; July/August 2015
Legal Action 50 at paras 73–75). Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then, as Dyson LJ made clear in
R (Baker and others) v Secretary of State for Communities and Local Government and Bromley LBC [2008] EWCA Civ 141; September 2008
Legal Action 44 (at para 34), it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.
Further, the specific duties that have been promulgated to assist in compliance with the PSED are different depending on whether a body is subject to those in England, Scotland or Wales. In Wales, for example, the equality duties require the collection of detailed information, the preparation of equality objectives and the preparation of strategic equality plans. Authorities must also report on general duty compliance. In England, the duties were amended in 2017 so that they require the collection of information and the publication of equality objectives – they are far more limited than those in Scotland and Wales.
There have been previous proposals for reform of the PSED: for example, the House of Lords Select Committee on the Equality Act 2010 and Disability recommended in 2016 that a new subsection should be added to s149: ‘To comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1)’ (
Report of session 2015–16. The Equality Act 2010: the impact on disabled people, HL Paper 117, 24 March 2016, para 346, page 99). It also recommended changes to the English specific duties so that they were more action orientated. The review provides a fresh impetus for revisiting such recommendations.
Indirect discrimination
Some of the practices identified in the review could give rise to claims for indirect discrimination: for example, the practice of remedying discrimination/harassment complaints with ‘reflective practice’, as opposed to treating them with the seriousness that they warrant. Although this would be a challenging claim, it is one that nevertheless might be brought under the indirect discrimination umbrella. EA 2010 s19 appears to be rarely used to its full effect to tackle systemic practices, as it was intended to do. A greater awareness of the provisions, and perhaps the ability of organisations to bring indirect discrimination claims without a ‘victim’, would enable it to be more frequently used.
Positive action
EA 2010 ss158 and 159 set out the specific circumstances in which positive action is permitted under the Act, ie, when an individual can be treated more favourably because of a protected characteristic, in circumstances where it would otherwise amount to discrimination. The provisions, particularly in respect of employment, are limited, largely because they are based on European case law, which provides relatively limited scope in this respect. (It should be noted that more favourable treatment in the context of disability is not unlawful – see EA 2010 s13(3).) It does appear that these provisions are being used to some degree to address under-representation; there may be scope for the provisions themselves to be revisited.
Remedies: employment tribunal recommendations
As a result of changes made to the EA 2010 by Deregulation Act 2015 s2(1)(b) as from 1 October 2015, employment tribunals can no longer make recommendations following a successful claim of discrimination that a respondent take steps to obviate or reduce the adverse effects of any matter to which the proceedings relate that go beyond the complainant (see EA 2010 s124(3) as amended). The original provision could be reinstated, however, to ensure that tribunals have the opportunity to address broader issues, particularly where the claimant has left employment because of the very issues about which they complained. Having such a power enables individual cases to at least have the potential to address systemic discrimination.
Questionnaires
Questionnaires (EA 2010 s138 and associated regulations) were useful tools in discrimination claims for obtaining pre-action information from an employer and/or service provider to enable a decision to be made as to whether to bring a claim or not. They were admissible as evidence and a failure to answer could form the basis of an inference for the purposes of EA 2010 s136. The provision for them was repealed as part of the government’s red tape challenge (Enterprise and Regulatory Reform Act 2013). Reintroduction could assist particularly in determining patterns of discrimination for the purposes of indirect/systemic discrimination claims.
Conclusion
The law alone cannot deal with the issues exposed by the review. But it can and should have a role; and if the government is planning to amend the EA 2010 at any point, then it should take the opportunity to strengthen the provisions to ensure that systemic discrimination can be dealt with more effectively. The above are just some of the ways in which that might happen, in the employment sphere in particular.