by Natalie Johnston
Published: 25 Aug 2021
Natalie Johnston is a lawyer in our Enforcement Team, working primarily on section 23 agreements.
As the regulatory body responsible for enforcing the Equality Act 2010 (‘the Equality Act’) we have a range of powers available to us. We often use our power to enter into legally binding agreements. These are known as ‘section 23’ agreements because that is the section in the Equality Act 2006 that the power comes from.
By agreeing to a section 23 agreement, an organisation commits to not breaching equality law, usually in a specific area where there have been previous issues. We currently have 28 agreements in place with different organisations, which we are monitoring.
What section 23 agreements include
The agreement generally includes an action plan to help address the issues which led to unlawful conduct (such as discriminatory behaviour) occurring. The organisation then commits to delivering it over a set period of time.
Each action plan will differ depending on the issues involved, but usually they include requirements like providing equality training for staff and implementing new policies and procedures.
When we can use this power
We can enter into a section 23 agreement when we have evidence that an organisation may have breached the Equality Act. Although some agreements are signed following a court judgment, we do not need definitive proof that an unlawful act has occurred.
When deciding whether to approach an organisation to enter into an agreement, we consider:
- our own organisational priorities
- the impact a formally monitored action plan is going to have
- whether it will deliver real improvements
For example, over the last few years we’ve had a focus on tackling harassment in the workplace. As well as publishing detailed guidance for employers on what they should do to protect their employees from harassment, including sexual harassment, we’ve also signed section 23 agreements with several organisations that had received Employment Tribunal judgments against them in relation to harassment, such as the DWP, Highways England and Paradigm Precision.
Why we use this power
We always remember that we are accountable to the public and we need to work as effectively as possible to make Britain fairer. Section 23 agreements can be more cost effective than launching a lengthy formal investigation or taking court action.
We want to develop a good working relationship with the organisations who sign these agreements – it’s not about catching them out.
Regular monitoring and feedback mean we can address any potential problems with delivering the action plan early on.
Generally, organisations are keen to work with us to improve. Most organisations don’t want to be acting in a discriminatory way and they are committed to making sure that problems don’t reoccur. Having said that, these agreements are legally enforceable and we will initiate court action to enforce an agreement if we need to.
What happens if we can’t reach an agreement
Of course, sometimes we approach an organisation because we think there’s been a breach of equality law but they don’t engage with us. It is voluntary for an organisation to enter into a section 23 agreement. If an organisation does not work with us, we will consider using our other legal powers.
Recently we concluded an investigation into Elite CarePlus Ltd and found they had acted unlawfully by asking pre-employment questions about candidates’ health and disability. We were given evidence that Elite CarePlus may have been breaking the law. We offered to work with them through a section 23 agreement rather than continuing with our investigation but they refused to do this, so they were subjected to a formal investigation and a finding of unlawful behaviour.
If we carry out a formal investigation and potentially find unlawful acts have taken place, this is likely to be a lot more disruptive and damaging to an organisation than working with us through a section 23 agreement. Developing good practices that strengthen equality and diversity can also reduce the risk of expensive legal action and reputational damage. Our experience is that organisations who work with us can also improve staff engagement scores and reduce complaints and grievances.
Letting us know about a potential breach
We are a prescribed whistleblowing organisation, so if an employee has information that their employer is breaching equality law they can report their concerns to us.
For example, in the Pontins case we received information from a whistleblower employed by the holiday company alleging that the company operated a discriminatory booking policy which excluded Gypsies and Travellers.
Our previous section 23 agreements have been based on evidence from a range of sources, including court judgments and formal complaints.
Lawyers and other advice providers can also contact us about potential breaches that might be addressed through a section 23 agreement.
We rely on people and legal advisers letting us know about potentially unlawful activity to progress equality and eliminate discrimination in organisations. Don't hesitate to contact us if you think we need to take action.