Enforcement of rights

Introduction

The Equality Act 2010 applies to all categories of staff who may work in a business, including workers, employees, contractors, partners, or a director (collectively referred to as workers in this section), but not volunteers.

An individual or the Equality & Human Rights Commission (the EHRC) may bring the enforcement of non-discriminatory practices. The EHRC has the power to investigate discriminatory practices and may serve a non-discrimination notice. It can also give assistance to an individual pursuing a claim.

Enforcement by an individual

A complaint of discrimination must be made within three months of the act complained of. An equal pay complaint must be made within 6 months of the worker leaving the job that the complaint relates to. Although the tribunal has discretion to extend the time limit, an extension will only be granted if it is just and fair to do so.

Remedies

If a complaint is well founded, the tribunal may:

• Make an order declaring your worker's rights.
• Order you to pay compensation.
• Make a recommendation that you take action to alleviate or reduce the effect of the act of discrimination on your worker. Failure to comply with such an order can lead to an increase in the compensation order.
• Require you to carry out an 'equal pay audit' and publish it on your website for 3 years (for equal pay claims or pay-related sex discrimination claims)

In deciding the appropriate level of compensation, the following matters will be taken into account:

• Monetary loss arising directly from an act of discrimination
• Aggravated damages where you may have behaved in a high handed, malicious, insulting or aggressive manner
• Injury to feelings
• Interest will generally be awarded from the midpoint date between the act of discrimination and the date of the tribunal hearing

Removal of contractual term

You cannot insert a term into a contract that furthers or provides for unlawful discrimination, and such a term will be unenforceable against any person.

Equal pay audits

If you who lose an equal pay claim or pay-related sex discrimination claim at a tribunal, you will have to carry out an 'equal pay audit' and publish the results on your website for 3 years, unless certain exceptions apply.

Requirements for an equal pay audit

The tribunal's order must provide a description of the employees that must be included in the audit and a time scale for completion and return to the tribunal. This must not be sooner than 3 months after the date of the judgment.

The equal pay audit must include the following:

• The pay information of the employees identified in the tribunal's order.
• The differences in pay between them and reasons for those differences.
• The reason for any equal pay breach identified by the audit.
• A plan to prevent the breaches from occurring or continuing.

Exceptions from performing an equal pay audit

A tribunal can't require you to perform an equal pay audit, if:

• you previously completed one within 3 years of the tribunal's judgment;
• it's clear to the tribunal that an equal pay audit will not be required to avoid equal pay breaches from continuing or re-occurring;
• the tribunal has no reason to believe that the same breach will reoccur;
• the disadvantages of performing an equal pay audit out-weigh the advantages; or
• you are either a new business or, at the date of the judgment, a business with less than 10 employees.

Determining compliance with the tribunal order

A tribunal will determine if the equal pay audit you have provided complies with its order. If it does it will make a further order to that effect. If doesn't or if you fail to deliver the equal pay audit by the specified date, it will set a hearing date and notify you of it.

The tribunal has the power to order you to pay a penalty of up to £5,000 for failing to comply with its orders.

If the tribunal makes a further order approving the equal pay audit, you must:

• publish it on your website, within 28 days from the date of that order, for a period of 3 years;
• inform the defendants where they can get a copy of it; and
• provide evidence to the tribunal that all the above has been done.

In certain circumstances, you may be able to avoid publishing the equal pay audit on your website.