NHS Fife facing EHRC enforcement over lack of single-sex changing rooms

In response to a letter from the Equality and Human Rights Commission raising concerns about the lack of single-sex changing facilities at NHS Fife, the health board has responded, stating that it will not consider changing its current self-ID practice until Peggie v NHS Fife has concluded. It has now been revealed that the EHRC is considering exercising its enforcement powers to hold NHS Fife to account for failures to comply with its legal obligations.

The EHRC has on two separate occasions requested information from NHS Fife on its policies relating to the use of single-sex facilities for staff. While Carol Potter, the health board’s chief executive, eventually responded last week, she did not provide the EHRC with the Equality Impact Assessment which should have been undertaken before the change in practice which allowed Dr Beth Upton, who was born male but identifies as a woman, to use the female changing rooms at the hospital. The production of an Equality Impact Assessment in situations such as this is a legal requirement.

The EHRC initially wrote to NHS Fife to remind the health board of its legal obligations as they pertain to the provision of single-sex facilities in the workplace. However, in her response, Ms Potter failed to mention the Workplace (Health, Safety, and Welfare) Regulations 1992 which state that changing rooms will not be suitable “unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety”. Instead, the health board has indicated that it is awaiting a national gender transitioning guide and will consider next steps in light of the outcome of Peggie.

The difficulty with this is that guidance cannot ignore or supersede binding legal obligations. Compliance with the 1992 regulations is not a matter of policy to be determined by NHS Scotland or any other body. It is a legal obligation, breach of which exposes NHS Fife to ongoing risk of liability from any member of staff who is required to share changing facilities with members of the opposite sex.

EHRC Enforcement Powers

The Equality Act 2006 makes provision for the establishment of the Commission for Equality and Human Rights, abolishing and consolidating the previously separate Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. Sections 20-24 and 31-32 of the 2006 Act set out a range of enforcement powers which the EHRC can exercise in order to ensure the effective implementation of equality law.

Investigations

Under section 20 of the Equality Act 2006, the EHRC is empowered to carry out an investigation, where it suspects that an organisation has committed unlawful discriminatory acts. Before settling a report of an investigation recording a finding that unlawful acts have occurred, the Commission must:

a. send a draft of the report to that person or organisation

b. specify a period of at least 28 days during which that person or organisation can make written representations about the draft, and

c. consider any representations made.

Agreements

Under section 23 of the Equality Act 2006 Act, the EHRC is empowered, where is considers that an organisation has breached the Equality Act 2010, to give it the importunity to enter into man agreement to voluntarily undertake to comply with its legal obligations. This can be done instead of a Section 20 investigation or as an alternative to other enforcement mechanisms. Where an organisation enters into a Section 23 agreement, the EHRC will monitor compliance with the agreement and implementation of any action plan in place as a result of it.

Injunctions

If the EHRC considers an organisation is likely to commit an unlawful act, or if an organisation enters into a Section 23 agreement but does not comply with it, the eHRC is empowered under Section 24 of the Equality Act 2006 to apply for a court order to restrain the organisation from committing the unlawful act or to comply with the Section 23 agreement.

Public Sector Equality Duty Compliance

Under Section 31 of the Equality Act 2006, the EHRC is empowered to assess the extent to which a public authority has complied with the Public Sector Equality Duty under Section 149 of the Equality Act 2010. There is no requirement to suggest that an unlawful act has occurred before making such an assessment.

The EHRC can serve a notice under Section 32 and Schedule 2, para 9 of the Equality Act 2006 requiring an organisation to provide any information and documents they have or to give oral evidence to assist the assessment. This is a formal process and the letters from the EHRC do not constitute notice under Schedule 2, but this may be what the EHRC had in mind when it indicated that it may consider using its enforcement powers, particularly given the fact that and Equality Impact Assessment does not appear to have been done. A person or organisation who receives a notice under Section 32, requiring compliance with the PSED, is under a legal obligation to comply with it [s.32(5)]. NHS Fife is under heightened duties under The Equality Act 2010 (specific Duties) (Scotland) Regulations 2012, which require reporting and publishing of equality outcomes at regular intervals.

The EHRC can apply to a court for an order requiring the organisation to take steps needed to comply with a notice. Under Schedule 2, para 9, individuals or organisations such as NHS Fife will commit an offence if, without reasonable excuse, they:

(a) fail to comply with a notice or order issued under the Act;

(b) falsify anything provided or produced in accordance with a notice or an order issued under the Act;

(c) make false statements in giving oral evidence in accordance with a notice issued under the Act.

A person or organisation guilty of an offence under para 9 will be liable on summary conviction to a fine not exceeding level 5 on the standard scale, which has no maximum.

Finally, and perhaps most interestingly, Section 30 of the 2006 Act empowers the EHRC to institute or intervene in legal proceedings if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function. This means that the EHRC could potentially apply to intervene in Peggie v NHS Fife to set out its understanding of the applicable equality and human rights law in this case. Such an intervention will very likely assist the Tribunal in its reasoning and conclusions. There is also the possibility that the EHRC launch separate proceedings against NHS Fife under judicial review if the Commission is satisfied that there is or would be one or more victims of an unlawful act.

It is unclear at this point what enforcement, if any, NHS Fife is likely to face. Nevertheless, the fact that the Commission has issued this warning is important. NHS Fife may wish to reconsider its position of maintaining its practice of allowing single-sex changing rooms to operate on a self-ID basis in light of this development.