The Government Equalities Office is considering changes to the Equality Act 2010 which include the abolition of discrimination questionnaires and the repeal of the third party harassment provisions.
Wednesday 16 May, 2012
The Government Equalities Office is considering changes to the Equality Act 2010 which include the abolition of discrimination questionnaires and the repeal of the third party harassment provisions.
The Government has issued two separate consultation papers seeking views on the following proposals:
The proposals are part of the Government’s response to the Red Tape Challenge and its promise to reduce unnecessary regulation of business.
Questionnaires
The Government has seen no evidence that the questionnaire procedure has had the intended effect of encouraging settlement of claims or has increased the efficiency of the claim process for cases going to tribunal. Instead, it believes that questionnaires have resulted in unintended burdens for employers who can be asked to provide records going back years, meaning they have to spend time and money responding to what in many cases can be a “fishing exercise” by potential claimants. If they choose not to respond, they run the risk of an inference of discrimination being drawn in any subsequent discrimination claim. The Government therefore proposes to remove the statutory questionnaire procedure.
Recommendations
The Government believes that the power to make wider recommendations does not serve any practical purpose and is not an appropriate or effective remedy. It is only aware of the power having been used once since its introduction in 2010 and considers that other remedies available in discrimination cases are sufficient. The tribunal’s power to make a recommendation benefitting the claimant will remain.
Third party harassment
The third party harassment provisions provide for an employer to be liable for discrimination by third parties, such as customers. Liability arises where a third party harasses an employee in the course of the employee’s employment, the employer knows that this has happened on at least two occasions and has failed to take reasonably practicable steps to prevent it.
The Government believes that the provisions are unnecessary. It is only aware of one decided case under these provisions and considers they serve no practical purpose. Their repeal would not, in the Government’s view, leave employees unprotected as other avenues of legal redress are available, including claims based on the common law duty of care and health and safety laws. In addition, in some cases an employer could still be found liable under the standard harassment provisions in the Equality Act.
Responses to the consultation on removing the power to make wider recommendations/the procedure for obtaining information and the consultation on third party harassment are required by 7 August 2012.
