Government consulting on revisions to Equality Act 2010

Developed under the previous Labour Government, the Equality Act 2010 brought together all UK discrimination legislation in one place, and has been in force since October 2010.

However, the Coalition has decided not to implement certain elements of the Act, including the allowance of claims based on a combination of protected characteristics, and delayed the requirement for larger companies to reveal their gender pay gap.

We understand the Government is planning some major changes to discrimination protection under the Act. The aim – as with every change in these times of austerity – is to reduce bureaucracy.

Harassment by Third Parties

Employers are currently liable for harassment of their employees by third parties, for example clients or contractors, if they were aware the employee has been harassed twice and failed to take reasonable steps to stop it happening a third time. The Coalition wants to abolish this legislation, considering them “unworkable” and that employees are sufficiently protected by constructive dismissal, health and safety legislation and the Protection from Harassment Act 1997.

The consultation paper also says that employees who have been harassed could rely on general anti-harassment provisions in the Equality Act, but jurisprudence suggests otherwise.

Tom Street of Do I Have A Case comments, “Although the current three strikes legislation is a little onerous, it does place a burden on the employer to have a duty of care for their employees…removing this legislation would make the employees’ position less certain.”

Discrimination Questionnaires

The second proposed change is to abolish employer questionnaires on discrimination – most employers will welcome this change with open arms.

The principal role of these questionnaires is to help employees to obtain information in the case of a claim, or whether to bring one at all.

Tom Street comments, “Employers should however be wary of scrapping this questionnaire. Yes, in many cases the questionnaire can be misused by an employee to fish for details, but conversely it can also help the employer to show that the complaint is weak.

“With discrimination cases, having a degree of perspective and common sense is critical, and questionnaires arguably help to measure the strength of a claim. Without them – and without the clear format of an objective questionnaire – employers may find themselves fighting broader, more vexatious claims.”

Recommendations by Tribunals

Lastly the Coalition government plans to repeal employment tribunals’ new powers to make recommendations.

The Equality Act 2010 broadened the tribunals’ powers, permitting them to make recommendations which would in effect benefit a wider workforce, not just the claimant. These recommendations might include issues such as training policies and reviews. However, these recommendations would only apply where the employer has fought and lost a discrimination case and where the employee is still employed – which is often not the case.

The consultation paper suggests rather provocatively that employers are concerned about “inappropriate or excessive recommendations” being made by tribunals.

There is also no direct sanction for an employer’s failure to comply with a recommendation, and indeed employers can reject an impractical recommendation if they can achieve the same result in a different way. That said, what employer would turn down advice from an independent, highly experienced employment tribunal if it helped make their business and employees better protected?