The Government has announced plans to repeal the controversial provisions in the Equality Act 2010 covering employer liability for third party harassment, an employment tribunal’s power to impose recommendations upon employers who lose discrimination claims and the statutory questionnaire procedure.
The Government has published consultation documents on the removal of the provisions in the Equality Act relating to:
- employer liability for the harassment of an employee by a third party, e.g. a customer
- the power of Employment Tribunals to impose recommendations upon employers who lose discrimination claims
- the statutory questionnaire procedure, under which litigants and would-be litigants can demand wide-ranging information from their employer to assist in a potential discrimination claim
Third party harassment
Under section 40 of the Equality Act 2010, employers are made liable for repeated harassment of their employees by third parties (such as customers, suppliers or members of the public) if the employer:
- knows about the harassment, and
- fails to take reasonably practicable steps to prevent it
The duty is only triggered once the employee has been harassed twice already – whether by the same or different third parties.
This provision caused particular concern amongst employers whose workforce is at a relatively high risk of abuse from third parties - for example in care homes.
But it also generated concern among employers more widely, particularly given the uncertainty over what might amount to “reasonably practicable steps” to prevent the harassment. Should all employers be putting up notices saying that harassment will not be tolerated? Would an employee have to be moved to a different job in some cases?
The government now proposes to repeal this provision on the basis that it is unnecessary and a disproportionate response to the type of problem it is intended to fix.
The government acknowledges that there are other means of redress (such as a constructive dismissal claim) for those employees who are subject to repeated harassment which their employer unreasonably ignores.
Section 14 of the Equality Act 2010 allows employment tribunals to impose recommendations upon employers who lose discrimination cases, for example, introducing an equal opportunities policy, training managers on equality law or publishing criteria for promotion.
There was an earlier, similar, power to make recommendations under the old discrimination legislation but the power could only be exercised in practice where it stood to benefit the claimant. Since claimants had often (if not mostly) left the employer’s employment by the time their claims are heard, this earlier power was very rarely exercised in practice.
The new, wider, power under the Equality Act allows employment tribunals to impose recommendations for the benefit of the whole workforce.
A recommendation cannot be enforced but if an employer fails to comply with it then an employment tribunal can take that into account in future discrimination claims.
The government now proposes to scrap this new power and return to the original position, where employment tribunals can only make recommendations for the benefit of the individual claimant.
Statutory questionnaire procedure
The statutory questionnaire procedure has existed for a long time in UK discrimination law and is currently found in section 138 of the Equality Act 2010.
This procedure allows claimants and would-be claimants to send a statutory questionnaire to an employer, explaining that may have been discriminated against and asking any relevant questions they want of the employer. For example, the employer could be asked to provide statistical information, documents or explanations of its conduct.
If the employer is evasive or equivocal in answering the questionnaire, or refuses to answer within 8 weeks, the employment tribunal is entitled to draw adverse inferences against it.
Although the questionnaire procedure can be valuable to some claimants who are denied access to information they need to progress their claims, it is all too often used by claimants as a fishing expedition. In 2009, the government’s own research concluded that 9 – 10,000 employers completed the forms each year, taking 5-6 hours to do so in each case.
The government proposes to abolish the questionnaire procedure entirely. The proposal is intended to reduce unnecessary burden and expense in completing the forms. However, the consultation document points out that “this will not prevent employees and employers…being able to correspond to try to resolve or narrow down the issues in a dispute about discrimination”.
The Governments plans are subject to consultation. The consultation closes on 7 August 2012. EEF will be responding to the consultation documents on behalf of its members and, as always, we welcome your involvement.
Any member who wishes to be more closely involved with our response or who has particular views on, or experiences of, the particular provisions under review should contact Tim Thomas, Head of Employment Policy, at firstname.lastname@example.org