No doubt you will all remember the introduction of the Equality Act 2010 which brought discrimination legislation “under one roof.” Two years on, and the Government is seeking to make a few amendments, mainly to address areas of the Act that have not been extensively used or have been criticised by employers. These are separate to the other reforms being undertaken under the Enterprise and Regulatory Reform Bill (please see our latest article here) and are only at consultation stage.
- Whether to remove the provisions in regard to third-party harassment under the Equality Act 2010. These provisions mean an employee can bring a claim of discrimination against their employer where the employee is subject to harassment on the grounds of a protected characteristic on at least two occasions by a third party in the course of their employment, and their employer failed to take steps to address it. A third party could be a customer or supplier.
- Whether to take away the Employment Tribunals’ wider powers to make recommendations in discrimination cases. These powers are rarely used but do allow an Employment Tribunal to make more creative orders, such as recommending that an employer ensures all managers in an organisation complete equality and diversity training. According to the consultation document, these powers have only been utilised in one case since implementation in October 2010.
- Whether to remove the questionnaire procedure for obtaining information from employers. This procedure allows an employee or individual who is thinking of bringing a claim for unlawful discrimination, harassment or victimisation to send a questionnaire prior to commencement of proceedings – if the employer doesn’t respond within 8 weeks or gives an evasive response then the questionnaire process allows the Tribunal to draw an inference of discrimination. The information given may assist determine if there is any merit in the claims. The criticism levied at the questionnaires is that they are often used as ‘a fishing exercise’.
Both consultations close on 7 August 2012. As always, we will keep you updated in our ebulletin about these reforms.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team on 01243 836840 or [email protected].