This is just updating you on two upcoming changes to the Equality Act 2010 – the abolition of discrimination questionnaires and the third part harassment provisions:
1. Abolition of discrimination questionnaires
The Government has said, in its response to a consultation issued in May this year that it will be abolishing discrimination questionnaires. Such questionnaires are used by a person who thinks they might have a discrimination claim under the Equality Act 2010 and are sent to the potential respondent in a claim. The respondent is not obliged to reply. However, an Employment Tribunal may draw an adverse inference from the respondent’s failure to answer questions within eight weeks or from evasive or equivocal answers. The Government response said “we do not see why it should be a function of Government to try and micro-manage this interaction between the parties through the prescribing of template forms and time limits.”
This does not prevent a person still asking questions if they wish to do so. Employment Tribunals and Courts may also still be able to draw an inference from a refusal to provide such information, as was confirmed in the European case of Meister v Speech Design Carrier Systems GmbH (2012). Our article on the Meister case can be found here.
Therefore, getting rid of template questionnaires and time limits for responding has no overall effect on the need for employers to respond to requests for information and to do so within a reasonable timescale.
This has not officially been repealed in legislation yet, but it is anticipated to happen in early 2013.
2. Abolition of third party harassment provisions in the Equality Act 2010
The Government has also said it plans to abolish the third party harassment provisions in the Equality Act 2010. This was announced in a response to a consultation issued in May this year. The provisions make an employer liable for the harassment of an employee by a third party, such as a customer. This only applies where the employer knows that that employee had been subjected to such conduct on two prior occasions and the employer has not taken steps that would be reasonable in the circumstances to prevent the employee from being subjected to such conduct again.
As for 1, this is also not officially repealed as yet but is likely to happen in early 2013.
Removing the third party harassment provisions may not necessarily mean an employer will never be liable for third party harassment. This is because the definition of ‘harassment’ in the Equality Act 2010 is so wide that an employee can still argue that a failure of their employer to act when they have been harassed by a third-party (provided it is related to a protected characteristic such as sex, age, race, etc) is in itself enough for a claim. We expect to see case law on this area in the future, despite the repeal.
For advice on this or any other aspect of employment law, why not contact our friendly team on 01243 836840 or email [email protected].