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New consultation on changes to discrimination law announced

Further to its review of the equality legislation, the government yesterday announced a consultation on the abolition of the following provisions in the Equality Act 2010: the rules on third-party harassment; the tribunals’ power to make wider recommendations in discrimination cases; and the statutory questionnaire procedure. The consultation will close on 7th August 2012.

The Equality Act extended protection from harassment so that an employer could be held liable for harassment by a third party (such as a customer or contractor) if harassment has occurred in the course of employment on at least two earlier occasions; the employer is aware that harassment has taken place; and the employer has failed to take reasonably practicable steps to stop it. The government is aware of only one case of the third party harassment provisions having been ruled on by an employment tribunal and plans to revoke them in line with their commitment to reduce unnecessary regulation.

The Equality Act 2010 gave tribunals a new power to make recommendations in respect of an employer’s workforce as a whole, not just in relation to the individual claimant (e.g. to introduce an equal opportunities policy). An employer cannot face enforcement action for failing to comply with a recommendation but it could potentially be used as evidence to support subsequent similar discrimination claims. The government wants to repeal this provision but still allow tribunals to make recommendations for the benefit of the individual claimant.

The long-established statutory questionnaire allows employees who believe they may have been unlawfully discriminated against to establish information relating to the dispute. There is no obligation on the employer to respond to a questionnaire but a tribunal may draw an inference from a failure to do so within 8 weeks, or an evasive or equivocal answer. The consultation document states that there is no evidence that questionnaires have achieved their intended effect of encouraging settlement without recourse to the tribunals. Instead they are frequently used as ‘fishing exercises’, resulting in additional costs and risks for employers.

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