As part of its commitment to ease the burden of regulation on businesses, the Government has launched two consultation documents on proposals to remove certain provisions in the Equality Act 2010. There are three specific statutory provisions under the spotlight.
The first proposal is to remove the provision in the Equality Act 2010 which make employers liable for repeated discriminatory harassment of their employees by external third parties over whom they do not have direct control, such as their customers, clients or suppliers, where inadequate steps have been taken by the employer to prevent the harassment (section 40(2) to (4) of the Act). However, repealing this provision would not affect the other avenues of legal redress which an employee may potentially use if subjected to conduct that would count as third party harassment, for example, a constructive dismissal claim (where the employer has breached the implied term of mutual trust and confidence by failing to take steps to protect the employee from the offensive behaviour) or a personal injury claim (where personal injury has been suffered by the employee as a result of the harassment). In addition, if the reason for the employer’s inaction is itself related to a protected characteristic covered by discrimination law (sex, race, etc.) that can still constitute unlawful harassment even if this provision is repealed. That consultation closes on 7 August 2012.
Secondly, the Government proposes to repeal the long-established formal ‘questionnaire procedure’ that allows people who think they have been unlawfully discriminated against to seek information and explanations from the person they believe has discriminated against them, by serving them with a discrimination questions form (section 138 of the Act). However, it is important to bear in mind that an employee, job applicant or customer will still be able to ask questions (outside the formal questionnaire procedure) about alleged discrimination and if the employer or service provider refuses to reply, or provides answers that are evasive, a tribunal or court can still, in an appropriate case, take account of that fact in deciding if there has been discrimination.
As part of the same consultation, finally, the Government proposes to abolish the power currently given to employment tribunals to make wider recommendations where an employee has brought a successful claim of discrimination i.e. that an employer take certain steps to avoid other employees being affected by discrimination, for example where the employee who brought the claim has already left their employment so will not benefit from any steps recommended by the tribunal (section 124(3) of the Act). This would simply take employers back to the pre-Equality Act position as this provision was only brought into force from 1 October 2010.
That second consultation also closes on 7 August 2012.