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 that can still constitute unlawful harassment even if this provision is repealed.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.