Government proposals undermine Equality Act
Labour & European Law Review Weekly Issue 280 02 August 2012
Thompsons last week published its responses to two government consultations on proposed reforms to the Equality Act 2010 which it says will seriously reduce the current protection available to workers.
The consultations (which close on 7 August) propose:
- the repeal of section 40, which provides for employer liability for third party harassment
- the repeal of section 124(3)(b), which gives Tribunals the power to make wider recommendations affecting more than just the individual making the claim
- the repeal of section 138, which gives claimants the right to obtain information using the questionnaire procedure
Thompsons challenges the government’s assertion that employers have no control over harassment perpetrated by a third party. It points out that employers have the right to say where an employee will work and to control who and what an employee is exposed to. That right must be accompanied by the responsibility to ensure that exposure to harassment is not harmful, and for there to be redress if it is.
The proposal is particularly worrying, given that there are no other legal avenues available to employees for protection against harassment perpetrated at work by a third party.
As most cases are, in Thompsons’ experience, settled before a full hearing and as the provision has only been in place for less than two years, it argues that the government is not in a position to make an assumption on the effectiveness of the provision within such a short period.
As for the proposal to repeal the power of Tribunals to make wider recommendations, such as that managers undergo training, Thompsons says that if the government is serious about tackling discrimination at work it would not repeal this provision.
The firm argues that the power provides a useful tool for tackling discrimination at the workplace from which employers will benefit if the Tribunal were to exercise the power more often. Employers will be able to learn from their mistakes and make improvements or change policies / procedures / practices or identify training needs with a view to avoiding breaching the Equality Act in the future. This benefits not just the employer but wider society.
The proposal to repeal the right of workers to obtain information using the questionnaire procedure will, says Thompsons, deny employees justice.
Discrimination claims are fact sensitive and given that the burden of proof is on the employee, the removal of questionnaires will put claimants at an even greater disadvantage than is already the case in bringing a discrimination claim. The procedure for obtaining information is useful for employees and their representatives to fully assess the merits of a discrimination claim.
This must therefore be in the interests of the parties and a means for reducing the number of claims lodged, including unmeritorious ones, or claims proceeding to a full hearing.