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Changes to the Equality Act

31st May 2012

As a part of the Government's proposals to scrap "red tape" a number of changes to the Equality Act and the Equality and Human Rights Commission have been announced. The changes in question follow a review of the legislation under the Government's "red tape challenge". The view of the Government on the proposed changes is probably best summed up in the words of Theresa May, the Home Secretary, saying that "bureaucracy and prescription are not routes to equality".

The steps being considered include among others:-

1. consultation on repealing employers liability for harassment of a member of staff bya third party. This would cover matters like racial or sexual abuse by a customer or other service user or other person that is employed at the same site by a different employer. The view of the Government is that protection may already be sufficient under the requirement to take reasonable care of the safety of employees, and duties under Health and Safety law, and potential constructive dismissal claims that may arise from that type of situation.

2. consultation on repealing the statutory questionnaire procedure. This procedure enables potential claimants to ask questions of their employer about the alleged discrimination, and it requires employers to reply within a set period, failing which an Employment Tribunal is entitled to draw inferences of discrimination against that employer. The Government view is that the curent questionnaire process does not increase the chances of early settlement and avoid claims reaching the Tribunal, and instead imposes burdens on employers. The Government also is of the view that the process is not often used anyway (which admitedly does appear to contradict the previous view that the process imposes burdens on employers!).

3. consultation on repealing the power of Employment Tribunals to make recommendations that will apply to all of an employer's staff. This was introduced in the Equality Act to enable Tribunals to make receommendations when the claimant had already left the particular employment. The Government has expressed the view that the power is unlikely to be an effective remedy anyway.  

The consultations close on the 7th August 2012.  

Proposed reforms to the Equality and Human Rights Commission include scrapping some of its powers and duties, and subjecting it to tighter financial controls.  

These proposals are just a couple among the range of changes to employment law being proposed by the Government. It is certainly questionable as to how far these particular changes would make it easier for businesses to recruit and retain staff. Our experience is that recommendations under the anti-discrimination legislation are very rare anyway, so altering that process is unlikely to make  much of a practical change to employers. Similalry relatively few discrimination claimants appear to use the statutory questionnaire process (perhaps missing a trick there!). Even when they do, it is unusual for the Employment Tribunal to draw adverse inferences against an employer from answers given (or omitted) from the reply to the questionnaire. The process of preparing answers to such questionnaires can be time consuming, but they do enable an employer to see the tactic and strategy that a claiamant proposes to use in any future claim. On that basis the process is not always unhelpful to the employer.

If you need any help or advice on the issues raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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