The government has confirmed that it intends to repeal the third party harassment provisions of the Equality Act, to abolish the discrimination questionnaire procedure and to remove the power of Employment Tribunals to make wider recommendations in discrimination cases. The first two changes will be brought in via the Enterprise and Regulatory Reform Bill ("ERRB"), currently before Parliament.
Third party harassment
The Equality Act introduced a new protection rendering employers liable for harassment of their employees by third parties. In May 2012 the government launched a consultation on removing these provisions as part of its drive to reduce the regulatory burden on business.
In its response to the consultation, the government has confirmed its intention to remove these provisions, despite overwhelming opposition, (71% of respondents opposed the proposal, with only 20% agreeing with repeal). As no specific evidence was provided in support of retaining the provisions, and employees have other potential avenues of redress, the government was not persuaded to rethink its proposals. A new clause has been included in the ERRB to effect the repeal.
As part of the same drive to reduce the burden on businesses, the government has also confirmed that it will repeal the discrimination questionnaire procedure under which individuals who feel that they have been discriminated against can obtain information from the person whom they believe responsible.
Again, the overwhelming majority of respondents (83%) were against repealing the provisions. Although the government recognised the validity of the intention behind the questionnaire procedure, (enabling discrimination to be explored in communication without recourse to a tribunal), it objected to the regulatory and prescriptive approach set out in the legislation, recognising that, in practice, the questionnaire procedure did not increase pre-hearing settlements or reduce tribunal claims but in fact created a significant burden for employers.
Despite concerns from some that repeal of the procedure would lead to less focused requests for information and more subject access / Freedom of Information requests, the government concluded that employers should be free to decide how and whether to respond to pre-claim enquiries. An amendment has been made to the ERRB to enact the repeal.
After consulting on the effectiveness of the new power for Tribunals to make recommendations (in a successful discrimination case) affecting the wider workforce, the government has now confirmed that it will be repealing this power.
After considering the responses, the government concluded that the new power adds little and that, in fact, the examples of wider recommendations brought to its attention through the consultation process are "basic remedial actions which we would expect most employers at the sharp end of a tribunal finding to undertake in any case". However, no amendment has (as yet) been made to the ERRB, so no change is expected imminently.
The wider recommendation power was rarely used by Tribunals and there are few instances of individuals bringing claims for third party harassment, so in practice, these changes will have little impact on employers - particularly as employees could potentially still bring a harassment claim for third party harassment under the Protection from Harassment Act or the "standard" harassment provisions of the Equality Act.
The removal of the questionnaire procedure is however more surprising, particularly bearing in mind the concerns of some employers that this will only lead to an increasing number of less focused requests and greater reliance on the subject access regime.
Furthermore, although the government has said that removing the procedure will give employers greater flexibility around how, when and whether to respond to any request for information, European law is clear that an employer's refusal to grant access to information for the purposes of establishing a discrimination claim may be one of the factors a domestic court can take into account when deciding whether the burden of proof will shift to the employer to disprove discrimination. Employers should therefore exercise caution before deciding to ignore a request.