Introduction of equal Pay audits

An equal pay audit is designed to identify action to be taken to avoid equal pay breaches occurring or continuing. The ERRB would allow the Government to introduce Regulations to allow Tribunals to order an employer to carry out an audit if the employer loses a equal pay case or sex discrimination case in relation to pay.

There would be limits to the Tribunal’s power and it could not order an audit if:

  • an audit has been completed by the respondent in the previous 3 years; 
  • it is clear without an audit whether any action is required; 
  • the Tribunal has no reason to think there may be another equal pay breach; or 
  • the disadvantages of an audit would outweigh the benefits.  

In addition, the Regulations would not apply to “start-ups” or “micro businesses” (it is not yet clear exactly how these will be defined, although the Government has recently used the term “micro business” to mean a business with less than 10 employees).

Third party harassment provisions repealed

At present, the Equality Act 2010 contains provisions which can, in certain circumstances, make an employer liable for harassment of their employees by third parties. The Government has now amended the ERRB so that these provisions are removed from the Equality Act. Interestingly, this is despite only 20% of those who responded to the Government’s consultation supporting this change.

Even assuming the reforms go through, it is arguable that other provisions of the Equality Act will mean that employers continue to be liable for third party harassment. It would therefore be risky for employers to ignore the possibility of third party harassment.

Discrimination questionnaires repealed

At present, a job applicant or employee who feels they have been discriminated against can submit a discrimination questionnaire to the employer. If the employer does not respond properly or within the deadline, a Tribunal is entitled to draw an inference against the employer if the individual brings a discrimination claim.

Although only 15% of those responding to the Government’s consultation were in favour of repealing the questionnaire provisions, the Government has amended the ERRB to do so.

We anticipate that even after the reforms, employee representatives will continue to submit questionnaires and, should an employer fail to respond properly, will ask the Tribunal to draw an adverse inference or order disclosure of particular documents. Employers should therefore remain wary of ignoring such questions.