Changes to Discrimination Law

From Howes Percival

News The government have published proposals to make a number of significant changes to the existing law on discrimination as contained in the Equality Act 2010. It has also set out the changes it is going to make to the Equality and Human Rights Commission's remit and functions.

Implications Some of the government's proposals will have little practical impact on employers, for example the proposal to repeal the socio-economic duty contained in section 1 of the Equality Act 2010, which has never been bought into force. However, others are more significant, in particular the proposal to abolish the statutory questionnaire procedure in discrimination claims and to repeal employer's liability for harassment of employees by a third party (e.g. a customer). All the government's proposals are set out in our Details section below. The consultation closes on 7 August 2012. Therefore legislation to amend the Equality Act 2010 is likely to be published in the autumn. We will update readers as soon as more information becomes available.

Details The government is consulting on: 1) Repealing section 138 of the Equality Act 2010 (the statutory questionnaire procedure) The ability of potential claimants to submit a statutory questionnaire to their former, current or potential employer was not a new right created by the Equality Act. The ability to submit a questionnaire existed under all the former discrimination laws (e.g. The Sex Discrimination Act 1975, The Race Relations Act 1976 and The Disability Discrimination Act 1995). This right was simply replicated in the Equality Act 2010 which consolidated all discrimination laws into a single act of parliament. The government's view is that the statutory questionnaire procedure is sometimes used as a 'fishing exercise' by potential claimants and businesses find the forms very long and technical. However the consultation document notes that repeal of section 138 will not prevent employees asking for the type of information commonly asked for in the statutory questionnaires anyway by simply writing direct to the employer. 2) Repealing section 40 of the Equality Act 2010 (employer's liability for third party harassment) Under section 40 an employer can be held liable for the repeated harassment of their employees by third parties (such as customers or clients). The government's view is that employees are adequately protected from third party harassment under other laws such as the Protection from Harassment Act 1997 and health and safety legislation, as well as breach of contract/constructive dismissal claims following an employer's failure to comply with their common law duty of care. 3) Repealing section 124(3)(b) of the Equality Act 2010 (Tribunal's power to make wider recommendations) The tribunal's power to make recommendations to an employer who they have found has discriminated against an employee, was extended by the Equality Act 2010 to cover cases where the employee had left their employment. A tribunal's recommendations can be wide ranging, for example that an employer introduces an equal opportunity policy or the employer trains their managers on equal opportunities. The government wants to repeal this provision because it goes beyond the minimum required under EU law. Instead, the tribunal's powers to make recommendations will revert back to being limited to cases where the employee is still employed (and therefore the tribunal's recommendations are for the individual claimants benefit). 4) Repealing the socio-economic duty in section 1 of the Equality Act 2010 This is a legal obligation on public bodies to consider the impact of their decisions on social class. However section 1 has never been bought into force. In addition the government is also going to: 1) Review the operation of the Public Sector Equality Duty Under section 149 of the Equality Act 2010, public bodies are required to consider the impact of their decisions on groups who share a relevant protected characteristic (e.g. sex or race). The review will establish whether or not this obligation is operating as intended. 2) Reform the Equalities and Human Rights Commission (EHRC), including: Repealing some of the EHRC's powers and duties under the Equality Act 2006 such as its "good relations duty" at section 10. Repeal the EHRC's powers to arrange provision of conciliation in non work place disputes. A new chairman and a smaller board, with stronger business skills and experience, will be recruited over the summer. The EHRC's progress will be reviewed in Autumn 2013.