Government announces equality law reforms
The government has announced a raft of reforms which aims to simplify equality legislation, remove unnecessary regulation and reduce the burden on businesses. This follows a review of equalities legislation by the government's Red Tape Challenge. Home Secretary and Minister for Women and Equalities Theresa May says the announcement "strikes the right balance between protecting people from discrimination and letting businesses get on with the job."
Third party harassment
On 15 May 2012 the government published two consultations which seek views on a number of proposals. These include the proposal to remove provisions from the Equality Act 2010 (EqA) which make employers liable for harassment of their employees by third parties. The government suggests that these provisions are "unnecessary" stating that there is a "lack of evidence that there is a significant need for them or that they are effective in practice". The government believes that the removal of these provisions would not leave employees unprotected as employers are already legally required to take reasonable care of the health, safety and wellbeing of their employees at work under existing legislation and the duties owed to employees.
The removal of these provisions would be a welcome change for many employers. Many are unclear about what they need to do to establish that they have taken "reasonable steps" to prevent harassment of employees by third parties. However, removal of these provisions won't give employers carte blanche to ignore the danger of discriminatory treatment by third parties. The consultation document suggests that the widely-framed general harassment protection under the EqA might extend to protection against third party harassment. That would need to be clarified by case law if the statutory protection is removed.
Removing Tribunals Recommendation Powers
The government has also published a consultation on its proposal to remove tribunals' powers to make "wider" recommendations in discrimination cases. These recommendations could apply to all members of staff, not just the individual claimant in a discrimination case. The government's view, based on concerns raised by businesses and other organisations, is that this power is "not likely to serve a practical purpose or to be an appropriate effective legal remedy".
Removing Questionnaire Procedure
The consultation also proposes the removal of the statutory questionnaires and Obtaining Information Orders in discrimination cases. The government states that the obtaining information procedure has not had the intended effect of increasing pre-hearing settlements and reducing tribunal loads and has created new burdens and risks for employers.
Again this is something employers will welcome. Responding to questionnaires in discrimination cases can be very time-consuming and costly. Employees often use them as a "fishing expedition" from which to gain evidence on which to base a claim, and responding to a questionnaire requires the employer to set out its stall at an early stage. The questionnaire process adds to the administrative burden for employers in preparing the responses and significantly adds to legal costs due to the time taken in responding appropriately to such questions.
Review of Public Sector Equality Duty
The government will be reviewing the public sector equality duty (PSED) to establish whether it is operating as intended. The PSED requires public bodies to consider the impact of their policy-related decisions on different groups, paying regard to inequalities. This is an onerous duty to comply with and is not only an issue for the public sector but also for private sector employers who carry out public functions.
Further, the government will repeal the duty requiring public bodies to have regard to the impact of their decisions on social class, although this duty, contained in s1 EqA, has never actually been brought into force.
Reform of the Equality and Human Rights Commission
In response to its 2011 consultation 'Building a fairer Britain: Reform of the Equality and Human Rights Commission', the government has announced plans to restructure the Equality and Human Rights Commission (EHRC), place tighter financial controls on it and scale back its powers so that it can focus on its core functions. If the EHRC has not "progressed sufficiently" by autumn 2013, further reforms will be made, including the potential to split up the EHRC's responsibilities across new or existing bodies.
If the EHRC is split up as is suggested, things might turn full circle. Many will remember when we had the Disability Rights Commission, The Commission for Racial Equality, Equal Opportunities Commission etc so it will be interesting to see whether these return albeit under new labels.
The two consultations, 'Equality Act 2010: consultation on repeal of two enforcement provisions' and 'Equality Act 2010: consultation on employer liability for harassment of employees by third parties', close on 7 August 2012. (Equality reforms cut burden on business, Home Office)
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Further coverage of this story by Pinsent Masons