The Government has announced plans for some striking changes to discrimination protection under the Equality Act 2010. These will no doubt be welcomed by many employers, but the changes may not be as helpful as they first appear.
Take the proposed abolition of the rules on third party harassment. Employers are currently liable for harassment of their employees by third parties, such as clients and contractors, if they know an employee has already been harassed twice before and don’t take reasonable steps to prevent a third incident. This is known as the “three strikes” rule.
The Government regards these provisions as unworkable and wants to scrap them. It thinks employees are adequately protected by constructive dismissal, the Protection from Harassment Act and health and safety legislation – but none of those give anything like the same level of protection. The consultation paper also suggests that employees harassed by third parties could rely on the Equality Act’s general harassment provisions, although previous case law suggests otherwise.
Abolishing the three strikes rule would leave employers in a position of uncertainty. Although unwieldy, the current provisions do make clear that an employer who finds out about third-party harassment needs to consider what it can do to stop it happening again. Without this framework, employers will still need to have effective policies to prevent this type of harassment, while employees will be uncertain about how far they are protected.
Also significant is the proposal to scrap discrimination questionnaires. Employers who have had to deal with lengthy requests for statistics, documents and explanations for decisions going back years will probably be breathing a huge sigh of relief.
But this isn’t necessarily all good news. The purpose of questionnaires is to assist employees in obtaining information to assess the strength of a claim and whether to bring one. On that basis, there’s certainly an argument for removing the right to put in a questionnaire after the claim has been submitted (within 28 days).
Pre-claim, questionnaires are often misused as a “fishing expedition”, but they can provide an opportunity for the employer to provide information showing that an employee’s complaint is relatively weak. This can arise particularly in equal pay cases, where there are often misunderstandings about what colleagues are paid and the basis for pay differentials.
In any kind of discrimination claim, the information provided can potentially discourage an employee from submitting a claim, or reduce the scope of the claim. Without questionnaires, there is a risk that employers will find themselves defending broader, unmeritorious claims. That means spending more time on steps like disclosure, not to mention more in legal fees...