As part of its ongoing review of legislation in an attempt to reduce “red-tape” the Government has, this month, announced proposed changes to the Equality Act 2010 and the Equality and Human Rights Commission.
The two proposed changes, on which the Government is currently consulting, which are of most interest to employers are:
- repealing the employment tribunals' power to make recommendations that apply to all an employer's staff; and
- repealing the statutory questionnaire procedure.
In relation to the first proposal, the Equality Act 2010 introduced for the first time the ability for employment tribunals to make recommendations to employers in order to address discrimination within an organisation. Despite the fact that a Claimant who has left the employer will not be affected by any recommendation, tribunals nevertheless have a wide discretion over what recommendations can be issued, such as introducing equal opportunities policies and training or publishing the criteria used for promoting staff. Although such a recommendation is not directly enforceable, if an employer fails to implement a recommendation and a similar complaint is brought in the future, the tribunal can take that failure into account.
The basis of the consultation is that the Government believes that a recommendation is unlikely to be an effective legal remedy and therefore it suggests that the power be revoked.
Although in our experience tribunals seldom make recommendations, the provision within the Equality Act is much more of a stick for tribunals to beat employers with as opposed to a carrot to encourage good employment practices. As a result, we think a repeal of this provision, whilst unlikely to have a massive impact, would nevertheless be good news for employers.
The second proposed change of real interest to employers is the proposed repeal of the statutory questionnaire procedures.
As HR professionals and employers will know, an employee can submit an Equality Act Questionnaire in which they set out allegations of discrimination and ask questions of their employer to which the employer must respond with 8 weeks. A failure to respond or a response which is evasive or incomplete can lead to the tribunal drawing “adverse inferences” against the employer. In other words, the tribunal can conclude that an employer whose response to a questionnaire is vague has something to hide.
The Government has proposed repealing the statutory questionnaire procedure on the basis that it believes the procedure, contrary to the intention behind its introduction, has neither increased settlements nor, as a result, reduced tribunal workloads.
In our experience, Equality Act Questionnaires are frequently used as a “fishing expedition” and to cause maximum cost and inconvenience to an employer. On top of that, the questionnaires and their responses are very rarely even referred to in the tribunal hearing itself. As a result, repealing the questionnaire procedure would be a massive boost for employers.
Will these proposed changes be good news for employers? We’d love to hear what you think. No matter what your views, you can get them heard by participating in the consultation here.