The government has published some proposed new amendments to the Enterprise and Regulatory Reform bill. The key proposed changes are:

  • The discrimination questionnaire procedure, which is designed to enable employees to gather information to assess whether they have grounds for bringing a claim, is to be abolished. Whilst this can only be good news for employers, there will still be other ways for aggrieved employees to obtain information, in particular by making a subject access request or through the usual disclosure process as part of employment tribunal litigation.
  • The third party harassment provisions in the Equality Act 2010 (s40(2) to 40(4)) are to be repealed. The Government has indicated that it is concerned that these sections impose further liabilities on employers. If that is the case, it is certainly not something that we at Kemp Little have been aware of – these provisions were only introduced in 2010 and so far as we are aware, have not been the subject of any published case law. In any case, employers will not be let off the hook; failing to protect employees against harassment by third parties may still be caught by other sections of the Act.
  • The Tribunal's power to made wider recommendations regarding an employers' workforce is to be removed. This power was introduced under s124(3)(b) of the Equality Act in 2012 and to our knowledge has not yet had any measurable impact.
  • Lastly, and in contrast to the above pro-employer changes, employment tribunals are to be given a power to order an equal pay audit where an employer loses an equal pay claim or sex discrimination claim relating to non-contractual pay. The number of orders to this effect will in practice be limited by the number of equal pay claims going successfully all the way to a full hearing. The impact is however more likely to be felt when claimants use the threat of such an order during negotiations to position themselves for a better settlement package.

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