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New approach to equality?

The Government has published consultation documents today which propose the repeal of the following provisions of the Equality Act 2010:•third party harassment (i.e. where an employer can be held The Government has published consultation documents today which propose the repeal of the following provisions of the Equality Act 2010:

•third party harassment (i.e. where an employer can be held liable for the harassment of an employee by a third party, such as a client or customer).

•the power of employment tribunals to make 'wider recommendations' to an employer in discrimination cases (e.g. to introduce an equal opportunities policy or to retrain staff).

•the questionnaire procedure. This enables workers who believe they may have been subjected to discrimination to submit questions to their employer to help establish whether they have a claim.

The proposals to repeal the above provisions are contained in two consultation documents here and here.

The Government announced last year that it would consult on the repeal of the third party harassment provisions. The Government considered it 'unworkable' for businesses to take reasonable steps to prevent persistent harassment of their staff by third parties as they have no direct control over such harassment. The Government also states that there is no evidence to suggest that the third party harassment provisions are serving a practical purpose or are an appropriate or proportionate manner of dealing with the type of conduct that they are intended to cover. According to the Government, there are other legal remedies for third party harassment, under existing legislation and common law, which can be used instead.

The Government's other two proposals, to remove employment tribunals' power to make wider recommendations in discrimination cases and to remove the questionnaire procedure, have been made as part of the Red Tape Challenge process. The Government considers that the power to make wider recommendations goes beyond EU law and states that businesses have already expressed concern about this provision.

The proposed repeal of the long-established questionnaire procedure is unexpected. The Government notes that the time taken for employers to complete the relevant forms, together with the obligation on businesses to respond to questions within eight weeks, is burdensome and expensive. It also quotes a survey from the British Chamber of Commerce that reflects employers' concerns about the procedure, which can sometimes be used as a 'fishing exercise' by potential complainants.

The consultations close on 7 August 2012. Although the Government's proposals arguably aim to reduce the burden of these provisions on employers, they also reflect a rather ad hoc approach to reform. Given the number, and scope, of recent proposals, the Government's commitment to change employment law may well lead to further confusion rather than clarity.

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