Law Society attacks government over changes to Equality Act

The Law Society has attacked the government for seeking to scrap two sections of the Equality Act 2012 aimed at protecting workers from discrimination and harassment.

The government has tabled amendments to the Enterprise and Regulatory Reform Bill, which would repeal Sections 40 and 138 of the Act.

Section 40 makes employers liable for failing to stop harassment of staff by third parties.

Businesses would only be liable for harassment under this section where they fail to take ‘such steps as would have been reasonably practicable’ to stop the harassment and the worker was harassed by third parties on at least two other occasions.

Section 138 of the Act allows workers with potential discrimination claims to obtain information by using questionnaires.

If the employer fails to answer questions or to give proper answers, tribunals can take this in to account if a discrimination claim is taken forward.

Angharad Harris, chair of the Law Society’s employment law committee, said harassment was unacceptable in any workplace.

“The benefit of the third party harassment provision was that it has encouraged best practice amongst employers and this in turn helps to reduce potential incidents of harassment at work,” Harris said.

“The questionnaire procedure can also help employers because it encourages an employee to ask all of their questions at once, rather than through a series of informal questions which make it harder for an employer than if they had been raised all at once.

“Questionnaires also discourage those cases that have no merit.”

James Davies (pictured), joint head of employment law at Lewis Silkin, said although questionnaires could add “some value”, they could also be an unnecessary burden.

“In terms of trying to reduce the cost and complexity of tribunal processes, there is some merit in removing them,” he said.

“Questionnaires can be disproportionate to the issues involved. Of all the changes to employment law at the moment, questionnaires are not top of the agenda of issues I’m concerned about.”

However, Davies said that removing the protection from harassment under Section 40 of the Act would be “unequivocally bad”.

He went on: “Employers need to take this issue seriously. It is wrong for them to feel that they can ignore these risks.”

Davies gave as examples of third party harassment a bus driver racially abused by his customers or a caretaker on a housing estate abused by tenants.

“There is no strict liability,” he added. “An employer must take all reasonable steps to stop the abuse happening.”

The government consulted on both changes to the Equality Act earlier in the year. In both cases businesses backed repeal but public sector employers, unions and equality groups opposed it.

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