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17 October 2012

Repeal of equality provisions confirmed

The Government has proposed further amendments to the Enterprise and Regulatory Reform Bill, in order to repeal certain provisions under the Equality Act 2010.

The Government has confirmed its intention to repeal the provisions in the Equality Act 2010 relating to third party harassment and the discrimination questionnaire procedure.  It has also introduced new powers for tribunals to order a compulsory pay audit.

Third party harassment

Currently, employers can potentially be held liable for the harassment of their employees by a third party (such as a client or supplier), if harassment has taken place on at least two previous occasions and the employer has failed to take reasonably practicable steps to prevent the harassment from occurring (Section 40 Equality Act 2010). 

The Government has recently published a response to its consultation on proposals to remove these provisions.  Only 20% of respondents agreed with the proposal, with 71% opposing it.  However, the consultation response highlights the lack of specific or quantifiable evidence to support the views of those who responded to the consultation, and the Government believes that both the concept and the intention behind the provisions are widely misunderstood.  The Government has therefore concluded that it is not necessary to retain the third party harassment provisions.

Amendments made to the Enterprise and Regulatory Reform Bill will repeal the relevant sections of the Equality Act 2010.  We do not yet have a date for when this will take effect, and in the meantime the third party harassment provisions will remain in force.

A copy of the Government’s response to the consultation on third party harassment is available here.

Discrimination questionnaires

The Government has also issued its response to the recent consultation on proposals to repeal the provisions under the Equality Act 2010 that currently allow individuals who believe they may have been discriminated against to obtain information (by issuing their employer with a discrimination questionnaire), and to remove the ability for employment tribunals to make wider recommendations in successful discrimination claims (recommendations applying to the wider workforce rather than just the individual claimant).

Only 15% of respondents were in favour of repealing the questionnaire procedure, but in the Government’s view it is “prescriptive and potentially threatening to employers”, and it plans to proceed with the repeal of section 138 Equality Act 2010.

The Government has indicated that the removal of the formal questionnaire procedure will not prevent any individual from seeking pre-claim information through a more informal route.  An employment tribunal may still draw adverse inferences from an employer’s refusal to respond to a request for information, or from evasive answers.

It appears that the Government is not yet proceeding with its proposal to remove the ability for employment tribunals to make wider recommendations.  A copy of the Government’s response to the consultation on discrimination questionnaires and the power for tribunals to make wider recommendations is available here.

Equal pay audits

The Government has made a further amendment to the Enterprise and Regulatory Reform Bill, to give employment tribunals a new power to order compulsory pay audits where an employer has lost a claim for equal pay.  Regulations will set out further details of the content of such audits and the extent of the tribunals’ powers and duties in relation to them.

The Enterprise and Regulatory Reform Bill reached the Report stage and had its third reading in the House of Commons on 16 and 17 October 2012.  It will then have its first reading in the House of Lords.  It is not yet known when the Bill will receive Royal Assent.