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Removing provisions from the Equality Act will not help employers

17 October 2012

The Law Society has warned that removing certain provisions from the Equality Act will not help employers. The warning comes after the government published a series of amendments to the Enterprise and Regulatory Reform Bill this week.

The amendments, to be considered in the report stage of the bill, abolish the Equality Act provisions on third party harassment (which make an employer liable for failing to act where their employee has been harassed by a third party) and the use of claimant questionnaires in discrimination claims.

The Law Society has highlighted the fact that these provisions can in fact be beneficial to employers as well as employees.

Under section 40 of the Equality Act an employer is not held responsible for the third party's actions in themselves, but for failing to act where they have been told of the harassment; when it has happened on at least two previous occasions; and where the employer has not taken such steps as would have been reasonably practicable to prevent the harassment.

'Harassment is unacceptable in any workplace,' says chair of the Law Society Employment Law Committee Angharad Harris. '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.'

'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.'

The Law Society says that business concerns could have been addressed through better guidance on how to deal with third party harassment and how to answer questionnaires.

Angharad Harris added:

'Most employers want to do the right thing, and want clear advice to understand how employment law affects them.'

When in doubt, the Law Society advises employers to get in touch with their local solicitor.

Ends

Notes to editors:

Earlier this year, the government consulted on the removal of section 40 (third party harassment provision) recommendations and section 138 (the obtaining information provision) of the Equality Act 2010.

The purpose of section 40 is to make an employer liable for failing to act when an employee has been harassed by a third party.

Questionnaire procedures allow an employee to question someone they feel has been discriminating against them before deciding whether or not to launch proceedings. If the person being questioned refuses to answer or answers in a tricky way, an employment tribunal is able to exercise a wide discretion in deciding, ‘as a matter of evidence, what to make of the way in which the respondent has or has not replied to the questionnaire.'

About the Law Society

The Law Society is the independent professional body, established for solicitors in 1825, that works globally to support and represent its members, promoting the highest professional standards and the rule of law.

Contact: Steve Rudaini, Press Officer, The Law Society, +44 (0)20 7316 5624