Government Reforms to the Equality Act 2010

The Government has announced a raft of changes to the Equality Act 2010 (EqA) and the Equality and Human Rights Commission (EHRC). The Equality Act amendments follow examination of the legislation as part of the Government’s ‘red tape challenge’ and include a consultation on repealing employers’ liability for third party harassment. The Home Secretary and Minister for Women and Equalities, Theresa May, stated that ‘bureaucracy and prescription are not routes to equality’.

The measures announced include:

• consultation on repealing employers’ liability for third party harassment under S.40 EqA. The Government argues that employees are already adequately protected against such behaviour by employers’ common law duty to take reasonable care of the safety of their employees; employers’ duty under Health and Safety legislation to ensure, so far as is reasonably practicable, their employees’ health, safety and welfare at work; the Protection from Harassment Act 1997; constructive dismissal law; and, potentially, the protection from harassment provisions in S.26 EqA

• consultation on repealing employment tribunals’ power in S. 124(3) EqA to make recommendations that apply to all an employer’s staff. The power was introduced into the EqA so that tribunals could make recommendations to address discrimination where a claimant had already left the workplace. However, the Government believes that the power is unlikely to serve a practical purpose or to be an appropriate or effective legal remedy

• consultation on repealing S.138 EqA, which contains the statutory questionnaire procedure. The Government believes that this procedure has failed to increase pre-hearing settlements and reduce tribunal workloads, and has instead created burdens and risks for employers

• reviewing the operation of the S.149 EqA public sector equality duty that requires public bodies to consider, among other things, the impact of their decisions on those who share a relevant protected characteristic such as sex or race

• repealing the socio-economic duty contained in S.1 EqA, which would (if it had been brought into force) have obliged public bodies to have regard to the desirability of exercising their functions so as to reduce the inequalities of outcome which result from socio-economic disadvantage; and

• working with the British Chambers of Commerce to help small and medium-sized companies understand what they do and do not need to do to comply with the EqA.

The two consultations issued by the Government Equalities Office, ‘Equality Act 2010: consultation on repeal of two enforcement provisions’ and ‘Equality Act 2010: consultation on employer liability for harassment of employees by third parties’, close on 7 August 2012.

The Government’s response to its 2011 consultation, ‘Building a fairer Britain: Reform of the Equality and Human Rights Commission’, sets out wide-ranging reforms to the EHRC, including scrapping some of its powers and duties under the Equality Act 2006 so that it can focus on its core functions. The Government believes the EHRC can ‘add value’ primarily as a national expert on equality and human rights issues and as a strategic enforcer of the law and guardian of rights. The EHRC will also be subject to tighter financial controls, and have a new Chairman and a new, smaller board. If the EHRC has not progressed sufficiently by autumn 2013 the Government will make further reforms, which may include splitting the EHRC’s responsibilities across new or existing bodies.