Update: Key Changes to UK Discrimination Law in 2013

Forthcoming changes to UK discrimination law are for the most part connected to the government’s ‘red tape challenge’ initiative that is focused on avoiding ‘a culture of unnecessary, over-complicated and constantly increasing regulation.’

The first area to be tackled under this initiative is the liability that employers currently have for repeated discriminatory harassment of their staff under section 40(2)-(4) of the Equality Act 2010. This covers harassment by people outside an organisation, such as a customer, where the employer is aware that this has occurred on two prior occasions but the employer has not taken reasonable steps to stop that employee from being subjected to such conduct again.

The government carried out a consultation on the removal of section 40(2)-(4), to which 71% of respondents disagreed with repealing the section. However, all business organisations consulted were in the 29% and so the repeal is to go ahead in 2013. Several bodies, including the TUC and the Law Society have raised concerns over removing the legislative deterrent of an employer being held responsible for not acting, but the government has said that raising awareness of the duty of care employers have to employees is a preferable course of action and there is little evidence to suggest the section is currently being used correctly.

The questionnaire procedure is being removed on the basis that the government now considers it to be something of a fishing exercise by claimants in discrimination cases.

The next change to impact on discrimination claims in the UK is the abolition of the questionnaire procedure that was introduced by the Equality Act 2010. The procedural rules regarding questionnaires are set out in section 138 of the Equality Act and in the Equality Act 2010 (Obtaining Information) Order 2010 (SI No.2194) but the content of a questionnaire is likely to be different in each case. The questionnaires are used by workers who feel they have suffered discrimination and are considering bringing a tribunal claim to ask questions of the employer concerning anything to do with the situation in which the discrimination arose, from the reasons why they were treated in a certain way, to company policies or guidelines. The employer than has eight weeks to answer the questions and a tribunal can draw and adverse inference from a failure to reply. The questionnaire procedure was designed to increase the efficiency of discrimination cases being taken to a tribunal and to encourage the settlement of claims, but it is being removed on the basis that the government now considers it to be something of a fishing exercise by claimants in discrimination cases.

Also in the pipeline now is the removal of a tribunal’s power, where a discrimination complaint is upheld, to make recommendations not just relating to the claimant but also benefitting the wider workforce. This power is being removed on the basis of it not serving any practical purpose or being an appropriate or effective remedy. What will remain is the power of the tribunal to make a recommendation that relates specifically to the claimant. The power was initially introduced to cover the situation where the claimant had left employment, as then the tribunal would be unable to make any recommendation to help an employer comply with its duties to the wider workforce. As the power was only introduced in October 2010, some commentators have made the point that it is too early to judge whether it is yet effective. Practically speaking, it is unlikely to change the way employees are treated, or the way that tribunal claims are approached as, so far, it has been a rarely used power.

Redressing the balance somewhat in the swathe of cuts to discrimination protection is the introduction of equal pay audits, which have become compulsory where an employment claim over equal pay has been lost. On a practical level, an equal pay audit requires a business to compare the pay levels of protected groups doing equal work within the business, investigate any pay gaps and close gaps that cannot be justified. The likelihood is that the new rules will increase out of court settlements as businesses look to settle, rather than lose a claim and risk being forced into an audit. The idea of the audits could also prompt more speculative claims as a result of the increasingly likelihood of an out of court settlement.