The first consultation proposes to streamline the employment tribunal process through repealing the following two measures: 1) employment tribunals’ power to make wider recommendations to employers who lose discrimination cases, e.g. recommending the introduction of an equal opportunities policy; and 2) the use of discrimination questionnaires to obtain information from their allegedly responsible employer.
The view expressed in this first consultation paper is that the wider recommendations provision requires employment tribunals to go beyond their role and, in effect, take on the role of an equality consultant. This was deemed to be an inappropriate and ineffective legal remedy for employment tribunals that adds an additional, unnecessary burden on businesses. Similarly, the provision for discrimination questionnaires is thought to have had little effect on its aim of encouraging settlement of claims, and the process of obtaining the information is held to be time-consuming, burdensome and expensive for businesses.
The second consultation proposes to remove the provision for harassment of employees by a third party. Under the current provision, employers may be liable for harassment of their workers by a third party not directly under the employer’s control, e.g. where the harassment is by a client rather than the employer themselves or another employee. The duty on employers to protect employees against harassment by a third party arises where an employee has been harassed by a third party on at least two previous occasions, the employer is aware of the harassment, and the employer has not taken ‘reasonably practical steps’ to prevent the harassment reoccurring. The workability of this provision has been questioned since the outset.
The view expressed in this regard is that the provision for harassment of employees by third parties does not serve a practical purpose; there has only been one employment tribunal case relevant to the provision since its introduction in 2010. It has also been held that there are other ways that employees suffering this kind of harassment can make a claim, e.g. under common law negligence, constructive dismissal and other harassment provisions.
Both papers set out different policy options that could be taken in response to the consultation, and the strengths and weaknesses of these options, which will be further consolidated when feedback from members of the public are received in the coming months.
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