The Government is consulting on the repeal of provisions in the Equality Act 2010 that prescribe questionnaires for an individual who thinks that he or she has been discriminated against to gather information from the employer, and those that give employment tribunals the power to make wider recommendations in discrimination cases.
Section 138 of the Equality Act 2010, which came into force on 1 October 2010, makes provision for a specific procedure for the collection of information by an individual who thinks that he or she may have been discriminated against from the employer. There are prescribed forms to enable the individual to gather key facts in the dispute and help him or her to decide whether or not to bring legal proceedings and, if proceedings are brought, help him or her to present the complaint in the most effective way.
On 1 October 2010, s.124(3)(b) of the Equality Act 2010 introduced a wider power for employment tribunals to issue recommendations relating to the employer's whole workforce. For example, an employment tribunal might recommend that the employer introduce an equal opportunities policy; retrain staff; or make public the selection criteria used for the transfer or promotion of staff.
A wider recommendation cannot be enforced, but if the employer fails to comply with it, an employment tribunal can take that failure into account, should a similar complaint subsequently be brought against the same employer.
The Government's rationale for the repeal of the discrimination questionnaires under s.138 of the Equality Act 2010 includes that:
- it has seen no evidence to suggest that the procedure has had the intended effect of encouraging the settlement of claims without recourse to a tribunal, or has encouraged efficiency of the claims process for cases that reach a tribunal;
- some employers have concerns that the forms are "very long and technical";
- potential claimants can ask for records that go back years, resulting in many hours of staff time to complete the forms, even when the individual seeking the information is acting unreasonably;
- tribunals can take into account an employer's failure to complete the form, so employers are paying for legal expertise to help complete the form, resulting in an additional expense; and
- repealing these provisions would not prevent individuals claiming that they have been discriminated against from using other means of obtaining information about the alleged discrimination.
The Government's rationale for the repeal of tribunals' powers under s.124(3)(b) includes that:
- it is aware of only one case in which a wider recommendation has been made by an employment tribunal since this power came into force in October 2010;
- employers often make changes to their policies and practices as a result of a tribunal finding, without the need for a recommendation;
- employment tribunals should not have to formulate proposals that go beyond the case in question; and
- s.124(3)(a), which allows tribunals to make specific recommendations in relation to the claimant, will remain in place.
The Government states that both provisions go beyond what is required by EU law.
The consultation closes on 7 August 2012. The Government intends to publish its response within three months of the end of the consultation period.
Answering a discrimination questionnaire Use this workflow to deal with the
legal and practical steps that an employer must address when it receives a
opportunities: policies and documents The XpertHR policies and documents
service has links to the discrimination questions:
Lycee Francais Charles De Gaulle v Delambre EAT/0563/10 In this case decided under pre-Equality Act legislation, the Employment Appeal Tribunal held that the employment tribunal was entitled to impose a wide range of recommendations on a school that it found had committed age discrimination, including requiring a review of many of its policies by an HR professional.