Harassment and inequality: should some of the red-tape "burdens" be reinstated?
Author: Darren Newman
Consultant editor Darren Newman looks at amendments to "cut red tape" made to the Equality Act by the previous coalition Government - which, in light of the harassment and inequality issues now being exposed on a regular basis, seem particularly ill advised and outdated.
It feels like there has been an important shift in our culture over the treatment of women in the workplace. The scandal surrounding the Presidents Club dinner in London follows months of allegations against high-profile individuals in politics and the arts. Meanwhile, pay is also under the spotlight as large employers start to publish figures on their gender pay gap ahead of the spring deadline and the BBC faces claims that women in senior roles are paid far less than their male counterparts. It is just possible that these developments will lead to a reappraisal of how the legislation on sex discrimination and equal pay has been amended in recent years to ease the burden on employers.
In relation to harassment, one of the features of many of the recent allegations is that the victim was harassed by a customer, client or some other third party rather than by her employer. The Presidents Club allegations in particular are reminiscent of the case of Burton and Rhule v De Vere Hotels [1996] IRLR 596 EAT in which a hotel was held liable for the racist and sexist verbal abuse directed at two serving staff by the comedian Bernard Manning and members of his audience at an event held in the hotel. However, the approach of the Employment Appeal Tribunal in that case was expressly disapproved by the House of Lords in Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL. In that case the Lords held that an employer was not liable for the homophobic bullying of a teacher by school pupils, because the school's actions in exposing her to that bullying were not themselves on the grounds of sexual orientation.
When the Equality Act 2010 was passed it contained specific provisions on "third-party harassment" designed to fill the gap that was thus left in the protection of employees - albeit in a rather limited way. Under s.40 an employer could be made liable for the harassment of its employees by a third party - although only if the employer knew that the particular employee had been harassed on at least two previous occasions and it had not taken all reasonable steps to prevent further incidents. That was a far from perfect provision, but it was at least something that created a positive duty on employers to protect their employees from harassment.
The rules on third-party harassment were abolished in October 2013 by the previous coalition Government. The abolition was proposed by the then Home Secretary Theresa May, who said that "real change doesn't come from telling people what to do", and was introduced through the Enterprise and Regulatory Reform Act 2013 as part of the Government's drive to cut down on red tape.
The same Act also repealed provisions designed to improve pay transparency. There is widespread agreement that transparency is important in combating discrimination in relation to pay. Without knowing the criteria on which pay decisions are made and whether or not comparable employees are being paid equally, it can be impossible to know when discrimination might be taking place.
The requirement for employers with 250 or more employees to publish information about their gender pay gap is intended to be a step in the direction of better pay transparency - but the results are likely to be disappointing. The gender pay gap figure is concerned with differences in the average earnings of men and women, regardless of their role or seniority, and the raw gender pay gap figures, unaccompanied by any details about employees doing particular jobs, does not give any useful information that could help support an equal pay claim. There is a real danger that we will start to judge how committed to equality employers are by a single gender pay gap figure that in fact tells us next to nothing about the reality of working for that particular employer.
The Equality Act did have a procedure under which an employee could seek information about a named comparator. An equal pay questionnaire allowed an employee to check if she was being paid the same as a comparator and, if not, whether that was because the employer denied that they were on equal work or because of some other reason that the employer might later be called on to defend. Respect for the privacy of other employees meant that there was no obligation to disclose the actual pay of the named comparator, but nevertheless the information that was given would have been of genuine use in deciding the prospects for a potential equal pay claim.
The coalition Government decided to abolish the statutory questionnaires - covering not just equal pay, but also other potential discrimination claims - in the face of clear opposition from those who responded to consultation. The Government took the view that employees were free to ask their employer questions if they wanted to and that employers should be free to decide whether or not to answer those questions and take the risk that a refusal to answer might lead to a claim or prompt a tribunal to draw an adverse inference.
Looking back on the decision now, it seems to belong to a different age. Measures dismissed by the Government as burdensome red tape just a few years ago now seem like just the sort of protections that could address important gaps in the law.
In a particularly timely intervention, the Fawcett Society has been conducting a thorough review of sex discrimination law. Not surprisingly its final report concludes that the law can be improved in several respects. Among other things, it calls for the reintroduction of equal pay questionnaires and the rules on third-party harassment. This would be a welcome move. Reintroducing those provisions will not solve the problem of how women are treated at work, in relation to which clearly we have a long way to go. But it would at least be a step forward. If the Government could have the courage to admit that some of the decisions made as part of the "red-tape challenge" went too far and undermined the ability of employees to challenge discrimination and harassment at work, that would signal a real determination to address the issue.
