16 January 2013

The House of the Lords has been the latest source of criticism over the government's controversial changes to the Equality Act 2010.

As part of the Enterprise and Regulatory Reform Act, which is currently in its Grand Committee Stage, the Coalition has legislated to remove workers' protection from third party harassment (Clause 57 of the bill) and their right to obtain information from their employer before an employment tribunal (Clause 58).

Third party harassment

Third party harassment refers to instances in which a member of staff is repeatedly harassed or discriminated against by a customer or client. Currently, the law states that after three instances of harassment have occurred without the employer moving to protect their employees, the employer becomes liable for the continued mistreatment of their staff by third parties.

Several cases - potential and actual - were brought up during the Grand Committee discussion in which the provision provides a useful protection for workers. For instance, if a nurse is being harassed - be it sexually, racially or otherwise - by a patient, it is only right that her employer should intervene to protect him or her. In some cases, this is not happening, including in one case where mental health nurses were not permitted to change shifts to avoid a patient that was racially abusing them.

In their consultation response on the policy, which was quoted by Baroness Thornton in the Lords on Monday (14th January 2013), Thompsons Solicitors noted that the vast majority of these cases are settled outside of court. The solicitors noted: "The government's logic for repealing the provision is contradictory. On one hand the consultation states that the provision is a burden on business and on the other hand it states that it is only aware of one case in England and Wales where a claim relating to this provision was determined at an employment tribunal hearing."

"Workers should be entitled
to carry out their duties
and engage with third parties
without fear of harassment"

Baroness Thornton was supported by Baroness Turner of Camden, Lord Lester and Lord Low in her criticism of the repeal of the Third Party Harassment protection. She noted that the provision has only been in for two years and thus its effectiveness cannot easily be assessed as yet.

"It is not in the interests of society to remove from employers the responsibility for protecting workers against harassment from third parties. Workers should be entitled to carry out their duties and engage with third parties without fear of harassment," she stated.

Obtaining information on employers

Baroness Thornton also led the argument against repealing the right of workers to obtain information on employers they believed to have discriminated against them. The peer pointed to the historical significance of this right and its essential place in labour law, stating: "This procedure has been a vital part of ensuring access to justice for victims of discrimination since our first discrimination and race relations Acts were passed nearly 40 years ago. Information obtained through this process is intended to help an individual understand why he or she was treated in a particular way and whether they have a legal basis for making or continuing a claim in court or a tribunal." Indeed, should the right to request information be removed, claimants will be forced to begin formal proceedings before they can find out if they even have a case. And this comes at a time when the government is supposedly trying to cut the number of employment tribunals that are held. However, the Coalition have made it difficult for workers to even begin proceedings in order to obtain information on suspected discrimination against them, as from this summer it will cost £250 just to issue a discrimination claim, and another £950 for a hearing. Many, it was suggested, will not go to this expense and will be unable to seek justice.

The government ignores the voice of the public once again

In a continuation of the theme that has become all too predictable since the Coalition came to power, it was also evidenced that the government did not listen to the voice of the public on this matter and clearly have no mandate to go ahead with their repeals of provisions in the Equality Act 2010.

On the Red Tape Challenge website - set up by the government as part of its ideological campaign to reduce workers' rights - there was, in fact, overwhelming support for both provisions from members of the public:

When asked about the Third-Party Harassment Provision, 71% of respondents were opposed to repeal.

When asked about the Obtaining Information Procedure, around 80% were opposed to repeal.

It is clear that the government's campaign to slash equality laws is purely ideological, as the repeals in the Enterprise and Regulatory Reform Bill appear to provide no benefits for either workers or employers, except to allow unscrupulous employers (such as those who refuse to let a worker change their shift to avoid their harasser and those who have discriminated against their staff) to get away with it.

What's more, the government's attack on the Equality Act 2010 is not yet over. A review is currently being performed into the Public Sector Equality Duty, which came into law after institutional racism was evidenced in the police investigation into Stephen Lawrence's murder. Find out more about this regressive move by reading UNISON LGBT Officer Carola Towle's blog on the issue and booking your place at this month's Equality and Discrimination Conference.

Book your place now