Duncan Lewis

Family Law

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Government panning to scrap Equality Act 2010

Date: (12 July 2012)    |    

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A consultation is being closed on August 7 on the issue of third party harassment with the Government planning to scrap the protection provided by the Equality Act 2010.

The reforms would result in employers facing claims just after one instance of employee abuse by clients or customers.

The present regulations need three instances of harassment which is known as ‘three strikes’ rule. An employer has the defence under the rule if it can show that it had taken reasonable steps to prevent the harassment by a client or customers.

After the Equality Act 2010 had come into effect only one known third party harassment case has been claimed where a care home worker successfully argued that her employer was liable for the sexual harassment she suffered at the hands of a resident.

The lack of reported claims could have been due to the provisions in the Act which made the employers focus on policies and practices aimed at completely eradicate third party harassment. These provisions were seen by the coalition as having no apparent need.

Prior to the implementation of the Act, one claim was successful where customers made racist comments to staff and the employer would not allow this behaviour to be challenged. In another case, an employer was held liable for racial harassment where it had not done enough to protect a social worker in a home for troubled children.

The old law was perceived to be imperfect with claims often had to involve complicated arguments to succeed. To give an appropriate protection the law is being sought to be changed. In one such reported cases the tribunal had ruled that harassment by third parties in certain employments were hazard of the job which meant the employers accepting the argument were exposing themselves and their employees to the consequences if they failed to address the risk.

For employers, this could ultimately result in the need to defend employment tribunal or court claims.

Though the Government says that employees would still have other legal options for a redressal when the third party harassment provisions are repealed, such as claims of negligence or constructive dismissal or bring a claim under the Protection from Harassment Act 1997 these avenues have their difficulties, as will any post-repeal attempts to rely on the more general harassment and detriment provisions of the Equality Act. Employers may find themselves at risk of a claim after just one ‘strike’, not three.

For employees, the most critical result of harassment was likely to be the extent to which it manifests in mental or physical harm. The family of Roman Romasov, a Lithuanian worker at Sainsbury’s, are dealing with the consequences of the harassment he suffered at the hands of a BNP-supporting colleague, currently serving life in prison for his murder (Vaickuviene and others v J Sainsbury plc). It’s not an instance of third party harassment, but it shows the worst possible consequences of workplace harassment.