Equality

Introduction

Clause 20 of the Bill extends the power in Section 49D of the Employment Rights Act 1996 to provide for regulations to protect women during or after a protected period of pregnancy from dismissal, not just redundancy. Further regulations will also provide for the right to protection from dismissal during or after a period of family leave.

Employers will be required to take all reasonable steps to prevent harassment, which mirrors the provisions employers can rely on to defend a claim of discrimination. Significantly, Clause 16 amends section 40 of the Equality Act 2010, which protects workers from harassment by third parties, such as clients or customers. Disclosure of sexual harassment is also specified as a protected disclosure.

The Equality Act 2010 has been amended to include a new provision that requires employers with 250 or more employees to publish equality action plans in order to advance equality of opportunity between men and women.

 

What is Included

The details of protection from dismissal during or after pregnancy and following maternity and other family leave are to be set out in regulations. These are likely to be along similar lines to the current protections that apply in relation to redundancy. For example, by requiring the employer to offer alternative employment and that a failure to comply with the regulations will result in the dismissal being treated as unfair. The protection will apply during and after adoption leave, shared parental leave, neonatal care leave and paternity leave available to bereaved parents. Pregnant employees will have a right not to be dismissed during pregnancy and for six months following return to work from maternity leave.

The protection will also mean that a woman who has miscarried before informing her employer of her pregnancy should be protected from dismissal. The requirements to take all reasonable steps emphasise the duty on employers to be proactive in preventing sexual harassment in the workplace.

The right to protection from third-party harassment applies to harassment related to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. The requirement to publish equality action plans includes plans to address the gender pay gap and support women going through menopause. The form and frequency of such plans will be set out in regulations.

 

What is not included

The prevention of harassment duty on an employer only applies to sexual harassment not harassment related to other protected characteristics. The details of what steps are reasonable for an employer to take to prevent harassment are to be set out in regulations.

Clause 17 says this includes, amongst other things, carrying out assessments, publishing plans or policies, and determining the steps for reporting and handling complaints. There is no freestanding right for an individual to bring a claim against an employer in the employment tribunal if it fails to prevent sexual harassment. Only the Equality and Human Rights Commission can bring a claim.

The statutory questionnaire procedure to request information from employers about a potential claim under the Equality Act 2010 has not been re-enacted. While this does not prevent workers from asking questions of employers it is arguably more effective in eliciting information at the pre litigation stage and can assist a collective resolution.

 

Comment

The free-standing right to claim protection from third-party harassment is long overdue, having been abolished more than ten years ago on 6 April 2014 under the previous government. Enhanced protection from dismissal for pregnant women and employees taking family leave is another welcome move in the right direction. What is clear is that these are just the start of reforms to equality legislation.

A new Equality (Race and Disability) Bill is proposed which will require larger companies to publish information on their ethnicity and disability pay gaps and the government in its Next Steps document.

A regulatory enforcement unit for equal pay will back up the requirement on large employers to produce action plans. This unit will be crucial to ensuring the effectiveness of government plans to clamp down on outsourcing services that seek to avoid equal pay.

Further initiatives are planned to support disabled workers and people with health conditions in the workplace. While there is always more that can be done to improve equality, this certainly feels like a step in the right direction towards creating a level playing field—a welcome relief after 14 years of regression.

 

 


Full Briefing: The Employment Rights Bill