Briefing to the House of Commons on the report stage of the
Enterprise and Regulatory Reform Bill 2012
The Equality and Diversity Forum (EDF) is a network of national civil society
organisations committed to equal opportunities.1 Our member organisations
represent people who have any or all of the characteristics protected in the Equality
Act 2010.
Equality and Diversity Forum members are concerned about proposals to:
 Remove the Commission for Equality and Human Rights general duty,
 Remove the Commission for Equality and Human Rights duty to promote
good relations,
 Remove provisions to protect people from third party harassment, and
 Remove the formal procedure which enables applicants to ask questions of
an alleged discriminator (the questionnaire procedure).
COMMISSION FOR EQUALITY AND HUMAN RIGHTS (EHRC)
EDF members are opposed to Clause 52(1)(a)
This clause would repeal section 3 of the Equality Act 2006 which currently obliges
the EHRC’s obligation to act ‘with a view to encouraging and supporting the
development of a society...’. These objectives extensively discussed with NGOs,
business and others and were agreed by all parties during Parliamentary discussion
of the 2006 Act. EDF members can see no advantage in their removal but there
will be a loss: section 3 gives the EHRC a clear purpose to guide it in deciding its
priorities and makes clear that the job of the EHRC is to change culture, not just to
enforce rules. Because it is not directly enforceable, section 3 does not set
unrealistic expectations for the EHRC.
EDF members are opposed to Clause 52(1)(b)
This clause repeals the EHRC’s duty to promote good relations between members
of different groups. This duty is particularly important in relation to race, Gypsies and
Travellers, interfaith relations, hate crimes, the causes of violence against women,
intergenerational issues and highly stigmatised groups like people with mental
health problems or HIV/AIDS. There are important issues that need to be tackled in
these areas and no other statutory body has a remit to tackle them. Although it is
arguable that the EHRC has not yet made the most effective use of these powers,
no organisation in GB is in a better position than the EHRC to understand the kinds
of inter-racial and inter-religious tensions that can arise and to advise on the best
ways to address them. The Government is potentially depriving itself of an
important resource that it could have real cause to need.
1
A list of EDF members is attached as Annex 1.
Equality and Diversity Forum, Tavis House, 1-6 Tavistock Square, London WC1H 9NA
Tel + 44 (0) 20 303 31454, email info@edf.org.uk, website www.edf.org.uk
Registered charity number 1135357 Registered company number 06464749
Removing section 10 also entails removing the duty in 10(5) to 'promote or
encourage the favourable treatment of disabled persons'. Sometimes it is necessary
to treat disabled people more favourably than non-disabled people. The EHRC has
an important role to play in promoting a better understanding of this need.
EQUALITY ACT 2010
EDF members are opposed to new clause NC12 - Third Party Harassment
EDF members are concerned about the proposal to repeal the third party
harassment because:
 Harassment by third parties is a real issue: it damages people’s lives and
wellbeing
 Good employers who take reasonable steps to prevent third party harassment
(as many do now) have nothing to fear
 The vast majority of consultees, including individual employers such as fire
services, oppose repeal but the Government appears not to have taken account
of their views
 There is no evidence that the third party harassment provisions are a burden on
business
 Repealing these provisions may leave GB in breach of EU law
People should be able to work in an environment in which they are free of
harassment whether from fellow workers, managers or employers or from
customers or clients of their employers or others who come onto their employers’
premises. The government accepts that it is necessary to provide protection from
harassment in relation to fellow workers, managers or employers so why should
employees be unprotected in relation to harassment by customers or clients of their
employers or others who come onto their employers’ premises?
The proposed repeal of the third party harassment provisions has been introduced
following the Government’s Red Tape Challenge, yet there is no publicly available
evidence of concerns being raised about them during the first stage of the
Challenge. When the Government asked specifically for views on ‘prohibited
conduct’ not one of the 213 responses opposed the third party harassment
provisions and a number specifically supported them. Typical was the response of
Mike Hagen the Deputy Chief Fire Officer for the Merseyside Fire and Rescue
Service who said –
We are concerned at the government's proposal to review the implementation
of the provisions on 3rd party harassment even before a case has been
taken. The provisions are not just academic. Regrettably, we have had staff
abused because of their race and have taken action to protect our
employees. However, where organisations do not take action we consider
that the law should be available for individuals to take action.
When the Government consulted specifically on third party harassment 71% of
responses opposed repeal.
Equality and Diversity Forum, Tavis House, 1-6 Tavistock Square, London WC1H 9NA
Tel + 44 (0) 20 303 31454, email info@edf.org.uk, website www.edf.org.uk
Registered charity number 1135357 Registered company number 06464749
Third party harassment is more likely to be an issue in some kinds of workplace
than in others: it is more likely in catering and hospitality and in the care sector than
in offices where customers or clients are rarely present. The people who are most
likely to be affected by the abolition of this provision are some of the most
vulnerable and poorly paid people who are least able to defend themselves. For
instance, a recent report on the treatment of care workers by clients, comments:
A survey of public sector social services staff found ethnic minority staff had
experienced racist verbal abuse from service users; inappropriate
questioning of their authority by users or relatives; users not wanting to be
touched by them or asking to be dealt with by a White person (most
frequently occurring in the user’s own home); and physical attacks perceived
to be racially motivated. Inappropriate remarks from colleagues were also
experienced (Brockmann et al. 2001).2
The Equality Act gives an employer a defence against a harassment claim if they
can show that they took all reasonable steps to prevent or deal with the alleged
harassment e.g. by placing notices on their premises reminding service users that
the business’s staff have the right to carry out work without facing abuse. Many
employers take such steps now and there is no evidence that they are burdensome.
We are also concerned that repealing this provision would contravene European
law. Employees have a right to be protected from harassment in relation to all the
protected characteristics. The European Directives do not limit the persons in
relation to whom that right exists to simply employers.
EDF members are opposed to New Clause NC13 - Abolition of the
Questionnaire Procedure
EDF members are very concerned about the proposal to repeal the questionnaire
procedure provisions because:
 The questionnaire procedure saves money by deterring ill-founded litigation
 83% of consultees, including the judiciary, oppose repeal
 There is no credible evidence that the questionnaire procedure is a burden on
business
This change is being proposed following the Government’s Red Tape Challenge.
However, no concerns were raised about the questionnaire procedure during the
Red Tape Challenge. The Government then issued a specific consultation on
questionnaires, which provided little evidence of any case for change. 83% of
respondent opposed abolition of the questionnaire procedure.
Migrant Care Workers in Aging Societies – Report of research Findings in the UK, A Cangiano, I Shutes, S
Spencer & G Leeson, COMPAS, University of Oxford, 2009, p143 at
http://www.compas.ox.ac.uk/fileadmin/files/Publications/Research_projects/Labour_markets/Migrant_care_work
ers/MCW%20report%20-%20final%20-%20website%20version.pdf
2
Equality and Diversity Forum, Tavis House, 1-6 Tavistock Square, London WC1H 9NA
Tel + 44 (0) 20 303 31454, email info@edf.org.uk, website www.edf.org.uk
Registered charity number 1135357 Registered company number 06464749
The procedure was introduced in 1975 to assist the making and, if possible, early
resolution of potential discrimination claims under the Sex Discrimination Act 1975.
It has been incorporated into all later anti-discrimination legislation. It is widely
regarded by employers, employee organisations, individuals and human resource
professionals, as extremely useful and has never been seen as contentious. Judges
and tribunal members see it as a useful way of finding out whether there are real
issues that divide the parties to litigation and if so what they are. It therefore helps to
 prevent unnecessary proceedings or
 enable their early resolution, or
 clarify the issues in contention.
The procedure is widely used and helps to prevent litigation: at the recent annual
Discrimination Law Association conference, virtually every delegate present had
experience of cases where litigation had not been brought specifically because of
use of the questionnaire procedure. Without the questionnaire procedure there will
inevitably be more speculative litigation as aggrieved employees will be more
inclined to bring unfounded cases.
The Government claims that there is no evidence that the questionnaire procedure
is useful, but the Discrimination Law Association (DLA) can offer plenty of examples
of its value in use. For example:
Mr A believed he was not recruited to a senior management post for which he
was qualified because of race discrimination. He served a detailed
questionnaire. The response showed that the employer had followed good
equal opportunities procedures and that his answers and presentation were
inferior to those of the other candidates. He was advised that he was unlikely
to succeed and he did not take the case further.
The DLA also found examples of questionnaires helping to define the issues and so
leading to the early settlement of a case:
Mr S was dismissed following an internal audit process which found evidence
raising a suspicion of fraud. His lawyers assisted him to prepare a
questionnaire asking who else had been caught by the audit process and
what action had been taken against them. The employer’s reply indicated that
BME employees were more than four times more likely to be sacked (rather
than retrained) than their white counterparts. Having made this disclosure the
employer agreed to an out of court settlement including a review of their
disciplinary process.
EDF members are sure that the questionnaire procedure facilitates access to
justice, helps both parties to assess whether a claim lies and enables them to reach
an early settlement where this is appropriate. We urge the Government not to repeal
it.
Equality and Diversity Forum,
October 15th 2012.
Equality and Diversity Forum, Tavis House, 1-6 Tavistock Square, London WC1H 9NA
Tel + 44 (0) 20 303 31454, email info@edf.org.uk, website www.edf.org.uk
Registered charity number 1135357 Registered company number 06464749
Annex 1
Equality and Diversity Forum members
Action on Hearing Loss
Age UK
British Humanist Association
British Institute of Human Rights
Children’s Rights Alliance for England (CRAE)
Citizens Advice
Disability Rights UK
Discrimination Law Association
End Violence Against Women
Equality Challenge Unit
EREN – The English Regions Equality and Human Rights Network
Fawcett Society
Friends, Families and Travellers
JUSTICE
Law Centres Federation
Mind
National AIDS Trust
Press for Change
Race on the Agenda (ROTA)
Refugee Council
RNIB
Runnymede Trust
Scope
The Age and Employment Network (TAEN)
Trades Union Congress (TUC)
UKREN (UK Race in Europe Network)
UNISON
Women’s Budget Group
Women’s Resource Centre
Equality and Diversity Forum, Tavis House, 1-6 Tavistock Square, London WC1H 9NA
Tel + 44 (0) 20 303 31454, email info@edf.org.uk, website www.edf.org.uk
Registered charity number 1135357 Registered company number 06464749