Guidance to cover how individuals can ask questions, and why employers should respond.
Consultation said nothing to stop potential Claimant from asking a potential Respondent, verbally or in writing, about a situation in which they think they many have suffered discrimination, and Tribunal can still take account of exchanges in subsequent case.
Discrimination law and family friendly rights
Discrimination law and family friendly rights Ellen Temperton and Colin Leckey
Abolition of Discrimination QuestionnairesCurrent Proposed• Claimant/would-be Claimant can • Statutory procedure abolished serve Questionnaire on employer in connection with discrimination claim• Failure to reply within 8 weeks, or • But “gap” filled by new “informal evasive/equivocal reply, may lead to approach”, supported by ACAS inference of discrimination guidance (transferring the burden of proof to the Respondent)
Questionnaire Repeal: A bit of a muddle...(1)• Why did we ever have Questionnaires in the first place? Hard to prove discrimination: employer holds cards; much discrimination subconscious Consequent desirability of mechanism for employees to elicit information to establish whether there is a basis for a claim Fits within the burden of proof framework • With us since December ‘75
Questionnaire Repeal: A bit of a muddle (2) Consultation of 15 May 2012 Questionnaires not achieving “intended purpose” of:“Encouraging settlement of Improving “efficiency of claimsclaims without recourse to process for cases that reach atribunals/courts” court/tribunal• Concerns re: burden to business, use as “ fishing expedition” – BUT can still ask questions by other means
Questionnaire Repeal: A bit of muddle (3)Government response to consultation – October 201283% of respondents opposed repeal............but Government still supported, as Questionnaires “prescriptive and potentially threatening to employers”, and procedure “encourages undesirable micro-management of the process by Government”.
Questionnaire Repeal: A bit of a muddle (4)Government progress report: 14 March 2013• Still plan to repeal............but supplemented by “guidance produced by ACAS [which] will include advice on how individuals can ask questions and why [emphasis added] employers and service providers should respond”. To enable business to “better challenge any unreasonable requests for information which they have told us they currently experience with the statutory provisions”.
Practical Implications• None, until repeal takes effect (expected soon)• Burden of proof regime will still make it risky to ignore questions• Greater flexibility to push back on irrelevant questions – but fairly flexible at the moment?• Will ACAS Guidance assist in addressing uncertainties?• Same questions, different format? New uncertainty over how soon to reply?
Abolition of third party harassment“Three strikes and you’re out”:• Employer liable for third party harassment if: Failed to take reasonably practicable steps to prevent, and Knows that employee has been harassed on at least two other occasions by a third party (whether same or different)
Abolition of third party harassment• Repeal proposed as “unnecessary regulation introduced without any real or perceived need”• Other recourse available: Health & Safety law Constructive dismissal Negligence Protection from Harassment Act 1997 Ordinary harassment provisions in Equality Act
Abolition of third party harassment• Date now unclear (same timeframe as Questionnaires)• Only 20% of respondents supported repeal Likely future battleground: General Principal / agents harassment provisions in EA provisions: “unwanted conduct”
Equal Pay Audits• New power to order equal pay audit where employer loses sex discrimination/equal pay claim. But not if: Audit carried out in past 3 years Employer has transparent pay practices “Good reason” why not useful• Detail to be fleshed out in regulations (subject to further consultation)
Equal Pay Audits• A new incentive to settle?• A new battleground in remedies hearings?• Civil penalty for non-compliance
And finally...• Government last week ruled out legislating to outlaw caste discrimination
The new flexibility:the Children and Families Bill
Flexible working: A more flexible approach?• Right to request to extend to all employees with 26 weeks’ service• Statutory procedure to be abolished• Replaced by general requirement to consider requests in “reasonable manner” – with decision within 3 months• Supported by new ACAS Code of Practice (1.5 pages!) (“presumption that you will get”)
Flexible working: A more flexible approach?• Same grounds for saying “no” as under present regime• Expanded range of discrimination risks? How to prioritise competing claims?
Shared parental leave – key proposals• New system of shared parental leave from April 2015• Option for parents to share up to 50 weeks of leave and 37 weeks of pay (i.e. everything not related to compulsory maternity leave)• Leave can be taken concurrently or in consecutive blocks• Minimum one-week blocks
Shared parental leave - eligibility• Length of service 26 weeks’ continuous service by 15th week before EWC Worked 22 out of 66 weeks prior to EWC...• Economic Test earned minimum average specified amount for 13 of those 66 weeks• Working for same employer throughout• Open to adoptive parents
Shared parental leave – what aboutmaternity leave?• 52 weeks of maternity leave default position for all employed women• Must take two weeks’ compulsory maternity leave• If both parents qualify, woman can end maternity leave and pay then, and share remainder
Shared parental leave - pay• Shared parental pay to match statutory maternity pay Currently £135.45 per week• Often enhanced pay for mothers...• ...but what if no enhanced pay for fathers? Uptake likely to be low – unless this is finally the tipping point towards a more “Scandinavian” approach? Risk sex discrimination claim from men if women are offered enhanced pay? More likely than under APL regime