New Employment Law Provisions Added To The Enterprise And Regulatory Reform Bill

• A power to issue regulations made under the Equality Act 2010 on mandatory equal pay audits for employers who lose employment tribunal claims – the regulations would require employment tribunals to order any employer to carry out an equal pay audit where they are found to have breached equal pay law or discriminated because of sex in non-contractual pay. Under the power, an equal pay audit would not, however, be ordered where the tribunal considers that an audit completed by the employer in the past three years meets prescribed requirements, it is clear without an audit whether any action is required to avoid equal pay breaches occurring or continuing, the breach found by the tribunal gives no reason to think that there may be other breaches, or the disadvantages of an equal pay audit would outweigh its benefits. The regulations may make further provision on the content of pay audits, publication requirements for pay audits and any sanctions to be applied for failure to comply with an order. The first equal pay audit regulations will exempt start-up and micro-businesses from any such order, although this may be changed at a later date.
• Removal of the questionnaire provisions in section 138 of the Equality Act 2010 which allow a person who thinks they may have been unlawfully discriminated against, harassed or victimised to obtain information from their employer. However, regardless of the repeal of the statutory questionnaire, there is nothing to stop a claimant from still raising questions of the respondent employer prior to deciding whether to issue employment tribunal proceedings and a court or tribunal could still conclude adverse inferences from a refusal to respond or from evasive answers.
• Removal of the provisions in section 40(2) to (4) of the Equality Act 2010 which make the employer liable for the harassment of its employees by third parties, such as customers or clients, in circumstances where harassment has occurred before on at least two occasions (whether or not by the same third party) and the employer has failed to take reasonable steps to prevent it.
• Amendment of the Employment Tribunals Act 1996 to enable tribunals to make an order requiring a deposit of up to £1,000 to be paid by a party before they can pursue a specific allegation or argument within proceedings. Currently, a £1,000 deposit can only be required as a condition of continuing to participate in the proceedings. The Act would also be amended to allow a tribunal to order a party to make a payment in respect of both preparation time and costs for witness expenses.

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Our Employment Consultancy Service can assist you with a wide range of employment and HR issues, including redundancy programmes, termination of senior employees and directors, in-house training and drafting employment documentation compliant with the very latest changes in employment law specifically tailored to your business. If your business is unfortunate enough to find itself in receipt of an Employment Tribunal claim, our experienced team of employment litigators can help you defend your position and minimise the financial exposure to your business.