As you may be aware, the Government has recently closed a consultation on removing red tape in employment law. The consultation concerned provisions in the Equality Act 2010 and the Protection from Harassment Act 1997 and is part of the Government’s drive to promote business by reducing red tape and removing unnecessary employment law from the statute books. This article looks at whether the Government has considered the areas which the hrlaw team, in its experience, considers causes most difficulty to employers and what the effect of the Government’s proposed changes might be.
In our experience, the pieces of legislation which provide the most red tape for employers are the following:
1. the flexible working regime;
2. the subject access requests obligations; and
3. the ACAS Code on dealing with disciplinary and grievances in the work place.
We find that flexible working requests can take up a significant amount of employer’s time. There are very prescriptive procedural steps and timeframes, backed up by penalties for failure. There are no dispensations which take into account the size of the employer. Finally, it is increasingly common that refused flexible working applications form the basis of indirect sex discrimination claims. Despite this being one of the pieces of red tape in which our clients are most likely to become entangled, the Government has not yet made any proposals in relation to simplifying the regime.
The subject access request procedure, under the Data Protection Act 1998, was introduced to enable individuals to obtain information on the personal data held about themselves by organisations. However, it is increasingly used as an aggressive pre-litigation step. The hrlaw team has found that many employers find it difficult to comply with lengthy subject access requests within the 40-day timeframe, particularly if they do not have sophisticated data retrieval systems. Again, there is no provision for permitting more time for smaller employers and the scope for misusing the intention of the litigation is quite wide. Employers eagerly await proposals in this respect but as yet none have been forthcoming.
The hrlaw team regularly has queries about the ACAS Code on disciplinary and grievance procedures. Employers find that communications which do not present themselves as official grievances or complaints can be confusing. Failure to treat a grievance properly can result in the uplift of any compensation awarded by a tribunal by up to 25%. Although the penalty for failure to comply is far lower than under the previous statutory grievance procedures, employees are not obliged to request that their complaints are treated formally. In the absence of any Government proposals addressing this issue, employers will have to continue to consider whether their employees’ gripes could be regarded as a grievance and they should ask their employees, ideally in writing, whether they would like them to be treated as such.
The Government has however side-stepped the big issues and focussed instead on:
(i) limiting the discrimination questionnaire procedure;
(ii) removing the tribunal’s power to make wider recommendations in discrimination cases; and
(iii) removing employer liability for harassment of employees by third parties.
In the opinion of the hrlaw team, some limitation on the discrimination questionnaire procedure would be helpful to employers who undoubtedly are often bombarded with multiple irrelevant questions in discrimination questionnaires as an aggressive settlement tactic. However, it is also our experience that submitting questionnaires at an early stage can in fact help encourage claimants to settle if faced with the realities of the statistics.
In relation to removing the tribunal’s powers to make wider recommendations, the rationale for removing this provision is that it has not been widely used and is a way to reduce the amount of the employment legislation. Given the length of the Equality Act which has some 218 sections and a further 28 schedules, compared to very few words occupied by the relevant sub-section containing this power, this rationale appears to be rather odd! It is not surprising that there have been relatively few wider recommendations made by tribunals given that the Equality Act, with this new power, only came into effect in October 2010. It has taken some time for discrimination claims which have arisen under this Act to make it to the tribunal, for tribunal judges and panels to become more aware of this additional power, and for claimants’ lawyers to request this remedy. In our opinion, it can be helpful for some smaller employers to be given some practical guidance on training and policies by employers that they can implement in order to avoid running into similar difficulties in future.
Finally, the proposal to remove employer liability for claims for harassment by third parties under the Protection from Harassment Act is also said to be due to the limited number of claims. In the experience of the hrlaw team, the mere existence of this provision has prompted employers to consider ways to protect their employees from third party harassment – which is surely what most responsible employers would wish to do in any event.
The hrlaw team asks the general question – just because a provision prohibiting unlawful behaviour is not relied upon frequently, should it be removed? Whilst employers will welcome practical steps to reduce unwieldy procedures it is difficult to tell how chipping away these employment rights furthers the Government’s aim to cut red tape and help promote business.