Monday, September 16, 2013

A trade union response to the attack on equality law?

The snappily titled Enterprise and Regulatory Reform Act 2013 (Commencement No. 3, Transitional Provisions and Savings) Order 2013
(http://www.legislation.gov.uk/uksi/2013/2227/article/2/made) brings s65 of the Enterprise and Regulatory Reform Act 2013 into force from next month.

This wipes out the statutory provisions in the Equality Act 2010 which placed upon employers some liability for "third party harassment" of employees (as for example when Council staff face racist abuse from a member of the public).

This takes the law back to where it was in 2003 when the House of Lords decided the case of Pearce v Mayfield, overturning the previous precedent of Burton v De Vere Hotels (the legendary "Bernard Manning" case). (For a contemporary analysis of what this meant at the time you could do a lot worse than read what Thompsons had to say about it - http://www.thompsons.law.co.uk/ltext/l1250004.htm).

What it amounts to is that there is no effective remedy in discrimination law against an employer failing to protect staff from racist (or any other) harassment from third parties (for whose conduct the employer cannot be held to be vicariously liable).

As trade unionists we need to be clear that this doesn't take the pressure off our employers to do all that they reasonably can to prevent such harassment - which will include responding to it when it occurs.

The employer's general duty under the Health and Safety at Work Act, and the duty to carry out risk assessments under the Management of Health and Safety at Work Regulations are both relevant here - and for public sector employers the steps they take to comply with these duties are themselves subject to the public sector equality duty.

The Coalition's deliberate step backward on individual rights in equality law ought to prompt us to step forward with a collective response to the problem of harassment of our members.

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