UK: UK Government Pushes Ahead With Equality Reforms In The Enterprise Bill

The government has recently announced its intention to press ahead with its proposals to abolish the third party harassment provisions under the Equality Act 2010 and to abolish discrimination questionnaires; although the responses to the government's consultations on these issues1 showed these provisions were not considered particularly problematic to employers, they will nevertheless be welcomed.

Employers will be concerned, however, with the government's intention to proceed with its proposal to give employment tribunals the power to order equal pay audits where an employer is found guilty of sex discrimination in relation to contractual or non-contractual (e.g. discretionary bonus schemes) pay matters.2

Equal Pay audits

Proposals to give power to tribunals to order equal pay audits have been introduced as amendments to the Enterprise and Regulatory Reform Bill which is now before the Lords.3 The new amendments to the Bill describe an equal pay audit as an audit 'designed to identify action to be taken to avoid equal pay breaches occurring or continuing'. If the amendments to the Bill are accepted, regulations are likely to include provisions on the content of audits, the powers and duties of a tribunal when deciding whether its order has been complied with, provisions about circumstances in which an audit may be required to be published or disclosed to any person, and what should happen where an order is not complied with.

Where an ordered audit is not undertaken, the respondent employer will be hit with a financial penalty. There are certain exemptions where an equal pay audit cannot be ordered. Essentially, to be off the hook, the respondent employer would need to demonstrate that it has completed an audit in the 3 last years, it already has transparent pay practices or it is clear without the need for an audit what needs to be done to avoid further equal pay breaches, and therefore an audit would serve no useful purpose. Coming within these exceptions is likely to be difficult in practice. Start-ups and micro-businesses will be exempt but this may be changed in the future.

The government recognises in its response to the consultation on equal pay audits that this new power seems at odds with the thrust of its deregulatory agenda but reasons that its impact will be limited only to those who have already broken the law. This is true but the introduction of such a power is likely to be a strong bargaining tool for a claimant alleging sex discrimination in contractual or non-contractual pay claims. Respondent employers may prefer to reach an out of court settlement rather than risk having such an audit undertaken that could prompt further claims.

Third party harassment

Currently under the Equality Act, employers can be liable for harassment of their employees by third parties, such as customers or clients, in certain circumstances where the harassment relates to a protected characteristic, such as age, disability, race or sex. Liability can arise where:

  • The harassment has occurred on two previous occasions, not necessarily from the same third party
  • Employer is aware that this has happened
  • The employer has not taken reasonable steps to prevent it from happening again

The government plans to abolish these provisions through the Enterprise and Reform Bill as part of the government's "Red Tape Challenge", designed to cut bureaucracy and unnecessary regulation for employers. On the third party harassment provisions, the government's view was that they served no purpose as employees were protected by other legislation.

There is an element of truth to this in that employees will still be able to rely on constructive dismissal rights, health and safety legislation, the Protection from Harassment Act and the remaining harassment provisions in the Equality Act. However, the level of protection afforded by these other options would, in most cases, be lower and not as straight forward.

From the employers' point of view, it is difficult to see how the abolition of this little used provision will be of any help to them in terms of cutting "red tape". Harassment from whatever source is something that employers will and should be continuing to strive to eliminate from the workplace, both from the perspective of protecting their employees and reducing potential liabilities for themselves.

Abolishing discrimination questionnaires

83% of respondents to the government's consultation opposed the abolition of discrimination questionnaires. Despite this, the government concluded that the questionnaire procedure was "prescriptive and potentially threatening to employers" and has proposed an amendment to the Bill to implement this proposal.

The move will be welcomed by employers since the completion of questionnaires is often time consuming and burdensome but claimants are bound to try to find alternative ways of asking the same questions. However, as we have said in our previous alert on this topic4, if questions are posed during the course of tribunal proceedings, the employer can respond robustly – i.e. refuse to provide the information and assert that it will resist any application the claimant makes to the tribunal. Even if the tribunal agrees to an order for further information or disclosure, the employer would be in a better position than when faced with a questionnaire, because there is scope for persuading the tribunal to limit the scope of the order, and when assessing such an application, the tribunal must deal with the case fairly and in ways which are proportionate to the complexity or importance of the issues.


1 Equality Act 2010: Employer liability for harassment of employees by third parties, Response to the Consultation and Equality Act 2010: Employment Tribunals' power to make wider recommendations in discrimination cases and obtaining information procedure, Response to the Consultation

2 Modern Workplaces Response to Consultation on Equal Pay June 2012

3 Amendments to the Enterprise and Regulatory Reform Bill

4 Government consultation on abolishing discrimination questionnaires - May 2012, Response to the Consultation

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions