1. Discrimination law and family friendly
rights
Ellen Temperton and Colin Leckey

2. Discrimination:
Changes to the Equality Act

3. Abolition of Discrimination Questionnaires
Current 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)

4. 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

5. 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 claims
claims without recourse to process for cases that reach a
tribunals/courts” court/tribunal
• Concerns re: burden to business, use as “ fishing expedition”
– BUT can still ask questions by other means

6. Questionnaire Repeal: A bit of muddle (3)
Government response to consultation – October 2012
83% 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”.

7. 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”.

8. 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?

9. 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)

10. 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

11. 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”

12. 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)

13. Equal Pay Audits
• A new incentive to settle?
• A new battleground in remedies hearings?
• Civil penalty for non-compliance

14. And finally...
• Government last week ruled out legislating to outlaw caste
discrimination

15. The new flexibility:
the Children and Families Bill

16. 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”)

17. 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?

18. 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

19. 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

20. Shared parental leave – what about
maternity 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

21. 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

22. Shared parental leave – practical
implications
• Organisational and administrative challenges
Finding cover
Potential fraud – establishing entitlement?
• Agreeing patterns of leave
• Sharing pay – avoiding discrimination claims

23. Shared parental leave – the new
consultation (1)
• Government launched new consultation on 25 February
2013
‘Shared Parental Leave and Pay – Administration
Consultation’
• Open until 17 May 2013

24. Shared parental leave: the new
consultation (2)

25. Other parental leave proposals (1)
• Paternity leave and pay
To remain at current level of 2 weeks
Additional paternity leave and pay to be
abolished
Consulting on notice periods

26. Other parental leave proposals (2)
• Adoption leave and pay
Statutory adoption leave to be ‘day one’ right
No qualifying conditions
Consulting on notice in “fostering to adopt”
placements

27. Other parental leave proposals (3)
• Unpaid parental leave
Increased from 13 to 18 weeks in March 2013
Age limit to increase from 5 years to 18 years in
2015

28. Other parental leave proposals (4)
• Antenatal appointments
Fathers and partners of pregnant woman
Unpaid time off to attend two antenatal
appointments with the mother

29. Thank you