Q
43Mr.
Harper: This is a question about the employment of people.
At the moment employers are allowed to ask various questions at the
employment stage, before they get to an offer decision. A number of
people have suggested—I know the Work and Pensions Committee
has—that the law should be changed so that pre-employment
questions and questionnaires are not allowed, in the same way that they
are not allowed in the US. You would still be able to make a decision
at the offer stage if someone then disclosed a disability or a health
condition that actually did impact on their ability to do the job, but
you would not be able to ask about those facts during the employment
process. Can I ask whether you support such a restriction on
pre-employment questionnaires?
Ruth
Scott: We are looking at drafting a proposal for an
amendment that would specify the circumstances in which pre-employment
disability-related questions would be reasonable. Obviously there are
issues in relation to making reasonable adjustments for somebody at an
interview in relation to equal opportunities monitoring and whether
that information is kept confidential. However, we certainly share
concerns that a kind of open-ended ability to ask disability-related
questions pre-employment is of concern and should be restricted to
quite specific arenas, where that is going to be helpful in terms of
making sure that somebody’s access needs, for example, are
met.
Caroline
Gooding: We think that, in relation to the employment
of disabled people, that is probably the single biggest difference and
improvement that could be made through the Equality Bill. It is not
just a question of whether the employer discriminates. It is whether
merely asking the question or being required to fill in a very
complicated health form actually deters people from applying in the
first place. There is a lot of survey evidence that that is the case.
People with health histories, who expect discrimination, will simply
put the application
form in the bin. It was quite striking in the evidence taken by the Work
and Pensions Committee that the CBI and the Employers Forum on
Disability were in favour of this sort of
approach.
Q
44Lynne
Featherstone: I am concerned about the compulsory
retirement bit and I wondered whether you could give any examples of a
case where compulsory retirement has led to detriment and
harm.
Andrew
Harrop: We do not have an accurate estimate of the
number of people being forced to retire, but we believe that it is in
the thousands each year. An example that crossed my desk last week was
that of a woman who was a cleaner for an NHS trust in the north-west.
She had an exemplary work record but was forced to retire several
months ago, and was told that that was only because of her age. She
wrote to me because of the publicity surrounding our test case on this,
which is judicially reviewing the existing age regulations, and said
that her situation was having a massive impact on her
pension.
Many people
work in their 60s because they have inadequate savings and pensions and
wish to improve their income for the rest of their life. That is why
work for people around the age of 65 can be so important—because
of its long-term impact. We support what you have said, and would like
to see an amendment to schedule 9 that removes the default retirement
age.
Q
45Lynne
Featherstone: I am sure that we will try to help you with
that. I have two or three small points. In terms of children’s
rights, I am trying to find out where the desire of society to protect
children starts and young people’s rights begin. Could there be
examples of that? When we get to Committee stage, I will need to argue
the point with examples.
Mike
Lindsay: I am Mike Lindsay from the Children’s
Rights Alliance for England. I am also here on behalf of the Young
Equals campaign, which seeks to stop age discrimination. It includes a
number of major organisations such as the British Youth Council, the
Children’s Society, the National Children’s Bureau, the
National Youth Agency, Save the Children and so on.
We want to
see protection for children from age discrimination regarding the
provision of goods, facilities, services and public functions as set
out in clause 26. We believe that there is good evidence and have
provided written evidence to the Committee in our “Making the
Case” report that sets out examples of age discrimination
experienced by children. We recognise that children require reasonable
protection in the provision of goods, facilities and services. We do
not argue that they should be treated the same as adults. Equality laws
are not about treating everybody the same; they are about treating
everyone as having equal worth. That is what our organisation seeks for
children.
We are
opposed to discrimination against children and young people on the
grounds of age only in so far as such treatment cannot be objectively
justified. That is the case that we would make in relation to
protection. That issue is obviously receiving a lot of attention and
consideration at the moment, and there is a lot of focus arising from
the Lord Laming report and the baby Peter case. One point we would
make—and one of the reasons why we would encourage the
Government to think
again about the issue of age discrimination as it impacts on
children—is that child protection services are
disproportionately provided to children in this country on the grounds
of age, as are a number of other children’s services. That is
not only discriminatory, but is potentially harmful to a number of
children, particularly older children. Q
46Lynne
Featherstone: That is helpful and I will certainly take a
closer look at the arguments you make and the evidence you have given.
My last question is to Caroline. Are you satisfied that the Bill fully
addresses the chasm in the disability and equality law created by the
Malcolm ruling?
Caroline
Gooding: No, we have concerns about that. We are
pleased to see that there is a specific clause in the Bill that
attempts to capture the equivalent of disability-related
discrimination. However, we have two concerns about the way it is
drafted at the moment. One is the introduction of a clear knowledge
requirement, so that the service provider has to know that the person
has a disability before they can potentially be guilty of
discrimination. Taking the case of large organisations, they will often
have that knowledge in one part of them—a local authority will
know in one part that the individual is disabled—but another
emanation may not. That makes it more difficult, in many circumstances,
for individuals to seek protection under the
law. The
other way in which we are not quite sure, and about which we want to
have more discussions with officials, is how the Bill is drafted at the
moment. Will the provisions work adequately to move away from the
comparator approach that the House of Lords introduced? The decision by
the House of Lords in the Malcolm ruling basically brought the
disability-related discrimination provisions close to those for direct
discrimination, requiring like-by-like comparators. We think there is a
danger that, as it is presently worded, that may be the
consequence—unintended, I am sure—of the present clause.
We would like to explore the wording in more
detail.
Lynne
Featherstone: Thank you. It does need probing,
yes.
Q
47Nia
Griffith (Llanelli) (Lab): I would like to start by asking
about views on positive action, how you see the place for that in the
Bill and how it is in your opinion going to improve
matters. Caroline
Gooding: I can start with disability, which is
different from the other strands in that way. At the moment there are
no real restrictions in relation to positive discrimination under the
Disability Discrimination Act 2005. The Act only protects disabled
people from discrimination so, if you are non-disabled, you cannot take
a case under it. A number of large employers have made very good use of
that provision. Centrepoint, for example, a few years ago, advertised
purely for disabled people to come and work at its call centres, and it
had a separate stream of training and support for them to engage in.
So, there is very generous provision for positive discrimination at the
moment. In some circumstances it may be a legal requirement in relation
to reasonable adjustments. We have some concerns that the Bill’s
current drafting does not seem to signal adequately
that that very broad approach to positive discrimination in relation to
disability will continue. We do not think that it is clear enough on
that absolutely crucial point. Again, that is an area that we want to
have discussions on and probing about. We are confident that it is not
an intention of the Government to restrict positive discrimination, but
we do not think that how it is worded at the moment captures
that.
Q
48Nia
Griffith: So what improvement would you suggest? How would
you suggest changing
things? Caroline
Gooding: We think that the Bill should be more
explicit about that and signal more clearly that disability is
different. In relation to direct discrimination, clause 13(3)—I
have to say that it is one of the most difficult-to-understand clauses
I have yet had to read in any equality provisions. We think that it
needs to be a lot
clearer. Ruth
Scott: The way in which the positive action clause is
described at the moment includes disability, but the extent of the
positive actions allowed is quite restrictive, because it applies to
all strands. We would like to see that clarified, as to whether
disability belongs in the positive action clause at all. Perhaps it
would be preferable to delete it, to ensure the signal that positive
discrimination across the board around disability is necessary to
preserve the asymmetry of the
legislation. Andrew
Harrop: When it comes to age positive action, we do
not have enough experience of the 2006 regulations in force to say with
any certainty how that is working in the employment
sphere. The
aspect of the Bill that we welcome is the extension of positive action
beyond the employer relationship. The particular issue that has come up
over the past three years has been further education colleges, which
have had legal advice that they cannot use positive action provisions.
That has meant that they have removed reduced fees for over-65s to
participate in IT classes and things like that, because they felt that
they could not redress educational disadvantage under the age
regulations. The Bill will resolve that
anomaly.
Q
49Mrs.
Sharon Hodgson (Gateshead, East and Washington, West)
(Lab): I want to talk about carers and the provisions in the
Bill about discrimination by association. Do you believe that that will
provide carers with rights to request further provision such as
flexible working? Do you think that that is an area into which the Bill
should be
moving? Imelda
Redmond: I am Imelda Redmond. I am from Carers UK.
Carers UK really welcomes the Equality Bill, particularly its
recognition of carers and discrimination by association. We hear a lot
about carers experiencing discrimination at either pre-employment or in
employment. This would help. I am not sure that it would help a great
deal with extending flexible working because separate legislation deals
with that, but it would raise a lot more awareness among employers that
it is a group within their work force that can be discriminated
against. The
sorts of cases that we get are of people who feel very sidelined in
organisations and are overlooked for promotion, and who are not
selected and told that it is because of their caring responsibilities
if they had disclosed that at interview. The Bill would help with that,
but not necessarily with increased
flexibility.
Q
50Mrs.
Hodgson: Is there any other aspect in the Bill about
carers that you think we should be looking at
further? Imelda
Redmond: It is quite complicated because of the way
in which the Bill is drafted. It is about the discrimination that
carers experience because of their association with a disabled person,
not about the discrimination they experience in their own right as a
carer. When you are looking at, for example, how to improve the lives
of carers, lots of carers will say that they feel that the health
service will discriminate against them, particularly in terms of
looking after their own health. But because the law comes through the
association with the disabled person, it is only at the point at which
the disabled person is discriminated against that it knocks on to them
and has an impact.
Let us
consider a carer who looks for more flexibility. A woman whom we know
was having surgery. The hospital would not be flexible about the date
of her surgery and the respite care home would not be flexible about
when her husband went into respite care—and the two did not meet
That is one sort of problem. To be fair, it was not discriminatory. It
was just treating her very badly. The whole issue of discrimination by
association is quite difficult. It is a good step forward, but it is
complex.
Q
51John
Howell: May I go back to age discrimination in the
workplace? Andrew, when we were last in this position you were quite
forceful, in that there were a huge number of opportunities to increase
employment for people between the ages of 50 and 69. I would like to
get a feel for whether you think that concentrating on removing
barriers between that age is likely to improve outcomes for older
people, rather than concentrating on adjusting or abandoning the
compulsory retirement
age. Andrew
Harrop: They are both important. The default
retirement age is not just an issue for people over the age of 65; it
has a chill effect on the labour market in the years leading up to the
age of 65. People find it harder to move jobs, so employers could get
stuck with someone. They find it harder to get training and new
opportunities within the workplace because employers do not perceive
that as a good investment. It is not necessarily appropriate to
disentangle the default retirement age from the general suite of
policies that the Government need for older workers, particularly those
aged
55-plus. Clearly,
lots of other things are important, including decent Jobcentre Plus and
skills offers for the over-55s out of work, who are currently facing
significant barriers and massive age discrimination in the recruitment
market, practised by both employers and recruitment agencies. I do not
pretend that a default retirement age is the only answer, but it is a
big part of the jigsaw.
Q
52John
Howell: If the default retirement age proves politically
more sensitive, is it still possible to adjust and account for other
age discrimination in the 50 to 69-year-old bracket that will still
have a positive effect on outcomes for older
people? Andrew
Harrop: It is still hugely welcome that we have age
discrimination legislation in the workplace. It is only three
years old, and although its impact has been felt, there is a lot more
to do. As I just said, the
recruitment market is still profoundly ageist. It is as important that
we focus on raising awareness and the implementation of the law that we
have extending into new areas, as the Bill will
do.
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