Equality Bill

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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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