Q
179John
Mason: I would like to press Dianah and Sarah on their
answers. My gut feeling is that I like what you are saying, and I do
not like people having to retire at a specific age. However, I wondered
about the practical issues for an employer, especially a small
employer, where there is no retirement age at all, be that 70, 80 or
whatever. Suppose that somebody who has been a very good employee
starts deteriorating a bit. Does that not put the employer in an
impossible position?
Sarah
Veale: There are measures you can take about that. If
someone is genuinely not capable of doing a job any more, a good
manager will know how to deal with that and, sadly, that person will
have to go. That is not beyond any good manager’s capability. If
there is a compulsory age, however, they do not have to think about it
and can say, “Right, you have got to 65, off you go.” In
fact, they should be having a conversation with that person, and if it
turns out they are no longer capable, for all the acceptable, fair in
law reasons, an employer can take the appropriate legal measures to
deal with that. Employers should not be allowed to skip all those
considerations, arbitrarily take a decision that someone has reached a
magic age—as Dianah said, that does not really indicate
anyone’s fitness or otherwise these days—and get rid of
them
willy-nilly.
Q
180John
Mason: Would 70 or 75 be a
compromise?
Sarah
Veale: I do not think that there should be a
mandatory age. Some 70-year-olds are perfectly able to carry on working
for another five years and some 50-year-olds are not. It is not that
easy. Humans are all different, and a good manager will get to know a
person and make a decision based on what they do, what they have done
and what they are likely to be able to do.
Q
181John
Howell: I want to push the discussion on to a connected
aspect of age discrimination that relates to goods, facilities and
services. The insurance industry has made a big case for retaining age
discrimination or age categorisation, and although I can understand
some of the points that have been made, it does lead to pronounced
difficulties, particularly for older people. I am thinking of some
constituents of mine who are over 85. They have led a very active life
and although insurance for travel is available, after having shopped
around they find that having to pay £3,500 for
insurance to go to Australia is having a major effect on their lifestyle
and ability to conduct what one would consider a normal life.
Nick
Starling: Thank you for giving me the opportunity to
demonstrate that I can actually speak. Age is an extremely important
risk factor in insurance. It is vital that insurers can carry on
differentiating by age. I wish to give two examples: an 18-year-old
driver is 10 times more likely to be killed or seriously injured than
most of the people in this room. Similarly, an average claim of a
traveller aged more than 65 is about three and a half times the cost of
that of people in this room. Age is an extremely important factor in
pricing insurance, and it is important that insurers can continue to do
that. You would think that there would only be a need for the Bill to
act on age if the market were not working, and we think that it
demonstrably is working. There is a wide availability of insurance for
people of all
ages. Our concern is
that, under the Bill, insurers would be required to “write
across the range of ages, whatever their business model”. For
example, they would have to offer a quote for an 18-year-old in a
sports car and a 108-year-old, whatever the circumstances. The industry
benefits from the fact that it is competitive. It has the ability to
concentrate on particular market segments. Some insurers concentrate on
older travellers, some insurers concentrate on backpackers and there
are insurers who offer lifestyle pension products and so forth. The
fundamental basis for insurance needs to continue.
We recognise the difficulty of
access to insurance, particularly for older people, and that is one
thing that we are keen to address. I cannot comment on
Mr. Howell’s particular constituency problems. I
suspect that there are issues other than age involved in that sort of
premium. The issue is that of enabling people to access the insurance
that we know is out there, rather than forcing insurers to offer
particular products in particular
circumstances.
The
Chairman: Thank you. Whenever witnesses want to come in,
please indicate and, subject to the constraints of time, I will always
try to include people. We should now move on to the subject of contract
workers and agency workers. I call Jim
Sheridan.
Q
182Jim
Sheridan (Paisley and Renfrewshire, North) (Lab):
Unfortunately, there has been a growth in the use and exploitation of
temporary agency workers across all disciplines, all workplaces and of
both genders. Those temporary agency workers are discriminated against
in the sense that they have lower terms and conditions, pensions,
holidays and everything else. Part 5 of the Bill seeks to deal with
part of the problem. I wonder whether it addresses the concerns from
the perspective of the TUC and employers. Does it comply with the EU
directives? Katja
Hall: Can I make a general observation on the issue?
We dispute that temporary and agency workers are discriminated
against. We need to be clear about what we are
comparing. Agency workers are not employees of the user company in
which they may be placed. Their relationship is with the agency for
which they work. They are covered by the vast majority of employment
legislation in the United Kingdom—the minimum wage, working-time
regulations and health and safety regulations. We now have, of course,
consultation on the implementation of the agency workers directive,
which will introduce further protections in that area. We do not agree
that agency workers or temporary workers are being discriminated
against. Sarah
Veale: I think that we probably disagree.
Consultation is going on, and we are talking to the CBI and others. The
problem is for the agency workers themselves who are not as
protected—I respectfully suggest—as the CBI thinks. They
do not have contractual status, so a lot of employment law does not
apply to them, and they are discriminated against on that
basis. The other
impact is that employers often use agency workers to substitute for a
full-time person, who would get full protection. We shall have to wait
to see what happens with the agency work regulations, which the TUC
very much welcomes. The trouble is that, unless you get a very strong
comparator basis and you can do proper comparisons between the terms
and conditions on which you employ the permanent workers and those on
which the agency workers are contracted to supply their labour, you
have an inherent built-in inequality, so I can see exactly where you
are coming from on that. In a sense, it is another area of
discrimination that I know is being dealt with elsewhere, but it often
locks in and meshes with the elements of discrimination covered in the
Bill. I hope, as the
CBI no doubt does, that we can do something together constructively to
make the position of agency workers much better in the UK. That remains
to be seen. I do not doubt the will of the Government to do something,
but it is a tricky area, because we have a two-tier employment market
in the UK, which employers choose to stick with because they benefit
from it. The TUC has spent a lot of time disputing whether it is fair
and equitable to have some people working as workers and not employees,
with no protection, while others are in a completely different
position. The position is rather arbitrary and random, but that is
probably a bigger question than the context of the Bill. I hope that
that
helps.
Q
183Jim
Sheridan: I am absolutely amazed that the CBI is saying
that temporary agency workers are not discriminated against, because I
see it every day of my life. Some 700 agency workers at Hewlett-Packard
have just been made redundant simply because it is easier to make them
redundant, so I would like to see the evidence that suggests that
agency workers are not discriminated
against. Katja
Hall: I cannot comment on the
particular—
Q
184Jim
Sheridan: What is the incentive for an employer to take on
agency
workers? Katja
Hall: Because of the greater flexibility that those
workers offer. May I check whether those workers were made redundant
because the assignment with the user company ended, or because they
were no longer contracted through the employment agency? There is
misunderstanding, but they are not the employees of the user
company.
Q
185Jim
Sheridan: That is a technical
term.
Katja
Hall: We know from other cases that if the assignment
ends, they can go and work elsewhere—they will be placed
elsewhere. If they are employees of the agency and they have been with
that agency for two years or more and they no longer work and are made
redundant, they will, of course, be entitled to a redundancy payment,
but they are not the employees of the user
company. Sarah
Veale: That is the point. If they are not the
employees of the user company and they are agency workers, they do not
get redundancy pay. They do not get anything—they can just be
dismissed without any pay whatsoever.
Q
186Jim
Sheridan: To suggest that those people are not
discriminated against is
incredible. Katja
Hall: Could I also make a more fundamental point? The
reason why the UK has a lower unemployment rate than most of the rest
of Europe is because of our flexible labour market. We consider agency
workers to be a key part of that. The truth is that we still, even now,
have a lower unemployment rate than a lot of our European competitors.
So, the question is not whether those agency workers in other countries
would have had a permanent job or an agency contract, but whether they
would have had a job at
all.
The
Chairman: Thank you. Does any other Member want to come in
on this subject? No, in that case, we will move on to
disability.
Q
187Mr.
Harper: I have a brief question for everyone. When making
recruitment decisions, employers are allowed to use pre-employment
questionnaires to ask a range of health and disability-related
questions of people whom they plan to hire. We have been urged to
include within the Bill amendments to prohibit the use of such
pre-employment questionnaires, although employers would still retain,
as they do in the United States, the ability to withdraw a job offer,
if the potential employee disclosed information that made them unable
to perform the role, but that withdrawal would have to be on good
grounds. Would any of you, particularly the business organisations,
have any problems if such an amendment were tabled and accepted? Katja,
will you answer
first? Katja
Hall: Most of our members would be relaxed about such
an amendment. Increasingly, companies do not rely on pre-employment
questionnaires and, in fact, when they ask about the health of the
individual, it is at the point when they are offering a job. We need to
make sure that there are not particular jobs where health and safety
issues are of particular concern, where there may be a case for using
pre-employment questionnaires, but, subject to that, I do not think
that it is something our members would have a big problem
with. Stephen
Alambritis: There is no evidence of the wide-scale
use of pre-employment questionnaires within the small firm sector. As a
former disability rights commissioner, I have taken soundings with
members, who want to employ the best person for the job. We would have
no qualms about an amendment along those
lines. Dianah
Worman: We certainly think that screening should be
post-offer to check that everything is okay for the reasons that
Stephen has mentioned.
Sarah
Veale: I agree with that, you will be delighted to
know. There is consensus on that.
Nick
Starling: It is not a direct answer to that point,
but insurers do not discriminate on the basis of disability. It is essentially
just a matter of whether any particular issues arise from, for example,
adapted vehicles and so forth. That could arise in an employment
context as
well.
Q
188Jim
Sheridan: Before asking this question, I want to make sure
that I have the right person. Are you the Mr. Starling who
received a prestigious award for the work that you did in denying
compensation to people with pleural
plaques? Nick
Starling: Am I obliged to answer that question? The
Association of British Insurers has a very strong position on pleural
plaques, which is that they are not an illness and therefore do not
merit compensation. But I am Mr. Starling of the Association
of British Insurers,
yes.
Q
189Jim
Sheridan: I would like to establish whether you are the
Mr. Starling who got an award for the work that you did in
denying people
compensation. Nick
Starling: I have not received any award, other than
my salary from the Association of British
Insurers.
Q
190Jim
Sheridan: The question that I want to ask is, given the
work that the insurance industry has done in denying people
compensation for pleural plaques, there is a significant school of
thought that suggests when you are diagnosed with that illness, you are
disabled. Certainly, if it develops into full blown mesothelioma, you
are disabled—if not dead. Given that, I want the insurance
industry to clarify whether the measures in the Bill will assist it in
denying people who have been diagnosed with mesothelioma or pleural
plaques proper
compensation. Nick
Starling: I do not think that the Bill has any
relevance at all to paying compensation for illness or injury derived
from the workplace. I do not believe that there is any link here at all
with that sort of issue and I do not fully understand the reason behind
the
question.
The
Chairman: I allowed the question, Mr. Starling,
because the issue that we are covering is that of disability. It seems
to me that the question is clearly within that category, and for that
reason I allowed it. However, you are, of course, at liberty to answer
as fully, as comprehensively or, indeed, as briefly as you think
appropriate. Nick
Starling: If you wished to buy health-related
insurance and had mesothelioma, clearly that would be an issue. You
would not be able to obtain cover for that for understandable reasons.
If you have pleural plaques, that is an indication of exposure to
asbestos and would be part of any risk assessment, but it is not
directly related to the provisions in the Bill, as I understand
them.
Q
191Jim
Sheridan: You said that you do not discriminate against
people with disabilities. Do you recognise that mesothelioma is a
disability? Nick
Starling: No. My understanding is that having a
disability relates to people who have a long-term disability
that they might be born with or develop. Mesothelioma is an illness.
Unfortunately it is a fatal illness, and it is dealt with by insurers
in that
context.
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