Equality Bill

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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?
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