Q
192Jim
Sheridan: So you discriminate against people with
mesothelioma. Nick
Starling: If you have mesothelioma, clearly it is a
very serious cancer and there would be circumstances in which it would
be difficult to get particular sorts of insurance, because they are
health related and you would not be able to get
them.
Q
193Mr.
Harper: May I come in briefly on this, because it
illustrates whether we are correct in using the word
“discrimination”? On Mr. Sheridan’s
point, if you have a terminal illness and you know that you have it,
clearly you are not going to be able to take out a life insurance
policy. That is straightforward and, particularly in relation to age
and other types of discrimination, it goes to the heart of what
discrimination means. Clearly, an insurer has to have a range of facts
at their disposal to price the risk appropriately, and the extent to
which you can price the risk appropriately is an issue raised by the
Bill. If you cannot price the risk appropriately, will that mean that
insurance is available to people? Will insurers then cease to write
that business at all? Will you expand on the ability to price risk and
particularly on the extension, which is around
age? Nick
Starling: In insurance, some risks are extremely
difficult to price. As you say, if you have a terminal illness that
might be one such risk in terms of life or health insurance when
travelling abroad. Having said that, there are specialist providers
that cover such risks or provide insurance that manages them. If you
did not have that ability to manage risks, in some circumstances
insurance would be almost impossible to buy across the
piece. In
effect, if you have a disability, such as being wheelchair-bound, the
risk is that the insurer’s price will be associated only with
things such as special modifications to a vehicle and will not
otherwise affect the way in which insurance is
provided.
The
Chairman: Evan Harris wants to come in on the subject of
positive
action.
Q
194Dr.
Harris: I just want to ask members of the panel who have a
view on the new provisions what their views are. If you have a strong
view, now is your chance. I am happy to start with Stephen if he has a
view on the provisions whereby positive action is allowed in making
employment decisions between “equally qualified
candidates”. Stephen
Alambritis: We do not have a strong view. We are
relaxed and content with the intentions of the Bill on this. The
chances of a small employer having in front of them two equally
qualified candidates who are both suitably qualified are minuscule,
whereas the consultants or recruiters used by a large firm would
normally present it with two excellent candidates and leave it up to
the employer to make the final
decision. Dianah
Worman: We welcome this new tool in the kitbag for
progressing diversity, but we do not see it being used very often. It
could be used successfully only
by sophisticated organisations that can evidence why they are using this
particular technique. It is more likely to be useful in situations in
which you are recruiting a number of people, such as fast-track
graduates, and you want people with certain kinds of talents and to
develop certain opportunities. You might want to show that you need to
choose more women than men or a greater proportion of people from
minority ethnic groups to work towards a balanced work force. You would
have to ensure that you evidenced why you were doing that. For example,
you might have wanted to address an existing imbalance in your work
force. You
would have to be sophisticated to use this technique successfully so
that there is no backlash. There is a great deal of confusion about
what positive action is. People only want to be appointed because they
have merit in the first place. That has to stack up, but we need it in
the
kitbag. Sarah
Veale: I agree with that. I do not think that
regulation is the right way to take positive action further. What the
Government have done is very welcome, but other organisations such as
the Chartered Institute of Personnel and Development and the Equality
and Human Rights Commission have a big job to do in explaining what
positive action means so that what Dianah has described can be put in
place. It is much more complicated than looking simply at recruitment
decisions. It goes far further than that. Much more guidance and help
is
needed. Katja
Hall: I agree with you on this issue. We would like
to see many more employers use positive action to improve diversity in
their work forces. We have some concern about how the clause is
drafted. It could lead to legal uncertainty, which would make employers
reluctant to use it. We would like to see tighter drafting of the
clause.
Q
195Mr.
Harper: I want to pick up on one point that Dianah made.
Dr. Harris’s question was specifically about clause 153, which
is about recruitment and promotion decisions. My reading is that the
explanatory note applies only to people who are equally qualified,
whereas the language in the Bill—which we will probe in
Committee—talks about people who are “as
qualified”. That does not seem to be the same thing. The measure
does not allow you to have a policy of discriminating in favour of
particular people. It must be done on a case-by-case basis. I agree
with the broad consensus that it will not be possible to use it very
often. The chances of there being two equally qualified candidates are
pretty slim. There must also be evidence that they are equally
qualified. Given that—one or two of you have already picked this
up—is this really the right way? If you look at clause 152, you
will see that it focuses much more on the positive steps that employers
can take to reach out into different groups that they perhaps do not
recruit from. Is that a more productive way of approaching this matter
than clause 153?
Dianah
Worman: You need many different tools in the kitbag
to make progress; you cannot depend on one. The discussion has gone
back to good people-management practices. If you get your act together
on that, you are less likely to have to introduce these techniques, but
we need them all to make progress.
Katja
Hall: A lot of the focus should be on the
pre-recruitment stage in terms not only of encouraging people to apply
to work in a particular company, but of
tailoring training to ensure that particular groups progress within the
workplace. That is
correct. In
terms of the drafting of the clause itself, we need to be clear what it
refers to, but I am not sure that we are at the moment. We have some
concerns. The explanatory notes and the clause are different, but we
are also not entirely clear as to what “as qualified as”
means in this context. Some of our legal members have been saying that
it could be taken to mean just qualifications. We would like to see a
much broader definition including experience and a reference along the
lines of “‘as qualified as’ in the reasonable
judgment of the employer”. Only with those caveats will we give
employers the confidence to use the power. Otherwise, it will be a
missed
opportunity.
The
Chairman: We have less than 14 minutes to go. I am going
to call Vera Baird and then John
Penrose.
Q
196The
Solicitor-General: On the same point about positive
action, my understanding from conversations with some business
organisations is that this kind of step is being taken now. For
instance, if somebody wants to market something to a black and minority
ethnic group, and if two sales people apply for the job, one of whom
comes from the group, they would want to favour the person who comes
from the group, given that they would be under-represented in the
community of employees and that it would be appropriate and helpful for
the marketing prospects of the business. If that happens now—it
would be surprising if it did not and the evidence that we have
garnered is that it does—the danger is that it would be
discriminatory at the moment. Protection will come from this clause in
this
Bill. Katja
Hall: Basically, employers want certainty and clear
parameters. That requires some redrafting of the Bill. We have not had
a lot of feedback saying that employers are using it at the recruitment
stage at the moment—obviously, there are different rules
relating to disability. Employers want clarity above all and good
practical guidance. We urge the EHRC to make that one of its top
priorities and to give employers the confidence to use
it.
Q
197The
Solicitor-General: Forgive me for pressing, but I do not
believe that you have answered my question. Leave disability out of it;
it is not what I meant. I referred to race. It would be discriminatory
to do what I have suggested happens at the moment in business, whether
you have any experience of it or not. Will this clause give some
protection to managers who wish to take steps of that kind?
Katja
Hall: Yes. That is why we support the
clause.
Stephen
Alambritis: Yes, we agree as well. Employers have an
eye to marketing and sales, and to getting the best possible deal and
symmetry between their staff and customers, so actions would be taken,
as they are today, that are positive about whom to employ. The positive
action clause would help in that regard.
When debating
amendments, we would put into the pot the use of the word
“suitable” as well as “qualified”. A small
firm would look at the suitability of the potential employee as well as
at the strap line of whether they are
“qualified”.
The
Solicitor-General: Thank you very much to both
witnesses.
Sarah
Veale: We completely agree with that. Guidance is
essential and positive action is a very good thing. We support the
clause.
The
Chairman: We have just more than 10 minutes to go. Do
colleagues have further questions? If so, does someone want to indicate
an
interest?
Q
198Sandra
Osborne: Can I ask you about the public procurement
provision in the Bill? Do you welcome it, and how do you think that it
will be implemented? What would be the best way of implementing and
monitoring
it? Katja
Hall: We welcome the provision in the Bill. It is not
particularly detailed, so we look forward to seeing the consultation
document and the follow-up to that. We believe that procurement can be
an effective lever, and our members support the general principle
behind the clause. For the clause to be effective, we suggest that it
needs to be focused on outcomes and not on processes or ticking boxes.
It also needs to be relevant to the contract and to be sufficiently
flexible to enable you to focus on different issues in different areas.
So, for example, if you are delivering welfare-to-work services in
Bradford, race may be a relevant factor. However, if you are
contracting for stationery in Devon, race would probably not be a
relevant factor. So the clause needs to be sufficiently
flexible.
The only
other point that I would make about procurement is that our members get
quite frustrated about the inconsistency in approach. We would like to
see much better guidance given to local authorities and public service
organisations about what questions they should ask, what they should be
looking out for and about how the bids are assessed. Certainly, the
feedback that we have received is that there is a lot of inconsistency
at the moment and employers do not quite know where they
stand. Stephen
Alambritis: The key point in ensuring that the
procurement process is good for everyone, including large and small
firms, is simplification of the process. What we would seek, as we talk
through the clause, is to use the principles of the Glover review,
which looked at public procurement and sales, to see whether or not the
clause can take advantage of that simplification of procurement
processes. So, in dealing with the procurement aspects of the Equality
Bill, we would be content if the Glover review recommendations were
thought of as the Bill is being considered.
Q
199The
Solicitor-General: May I pick up on Katja’s
example? I am sorry; I am not deliberately directing all my questions
at the CBI.
Katja, you
talked about the difference between delivering welfare-to-work in a
place where there is a large BME population, where you would have
thought that procurement to assist equality and diversity is
appropriate. By contrast, regarding the delivery of pencils in Devon,
the suggestion is that it would not be thought appropriate. However,
you would not want public authorities to procure stationery from a
stationery manufacturer in Devon that had repeatedly broken equality
law and that had been brought to the tribunal for being racist, sexist
or for discriminating against disability, would you? So,
in that situation it would be relevant as to whether or not that company
was included in the pool, would it not? The
Chairman: Before the answer is given, I just want to say
that I would like all four colleagues to get in and ask questions.
Therefore, really pithy answers would be
appreciated. Katja
Hall: If that company had been found repeatedly to
have been discriminating, I think that it would be relevant. However, I
think that we need to be careful not to penalise companies for a
one-off
mistake.
Q
200The
Solicitor-General: It would have to be proportionate,
would it not, to exclude them? However, that possibility of exclusion
ought to be
available. Katja
Hall: We would need to look at the detailed drafting.
If the company were a repeat offender, then it might be
relevant.
Q
201The
Solicitor-General: “Relevant”? It would be a
good reason to exclude that company. As a public authority, with your
equality duty, you would not buy public services from somebody who paid
black people less than white people, would you?
Sarah
Veale: That is the key thing. The provision needs to
be linked to the public sector duty; it is not there on its own. What
the Government have done is extremely helpful in explaining how this
could
work.
Q
202John
Penrose: I want to pick up that precise point, and I
particularly want to ask Stephen and Katja a question. If we are going
to talk about “outcomes-focused duties”, which I think
both of you have mentioned, the example that Vera just gave is quite
important, because you would be most interested in obtaining the best
value for money from your pencil supplier regardless of what that
supplier had done, providing that it was operating within the law. If
it had not operated within the law, it would have fallen foul of the
law in some way.
I am
interested in whether, if you believe in outcomes-based procurement,
that alters the answer you gave the Minister just
now. Stephen
Alambritis: I do not think that we should seek to
reward bad employers through the procurement process. The award of a
public sector contract is a huge plus and a huge bonus to firms, large
and small. We believe that the award of public procurement contracts
should be based on commercial grounds, but that the reputational aspect
of the business should be taken into account by buyers and purchasers.
We need to be mindful, as Katja has said, of the one-off offender, and
I agree with Vera with regard to proportion. If a firm is continually
known to be defying employment legislation, they are a bad employer and
should not be rewarded with a public procurement
contract.
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