Equality Bill

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The Committee consisted of the following Members:

Chairmen: † Mr. Joe Benton, David Taylor, Ann Winterton

† Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)

† Baird, Vera (Solicitor-General)

† Baron, Mr. John (Billericay) (Con)

Boswell, Mr. Tim (Daventry) (Con)

† Brown, Lyn (West Ham) (Lab)

† Drew, Mr. David (Stroud) (Lab/Co-op)

† Featherstone, Lynne (Hornsey and Wood Green) (LD)

† Foster, Michael Jabez (Parliamentary Secretary, Government Equalities Office)

† Griffith, Nia (Llanelli) (Lab)

† Harper, Mr. Mark (Forest of Dean) (Con)

† Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

† Hesford, Stephen (Wirral, West) (Lab)

† Howell, John (Henley) (Con)

† Mason, John (Glasgow, East) (SNP)

† Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)

† Penrose, John (Weston-super-Mare) (Con)

† Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)

† Thornberry, Emily (Islington, South and Finsbury) (Lab)

Alan Sandall, Eliot Wilson, Committee Clerks

† attended the Committee

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Public Bill Committee

Tuesday 23 June 2009

(Morning)

[Mr. Joe Benton in the Chair]

Equality Bill

Written evidence to be reported to the House

E48 - C2E (Committed to Equality)

E49 - Equity Partnership

E50 - Scottish Women’s Aid

E51 - Elaine Smith MSP

E52 - Equality and Diversity Forum (additional memorandum)

E53 - Paul Thomas

Clause 38

Contract Workers

10.30 am

John Penrose (Weston-super-Mare) (Con): I beg to move amendment 213, in clause 38, page 28, line 2, after ‘worker’, insert

‘with a protected characteristic compared to a contract worker without a protected characteristic’.

The Chairman: With this it will be convenient to discuss amendment 214, in clause 38, page 28, line 10, after ‘worker’, insert

‘with a protected characteristic compared to a contract worker without a protected characteristic’.

John Penrose: It is a pleasure to see you in the Chair, Mr. Benton, as we prepare to consider these measures. The amendments are multi-technical and seek clarification. During the evidence sessions at the start of our deliberations, there was some discussion with representatives of the insurance industry about contract workers. I want to clarify whether the Government are clear about the comparator for the clause and to know whether, when talking about discrimination against contractors, we are talking about discrimination against contracted workers without a protected characteristic or non-contract workers, such as regular employees, as the relevant comparator. I hope that the comparator that the Minister puts on the record is straightforward.

The evidence session a couple of weeks ago sounded a few warning bells in my mind, and it is important that we clarify matters. Without trying your patience too much, Mr. Benton, I want to highlight the fact that all members of the Committee are aware that separate measures that are before the House will impact on contract and agency workers, and I want to ensure that the Bill is not a stealthy way to achieve something that is supposed to be in those measures and that it will do what it is intended to do, rather than something broader. I hope that the Minister can put our minds at rest.

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The Solicitor-General (Vera Baird): Good morning to you, Mr. Benton, and to all members of the Committee. The provision is not an attempt to do anything stealthy of the type that has been mooted, although my response will be a tiny bit more complicated than my just saying no.

The clause makes it unlawful for “the principal”, the person who makes work available to contract workers, to discriminate, harass or victimise a worker. Amendment 213 would change the effect of the law by limiting the comparison by which discrimination was established to another contract worker. That would be the comparator.

However, clause 22 already establishes the fact that, as under the current law, the comparator must be someone whose circumstances are not materially different from those of the complainant. That is likely to be another contract worker, but it is not impossible that a claimant could seek to compare their treatment with that according to a permanent member of staff employed by the principal if there were, as clause 22 requires, no material difference between the circumstances in the case. It would be a question of fact about whether there was any material difference.

John Penrose: To clarify the Minister’s point, it is important to understand what the similarities and the legitimate differences might be. I hope to hear reassurance that the legitimate differences might be that contract workers would be different because of the terms of their contract and the fact that they are not permanent employees and have different terms and conditions as a legal basis for their engagement with the principal. However, if the task that they are performing is, under the terms of the contract, the same as that of a full-time employee, that would be a fair comparison. In other words, we are not trying to eliminate the differences between contract workers and full-time workers, those being different forms of employment—both of which have a legitimate purpose and value in the workplace, and which we would not want to fudge or try to elide.

The Solicitor-General: The hon. Gentleman is absolutely right. The issue is protected strands and discrimination. Issues elsewhere relate to different contractual terms, which are often different between contract workers and employees, and there is no sneaking elision of the two.

May I speak to amendment 214 before I specifically say what the hon. Gentleman wants me to say? Amendment 214 would introduce a comparator to victimisation where no comparator is necessary at all, and it would turn current law on its head. I know that it is only a probing amendment, but I need to say that we could not possibly accept it, because it would have that peculiar effect.

On 8 May, the Department for Business, Enterprise and Regulatory Reform issued a consultation document on the proposed approaches to the European agency workers directive, which requires that agency workers be treated equally with permanent staff in the organisation in which they are placed after a qualifying period determined by member states, along with social partners. According to the directive, the qualifying period is to be 12 weeks. In our view, the document does not contain any policy risks in relation to the Bill.

The proposal is that protection be granted to agency workers as for a permanent staff member. It is to be decided whether a hypothetical comparison will be permitted as a comparator, but the entitlement will be

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to equal treatment with that comparator in terms of conditions of work. That is the directive, not the Bill. However, there might be issues from an employer’s point of view. The protection is distinct from that provided in the Bill, which is concerned with presenting less favourable treatment because of protected characteristics rather than because of the nature or conditions of the work. They are two completely separate policy streams. I hope that satisfies the Committee.

John Penrose: I thank the Minister for that explanation. That is indeed the point I was driving at and she has explained that the two strands are entirely separate—one does not affect the other. It is important for businesses around the country to have that on the record, so I thank her for it. With that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.

Clauses 39 to 49 ordered to stand part of the Bill.

Schedule 6

Office-holders: excluded offices

Lynne Featherstone (Hornsey and Wood Green) (LD): I beg to move amendment 199, in schedule 6, page 170, line 9, at end insert

‘or other authorities of the GLA family’.

An amendment to clarify that elected members of GLA authorities (MPA, LFEPA etc.) are to be treated in the same way as members of the GLA.

This really follows on from the clause 2 amendment where we attempted to include the Greater London authority in the socio-economic duty. There seems to be a similar anomaly, so I am trying to get the Minister to clarify whether elected members of the GLA authorities, which include the Metropolitan Police Authority and the London Fire and Emergency Planning Authority, will be treated in the same way as the members of the GLA itself.

The Solicitor-General: Paragraph 2 of the schedule excludes political offices from the protection—available under clauses 46 to 48—against discrimination, harassment and victimisation. The provision ensures that essentially political matters, such as appointment to council offices or indeed to ministerial offices, do not come before a tribunal. There is a carefully drawn exclusion of specific offices in specific political settings, which include GLA offices held by the Mayor and members of the assembly. That is obviously a good thing.

The connection between election and offices in places such as the MPA is not so clear. Protection for people holding offices in such bodies will be available in any case only if the office satisfies the definition of a personal or public office for the purposes of clauses 46 to 48, or if it fits under any other provision in part 5, but it will not arise as a result of election.

The amendment would cause confusion between members of the authorities mentioned in it, some of whom are elected, although many are not. We think it would complicate the provision. In essence, the provision protects people who are elected, as opposed to those

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who get to their office in some different way, and it would be unlawfully regressive if the amendment were accepted.

The hon. Lady has made her point; she has probed the issue. I hope that she now appreciates the complexity of the matter and I invite her to withdraw the amendment.

Lynne Featherstone: I have listened carefully to the Minister. To clarify, is she saying that if someone is elected to the GLA and then appointed to the MPA, which is what happens to elected members on the GLA, they will not be protected?

The Solicitor-General: If it was a personal or public office, or if they were in employment, but otherwise not.

Lynne Featherstone: Okay. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Clause 50 ordered to stand part of the Bill.

Clause 51

Interpretation

The Solicitor-General: I beg to move amendment 62, in clause 51, page 40, line 14, after second ‘a’, insert ‘relevant’.

This amendment and amendment 63 would correct a minor drafting error to clarify that the interpretation of a reference to conferring a relevant qualification applies in relation to all relevant qualifications. A reference to conferring a relevant qualification would then include a reference to renewing or extending its conferment.

The Chairman: With this it will be convenient to discuss Government amendments 63, 75, 76 and 77.

The Solicitor-General: The amendment inserts the word “relevant” before “qualification”, thereby making the wording more specific. I do not know whether there is any need to debate that.

Amendment 62 agreed to.

Amendment made: 63, in clause 51, page 40, line 15, after ‘a’, insert ‘relevant’. —(The Solicitor-General.)

See the explanatory statement for amendment 62.

Clause 51, as amended, ordered to stand part of the Bill.

Clause 52

Employment service-providers

The Solicitor-General: I beg to move amendment 226, in clause 52, page 41, line 12, leave out from ‘service-provider’ to end of line 14 and insert

‘, except in relation to the provision of a vocational service.’.

This amendment and amendments 227 to 229 would maintain the effect of the existing law by providing for persons who provide certain employment services to be subject to the anticipatory duty to make reasonable adjustments that is imposed by Part 3 in relation to services generally.

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Prepared 24 June 2009