The Chairman: With this it will be convenient to discuss Government amendments 227, 64, 228 and 229.
The Solicitor-General: I call this the back to the future provision, which will restore the position as it was. Amendments 226, 227, 228 and 229 restore the position under the Disability Discrimination Act 1995
Members who in an earlier debate were keen to test the effectiveness of the reasonable adjustment provisions will be reassured that there is no erosion of existing levels in that connection. The amendment also restates the position for enforcement of the duty to make reasonable adjustments in respect of vocational services as being via the employment tribunal. I suspect that that will also meet with peoples approval because it is usually thought of as being easier than the county court.
Amendment 64 concerns clause 53, which defines what the provision of an employment service does and does not include for the purposes of clause 52, which makes it unlawful to discriminate, harass or victimise someone when using such a service. We want to omit clause 52(3), which excludes from that clause employment services provided other than by way of a trade or profession. We want to do that because it is necessary to ensure that employment services provided by volunteers are also captured by the discrimination provisions.
All together, the exceptions ensure that the Bill is consistent with the position under current law, whereby in what capacity an employment service is provided is irrelevantthe appropriate duties are still on the provider.
Amendment agreed to.
Amendment made: 227, in clause 52, page 41, line 14, at end insert
( ) The duty imposed by section 27(7)(a) applies to a person concerned with the provision of a vocational service; but a failure to comply with that duty in relation to the provision of a vocational service is a contravention of this Part for the purposes of Part 9 (enforcement).. (The Solicitor-General.)
See explanatory statement for amendment 226.
Clause 52, as amended, ordered to stand part of the Bill.
Amendments made: 64, in clause 53, page 41, line 37, leave out subsection (3).
This amendment would omit Clause 53(3) which excludes from the scope of Clause 52 services the provision of which is otherwise than by way of a trade or profession, reinstating the effect of existing law, whereby the manner in which employment services are provided is irrelevant.
228, in clause 53, page 42, line 4, leave out subsection (7).
See explanatory statement for amendment 226.
229, in clause 53, page 42, line 12, at end insert
( ) A reference to the provision of a vocational service is a reference to the provision of an employment service within subsection (2)(a) to (d) (or an employment service within subsection (2)(f) or (g) in so far as it is also an employment service within subsection (2)(a) to (d)); and for that purpose
(a) the references to an employment service within subsection (2)(a) do not include a reference to vocational training within the meaning given by subsection (8)(b), and
(b) the references to an employment service within subsection (2)(d) also include a reference to a service for assisting persons to retain employment.. (The Solicitor-General.)
See explanatory statement for amendment 226.
Clause 53, as amended, ordered to stand part of the Bill.
Clauses 54 and 55 ordered to stand part of the Bill.
(ca) a member of an authority in the GLA family;.
An amendment to ensure all GLA authorities cannot discriminate against its members, such as the LFEPA or MPA.
The Chairman: With this it will be convenient to discuss the following: amendment 245, in clause 56, page 44, line 6, at end insert
(m) a fire authority..
An amendment to ensure members of fire authorities are protected from discrimination.
Lynne Featherstone: We are back to the GLA. The amendment is probing and based on an earlier amendment. Amendment 245 probes the same issue to ensure that members of fire authorities across the country are protected against discrimination. It would be helpful if the Minister clarified where the members of other public authorities, such as police authorities and fire authorities, stand in terms of the clause.
The Solicitor-General: Let me explain the protectionI thank the hon. Lady for the amendments to facilitate that. Amendment 244 is to include authorities in the GLA family within the meaning of local authority for the purposes of protection under clause 55. The amendment would even include the members of those authorities in the definition of a local authority, so they would be prohibited from discriminating against themselvesbut never mind, I appreciate that the amendment is probing.
Members of those bodies may be protected under clauses 46 to 48, in respect of the appointment and conditions of office if they are personal or public office holders, or under clause 36 if the relationship amounts to employment. However, clause 55 aims at elected members while they undertake official business. It harmonises the existing law, providing a limited exception to the exclusion of elected offices from protection under discrimination law, recognising the importance of prohibiting discrimination and enabling reasonable adjustments in the carrying out of official business by local authority members.
We have put a power in clause 56(3) whereby bodies that exercise functions conferred on local authorities may be added to the list, recognising the fact that many members of local authorities are subsequently appointed to other, quasi-local authority bodies to discharge some of the functions of the local authority. Ensuring that such members are protected from discrimination, victimisation and harassment in the carrying out of
Lynne Featherstone: I thank the Minister for that clarification. Having the provision put so clearly into words is helpful. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 ordered to stand part of the Bill.
Clause 57 ordered to stand part of the Bill.
Amendments made: 65, in clause 58, page 45, line 19, leave out from person to scheme in line 20 and insert
who is a pension credit member of an occupational pension scheme as they apply in relation to a disabled person who is a deferred member or pensioner member of the.
A non-discrimination rule does not apply in relation to pension credit members of an occupational pension scheme. This amendment and amendments 66 and 89 would ensure that disabled pension credit members are protected from discrimination in so far as communications in relation to the scheme are concerned.
Amendment 66, in clause 58, page 45, line 26, leave out subsection (2).(The Solicitor-General.)
See explanatory statement for amendment 65.
Clause 58, as amended, ordered to stand part of the Bill.
Relevant types of work
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to discuss the following: amendment 260, in clause 61, page 47, line 16, at end add
(5) Where section [Relevant types of work (No. 2)] (2) applies, the provisions of this section will apply to the extent that a term of As is less favourable than a corresponding term of B would be, or that A does not have a term which B would have..
Amendment 261, in clause 62, page 48, line 27, at end add
(11) Where section [Relevant types of work (No. 2)] (2) applies, the provisions of this section will apply to the extent that a term of As is less favourable than a corresponding term of B would be, or if a discretion in relation to A is capable of being exercised in a way which is less favourable than it would be in relation to B..
New clause 24Relevant types of work (No. 2)
(1) Sections 61 to 65 apply where
(a) a person (A) is employed on work that is equal to the work that a colleague of the opposite sex (B) does;
(b) a person (A) holding a personal or public office does work that is equal to the work that colleague (B) of the opposite sex does.
(2) To the extent set out in sections 61 to 64, those sections also apply where A does not have a colleague B who does work that falls within subsection (1), because there is no such person of the opposite sex to A..
Lynne Featherstone: This debate is about hypothetical comparators. The amendments would allow people to make a claim for equal pay when there is no real comparator. The argument is quite well-troddenif one Googles hypothetical comparator on the parliamentary website, one can see that the discussion goes back through many forms of Committees over many years. This time round, I hope that we will make a change.
Traditionally, women who suffer unequal pay are at a significant disadvantage to other forms of discrimination, such as race and disability. It is the only type of discrimination regarding pay differentials where there is a particular requirement to propose a real comparatorto point to someone else to compare with, in the work that one is undertaking. That has proventhe TUC, the Fawcett Society and the Womens National Commission agreeto be a significant obstacle where such a comparator does not exist. That happens when there is a majority female work force.
Professions dominated by females are often underpaidcleaners, hairdressers, dinner ladies and many other female occupations. They often have a lower ratio of pay. Because there are virtually no men doing comparable jobs in comparable places, it becomes impossible to argue that the work is undervalued, because we cannot point to a real comparator.
For reasons of history and female economic inequality through almost every strata, womens work is always given a lower price tag, even when men are doing equivalent tasks that require equivalent skills to those of a female-orientated job. The requirement is not imposed on other types of discrimination. For example, if someone is trying to prove race discrimination, they are not barred from claiming discrimination if they cannot find a real comparator. It is a discrimination within discriminations.
The Womens National Commission, in its evidence, said that it is very much in favour of hypothetical comparators, and would like to see, as we would on the Liberal Democrat BenchesI suspect on many other Benches as wellthe barrier removed from equal pay claims. The Fawcett Society said that that would make a huge difference. Will the Minister explain why there has been resistance to removing that barrier to equal pay, which has set women back so profoundly? I do not understand the rationale behind it, so I would welcome her response.
Sandra Osborne (Ayr, Carrick and Cumnock) (Lab): I would like to echo the comments of the hon. Lady. Getting equal pay has been a long-term problem. Many women are disadvantaged, especially those who are low paid and whose work is undervalued in our society. I also support the views of the TUC and the National Womens Commission in relation to the matter. I would like an explanation from the Minister as to why the provision cannot be brought in to complete the Bill. I am sure that she has a good explanation, which I am looking forward to hearing.
The Solicitor-General: I know that there are a number of views on the matter. The Fawcett Society and the NWC are in favour of hypothetical comparators, as the hon. Member for Hornsey and Wood Green said. I will turn specifically to that. If anybody finds it helpful, I could set out the whole scheme of the chapter, but I think she put her finger on the point that she is really interested in, as did my hon. Friend the Member for Ayr, Carrick and Cumnock.
I hope that it would be helpful if I set out some examples that are usually given to support the need for hypothetical comparison in equal pay cases. The first kind of example is about gender segregation, which the hon. Member for Hornsey and Wood Green has already mentioned. The example is that in some work environments, as a result of gender segregation, no men are doing equivalent work to women. The suggestion is that if the women believed that they were underpaid, they should be able to claim on the basis that, were there a man doing that work, he would be paid more. The amendment would allow that.
One difficulty with that is what the evidence would be that a man in that situation would be paid more. If there is clear evidence, such as a statement by the employer to that effect, a claim would be a possiblewe have made it so in clause 66as that would be direct discrimination. There may not be many cases of that, but those that exist will be caught by the Bill. Any remaining gap would be in cases where the employer discriminates indirectly against a woman in relation to contractual pay.
The amendments demonstrate the difficulty of doing that. As I understand them, the amendments would permit a claimant to argue that B, a hypothetical employee doing the same or similar work, has a term in their contract that the claimant does not, or one that is better than the equivalent one that the claimant has. It is quite difficult to see on what basis a tribunal could reasonably reach that conclusion. If it were asked to do so by relying on evidence that people doing completely different work had such a term, such a claim would not succeed. In effect, we would be asking the tribunal to decide that the fact that there is a difference in pay between two people of the opposite sex doing completely different work somehow supports the argument that two such people doing the same work would also be paid differently. That is a significant thing to ask a tribunal to do, and considerable uncertainty would emerge.
I may be asked what the difference is between that and a case of indirect sex discrimination. In an indirect discrimination case advanced on that basis, an employer would say that the difference in pay reflects a difference in work. That would, in our view, be sufficient to establish that there was a materially different set of circumstances under clause 22, which is the clause I spoke of earlier when we dealt with contract workers, and hence, the claim would fail.
A similar point can be made in respect of other examples commonly given. For example, a woman being paid only 50 per cent. of the salary given to a man, when she works at 75 per cent. of the value, should be able to claim. Other examples commonly given arise from situations where work has been privatised. They are difficult examples to agree with, because they call for a comparison between the terms of people who are employed by different employers. That is not how the
An alternative approach would have been to scrap the contractual approach, but Members will know that we have retained the contractual approach and the distinction between contractual and non-contractual pay matters for work-related gender discrimination. While we could have done the oppositescrap the contractual approachor allow discrimination claims in parallel with it, in our view, all the difficult issues that arise in equal pay cases would arise with the discrimination approach too, only that they would be in a different order.
Mr. Benton, I wonder if it is possible for me to leave the room for a brief duration. I apologise that it is at so inconvenient a time.
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