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
when it comes to reasonable adjustment placed on those providing
employment services and vocational services. The amendment maintains
the existing protection by obliging an anticipatory duty. Disabled
people wanting to avail themselves of high street employment agencies
or Jobcentre Plus need to be able to access the services on offer and
receive information and advice in ways that are accessible to
them. 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
people’s 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 irrelevant—the 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.
Clause
53Interpretation 10.45
am 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.
Clause
56Interpretation
Lynne
Featherstone: I beg to move amendment 244, in
clause 56, page 43, line 38, at
end insert— ‘(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 protection—I
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 themselves—but 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
official business in respect of those bodies as well is right, because
they operate effectively as an extension of the local authorities, the
functions of which they are discharging. It is better to do that by
secondary legislation, rather than in the Bill, for greater
flexibility, given that local authorities change and the situation is
dynamic. We shall consider what bodies should be included by means of
the power, and we shall look at the ones referred to by the hon. Lady
at that
time. 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.
Clause
58Communications 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.
Clause
59Relevant
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 A’s 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 A’s 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 24—Relevant 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-trodden—if 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 comparator—to point to
someone else to compare with, in the work that one is undertaking. That
has proven—the TUC, the Fawcett Society and the Women’s
National Commission agree—to 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 underpaid—cleaners, 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,
women’s 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
Women’s 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 Benches—I suspect on many
other Benches as well—the 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 Women’s 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
possible—we have made it so in clause 66—as 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
Bill works, and cannot be right. Direct discrimination in pay can, and
should, in our view be properly examined through the equality clause
provisions in the
Bill. 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 opposite—scrap the contractual
approach—or 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. 11
am Sitting
suspended. 11.8
am On
resuming—
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