The
Solicitor-General: I do not think that it is difficult. It
is a question of fact. If the nature of the job has changed so that it
has a religious component, perhaps there would be a genuine
occupational requirement. However, if the job is the same, and the
takeover did not require any adaptation to the ethos of the new owner,
then there probably would not be. On such a theoretical example, it is
impossible to say yes or no. I cannot see how the hon. Gentleman will
be assisted by an answer. It seems pretty straightforward that the
circumstances would have considered to see whether the religion tried
to say that there was an occupational requirement, whether that could
be genuine in the context of what had gone before, or whether it might
be because something in the way that the service is delivered by that
religious body requires the religious component. Therefore, as I said
before, it is a question of
fact.
John
Mason: The idea that a religious organisation would employ
only people who belonged to that religious group is not our normal
experience. My experience of Catholic schools in Glasgow is that only
the promoted posts would insist on being Roman Catholic. The other
teachers and staff could be of any religion or
none. The
point about a new employer works both ways. It has been suggested that
someone goes from being in secular or humanist employment to being in
religious employment. I do not know where the British Humanist
Association fits in as we noticed in the evidence sessions that it
counted itself as a religion when it suited it to do so. An employee
could also have a problem going from an organisation with a more
religious ethos to one with a humanist or secular ethos that was
unsympathetic. Such situations will always be handled delicately and we
need to be aware of that.
Dr.
Harris: That person would be protected by the employment
regulations that protect people from discrimination on the basis of
their religion or belief. There is no exemption sought by the secular
world to specifically discriminate against religious
people
regulation 7(3)(a) in the old employment directives. So it is not equal
in that way. It is a specific exemption to be used by religious
organisations, not secular ones. I hope that the hon. Gentleman will
accept that.
John
Mason: My point was that there is a problem both ways. For
example, there may be a problem for a nurse who had been working for a
religious nursing home and was used to praying for the patients who
then had to switch to a nursing home where they were not allowed to do
that. Clearly, that would work the other way as well.
I agreed with
some of the points made by the hon. Member for Stroud, such as
tolerance, choice and including different views. That is what I am
looking for in all the amendments I have tabled. I am disappointed that
the Solicitor-General is not taking on more of the content of the
amendments. Even though we all support proportionality, to take it out
would have resulted in better law. However, I am encouraged and
appreciate the wording that she used. She said that it is a delicate
area and that perhaps the youth worker was not the best example. She
also talked about getting the balance right and diversity of delivery,
which are the kind of reassurances that I and other organisations are
looking for. I thank her for that. On that basis, I beg to ask leave to
withdraw the
amendment. Amendment,
by leave, withdrawn.
The
Solicitor-General: I beg to move amendment 68, in
schedule 9, page 181, line 36, leave
out work and insert
employment. This
amendment would ensure that paragraph 2 of Schedule 9 refers
consistently to
employment.
The
Chairman: With this it will be convenient to discuss
Government amendments 69
to74.
The
Solicitor-General: These are technical amendments and
minor drafting oversights.
Dr.
Harris: To remind myself that I wanted to raise a question
on this, I tabled an amendment that I knew would not be selected. It
was an amendment to the Government amendment and I wanted to give
advance notice to the Minister that I wanted to query one area. Why did
she choose in amendment 69the others in the group are
consequential to thatto extend an exemption to cover section
52(2)(d), which talks about subjecting (d) to any other detriment. My
understanding is that it is unusual to give carte blanche through an
extension. For example, clause 80(2)the part of the Bill
dealing with
educationstates: The
responsible body of such a school must not discriminate against a
pupil... (f)
by subjecting the pupil to any other
detriment. Although
many of those provisions are lifted in the schools exemption in
schedule 11, the specific provision that the pupil should not be
subjected to any other detriment is not lifted in the
religious exemption. I remember that the Government amended the
Equality Act 2006 to ensure that there was not the ability to subject
the pupil to any other detriment. Therefore, more explanation is needed
about why the protection that would otherwise exist from section
52(2)(d) not
being included in the exemption is now proposed to be included. I do not
have a problem with the rest of the increased scope that the Government
are proposing in their amendments.
The
Solicitor-General: It is an amusing idea that tabling an
amendment that is not selected is a form of giving notice to the
Government. Paragraph 5 of schedule 9 allows an employment
service provider to restrict access to the service that they provide to
people with a particular protected characteristic if it is an
occupational requirement for the work to which the service relates.
Clause 52(1) and (2) set out how an employment service provider must
not discriminate in providing services. The category of any
other detriment in subsection (2)(d) is residual, sweeping up
anything that does not fall within the preceding circumstances. If we
accept that an exception is appropriate in principle, it should apply
to all circumstances giving rise to
liability. An
employment service provider should be able to align services with the
lawful needs of the employer and the requirements of the jobs to which
its services relate, as is currently the case. It makes no sense to
pick and choose to what circumstances the exception may apply in that
context. That would only encourage claimants to structure their
allegations so as to bring no claim within what is intended to be a
residual category to avoid applications of the exception. I hope that
that is a satisfactory
explanation. 6.30
pm
Dr.
Harris: I am glad that the Minister had something ready to
read out in relation to my point. SometimesI accept that this
is not true in this caseGovernment amendments are tabled late
in the day and a starred amendment is the only way to give notice that
I want to raise a point on them, other than to make a telephone call to
the Ministers team, which I will be happy to do in future if
tabling a starred amendment offends her. I will have to read what she
has said carefully, either on the record or, indeed, now, but I have no
further objections to the group of
amendments. Amendment
68 agreed to.
Amendments
made: 69, in schedule 9, page 182, line 26, leave out
52(1)(b) or (c) or (2)(a) or (b) and insert
52(1) or
(2). This amendment
would expand the scope of the exception in paragraph 5(1) of Schedule 9
(permitting discrimination in relation to work for which having a
particular protected characteristic is an occupational requirement) so
that it applies to all circumstances in Clause 52(1) or (2) giving rise
to
liability. Amendment
70, in
schedule 9, page 182, line 30, after
52, insert (1) or
(2). This amendment
would limit the exception in paragraph 5(2) of Schedule 9 (permitting
discrimination in relation to training for work for which having a
particular protected characteristic is an occupational requirement) so
that it applies to discrimination only and not harassment or
victimisation. Amendment
71, in
schedule 9, page 182, line 33, leave
out 52(1)(b) or (c) or (2)(a) or (b) and insert
52(1) or (2).(The
Solicitor-General.) This
amendment would expand the scope of the exception in paragraph 5(3) of
Schedule 9 (permitting discrimination in reliance on a statement that a
particular protected characteristic is an occupational requirement) so
that it applies to all circumstances in Clause 52(1) or (2)
giving rise to liability.
Mr.
Drew: I beg to move amendment 184, in
schedule 9, page 183, line 25, leave
out paragraph
8.
The
Chairman: With this it will be convenient to discuss
amendment 185, in schedule 9, page 183, line 35, leave out
paragraph
9.
Mr.
Drew: I unashamedly have taken the amendment on from my
hon. Friend the Member for Gateshead, East and Washington, West
(Mrs. Hodgson). I am firmly of the opinion that she entered
the Governments Whips Office as a result of her tabling the
amendment, so I look forward to my own preferment in due course as a
result of bravely treading where she has left
off. This
is an important issue, and I hope not to delay the Committee for too
long with a proper debate about the lovingly called national
default retirement age. The amendment, which was tabled with the
support of the Liberal Democrats, would remove the NDRA, and I will
happily look at the implications of that. I recall a gentleman coming
to see me at my constituency surgery around six years ago begging me to
intervene in his case. He had achieved his ultimate ambition of getting
a job with the Department for Environment, Food and Rural Affairs at
the age of 63. The job was that of an animal control officer, which is
not necessarily my idea of a nice job, but it was what he wanted to do,
and he wanted to continue to do it. At 63 years of age, he was told by
his employers that he could expect a very short time in the job. He was
upset because he had hoped that he could continue for some time, not
least because it was the first job he had ever had that paid a pension.
That says something of what life is like even in the 21st
century. I managed to get an extension of his working life to 67 but in
due course he was asked to retire. Even that short time ago, that
seemed to be the norm. Amendment 184 tries to remove the notion of
compulsory retirement and amendment 185 would require notice to be
given to someone that they will be compulsorily retired at least six
months before they are 65. I hope that the amendments might become
irrelevant because of an ongoing court case. My hon. and learned Friend
the Minister may be able to say some things about that.
The
Employment Equality (Age) Regulations 2006 ensured that people could
not be discriminated against on the basis of their age in employment
and occupation unless it could be objectively justified. Regulation 30
introduced the idea of a national default retirement age as an
exception to the general rule of non-discrimination on grounds of age.
That allows employers to operate a mandatory retirement age of 65 or
over, allowing them to terminate the employment of a member of staff on
the grounds of age. Employers can also refuse to recruit people over
the age of 65, and that has been laid out in schedule 9 of the Bill.
Before the law came into forces, a number of organisations, principally
Age Concern, took a view. I declare an interest as a trustee of Stroud
Age Concern. One has to play ones cards close to ones
chest as we are not all that far away from the dreaded age of 65. I
also think it is interesting that we can force our employees in the
Houses to retire, when MPs do not face a similar prospect. Only the
electorate can do that to
them. Ms
Diane Abbott (Hackney, North and Stoke Newington) (Lab):
My hon. Friend makes the point that MPs cannot be forced to retire, but
would it not be
better if we were? It would provide opportunity for young, dynamic
people to move into
constituencies.
The
Chairman: Order. I ask the hon. Gentleman to ignore that
intervention. It was way out of
order.
Mr.
Drew: I do not know whether that was on the grounds of
sexism or ageism, but I will take your guidance, Lady Winterton, and
carry on.
The
charitys position is that the regulations are unlawful, both by
introducing the NDRA and by giving employers far too much scope to
introduce other age-based rules in the workplace. On the basis of that,
the case was referred to the European Court of Justice in 2007. The
final ruling of the Court on 5 March 2009 stated that the UKs
retirement laws will only comply with the EU directive if they have a
legitimate aim related to employment and social policy rather than
simply to reduce costs for individual employers. The Court went on to
emphasise that the UK Government will have to meet a high standard of
proof in demonstrating that their policy aim is legitimate. The case is
currently adjourned, as my hon. and learned Friend knows. We will
receive the final verdict of the High Court hearing on 16 and 17 July
2009. It may be that what I am doing will be deemed irrelevant, because
the High Court could say that we have to bring UK law in line with the
EU. Much as I do not like saying such things, perhaps the EU could ride
to our
salvation. Why
is the issue important? In these days of fairness, justice and
equality, it seems unfair that people approaching or at the age of 65
are always the ones who have to be made redundant on the basis that
they should be retiring anyway. The issue is particularly important at
the moment, with the recession taking hold. We all know and, indeed,
have cases in which people are deemed to be expendable because of their
age, yet they are often the most valuable people in their workplace.
They have a lifetimes experience of employment, with all the
expertise that goes with that. The situation seems very
unfair. The
position also seems to be completely contrary to the
Governments aims of encouraging us to retire later and
therefore not to take our pension until later. I am not here to
advocate the policy of eradicating retirement, much as the Government
might think that that would be a jolly good thing because of all the
money that it would save. At the same time, we are in the era of giving
people some choice, and the Government would be keen if people wished
to continue working and to forestall the payment of their
pension. Although
the business lobby has misgivings, it is not entirely against the idea
that there should be some debate and clarity, and, indeed, where such
cases exist, individuals should be allowed the freedom to keep working.
However, according to the Bill, they will not be able to do so. I am
pleased to say that public opinion is ahead of us in Parliament, let
alone ahead of the Government, and there is a growing swathe of opinion
that it is right and proper for people to have the opportunity to
continue
working.
Mr.
Drew: I give way to my near
neighbour.
Mr.
Harper: We would be very near neighbours if it were not
for the River Severn, which divides us. The hon. Gentleman implied that
the measure will prevent people from being kept in employment. All it
says to employers is, If you want to get rid of someone at 65
because that is your mandatory retirement age, youll able to do
so. It in no way stops them keeping someone in work for as long
as they want. If that suits them and suits the employee, there is
nothing in the Bill that stops them doing
so.
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