Equality Bill

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The Solicitor-General: Has the hon. Lady applied her mind to what would happen in the case of a dispute between the claimant and the representative, or to what would happen to costs in the classic structure of an employment tribunal? Would they pass, or would they not pass? Those are important details. Perhaps she has some answers; it would be helpful if she did.
Lynne Featherstone: If I had as many legal advisers as the Minister, I am sure that I would have a host of answers, but I am not so supplied. However, after this Committee, I shall seek those answers for her. I am sure that I can find them, but I do not have them to hand.
I think that the Minister knows that the argument is plain. My proposed system would be more efficient, would make it easier for individuals to access justice and would end the inequality that they suffer year on year. The greatest problem with equality legislation is not the legislation itself, which is often quite good, but people’s inability to get it applied in a fair and timely fashion. There is very little in the Bill that will address the extensive backlog of cases. That poses a huge obstacle. Representative action would be a dramatic step change and act as a greater deterrent to those who discriminate in employment and who can make cold-hearted calculations on the cost of their discrimination. If the employer knew that employees being discriminated against— especially if the discrimination is widespread—could take action fast with strong bodies to represent them in the fight against the employer, the latter might be deterred from discriminating in the first place.
Mr. Harper: The hon. Lady is conflating two points. She said that those who discriminate would be deterred, if they thought that the people against whom they were discriminating could take action fast. That is the point about the resourcing and efficiency of the tribunal system and the need for cases to progress through that system. The second point—the one that references the new clause—is about whether those being discriminated against could bring a collective case. Those are not the same things. Even if representative actions could be brought, the process used to take them through the tribunal system could still get hugely backed up. The advocates might be more effective, as the hon. Members for Ayr, Carrick and Cumnock and for Stroud said, but progress through the system could still be slow. They are two separate things. It will be helpful if the Minister breaks those down when she responds to the debate.
Lynne Featherstone: Again, in a sense, I am arguing for both. Were there to be representative action, that, in itself, would contract the number of cases that had to go to the tribunal. It would also act as a deterrent to an employer to know that the case could be represented by the union or by the EHRC, which is a strong advocate. It would work on all those levels.
Mr. Harper: I would like to pick up on one point. The Solicitor-General has already asked how much the proposal has been thought through. Is it really the case that, if we allowed representative actions, we would reduce the number of cases? One argument is that—many members of the Committee, including the Minister, have said so—it would be difficult to bring a case, and there would be many barriers. If we allowed representative action—I am not necessarily arguing against it—would we not increase the number of cases? If so, we could make the system more difficult.
I ask about that only because I know—Committee Members will have to forgive me, because I am doing this only from memory—that the equal pay cases that have been brought, for example those related to local authorities, have involved a significant number of people. They have not exactly moved swiftly through the system. If we do not think about the processes in the tribunal system together with the provisions under the clause, we would be in danger of clogging up the system even further. We have to take the two things together, and I hope the Minister will do that when she responds.
Lynne Featherstone: The hon. Gentleman makes a good point. That is a call to arms both for resources and for the number of tribunals that are able to process cases, but I do not think it is an argument against representative action.
I do not want to detain the Committee any longer. New clause 10 is one of the most important proposals in the names of Government Members. With the best will in the world, with the Equal Pay Act 1970 and with tribunals, women are stuck in a queue so long they sometimes die before they get there. I think the Minister has to answer that question.
Ms Abbott: I rise to support the new clause, which, as has been said, is probably the single most important new clause in the Bill. We have debated many clauses and amendments in the Bill that are matters of principle, and we are none the worse for it. We have debated many clauses and amendments, which, in the short run, would not have much effect. Suppose that we had more black or ethnic minority candidates, which I would want. We would be lucky to get more than two or three new MPs out of it, given where we are in the current electoral cycle. The point about the new clause is that it can transform lives, potentially thousands of lives.
I say with confidence that no member of this Committee has ever had the experience, which thousands of my constituents have, of being a woman bringing up a family on the salary from one or even two low-paid jobs. They would not know or understand what a grinding, oppressive life that is. We turn to those same families, the same female head of families, and say that they are not good enough parents, they do not know where their children are and they are not contributing to society, when we, as the Government, could do something to address their immediate economic plight.
The arguments on representative actions are unanswerable, and I wonder what the Solicitor-General has to say. They will help people who are the most vulnerable and the least able, as individuals, even with the support of their trade union, to go forward. They would address the issue of low-paid women, and indirectly help to bring thousands and thousands of children out of poverty.
We can lecture the poor about their lifestyles, about being good citizens and about parenting, but we can, in this Parliament, in this Committee and in the Bill, do something to address the economic standards and hardship of too many women in cities up and down the land.
10 am
Mr. Harper: On reading the new clause closely, I realised that it would compel the Minister to make regulations to permit either the Equality and Human Rights Commission or a registered trade union to be the representative body. Does the hon. Member for Hackney, North and Stoke Newington think that those are the only two groups that should be allowed or should lawyers be allowed to do so, much as in the United States with class action? Should it be just those two bodies? I do not speak as a lawyer.
The new clause, which is probably the single most important new clause to the Bill, should address the harsh reality of the people among whom I live and whom I try to represent, as well as that of some members of my family. My concern with representative actions is that the issue might already have been traded away because of how antagonistic any clause of this kind is to big business.
I would not like to think that before the Bill came into Committee unspoken agreements were made that the issue would not be touched because it is too difficult for big business. Big business is undoubtedly going through a difficult time, but ordinary low-paid women are going through an even harsher one. If we, at this phase of the Administration’s time in office, cannot address those women’s issues, they are entitled to ask in any coming general election whether we are really thinking of them and addressing their position. I support the new clause.
Mr. Harper: I shall be brief. I want to put the issue that I raised directly to the Minister. Obviously, we have been debating the principle, but we are also speaking specifically to the new clause and whether the Committee should include it in the Bill.
Subsection (1) would specifically compel the Minister to make regulations to permit only the EHRC or a registered trade union to take representative action. I want to probe on that point, although she will obviously reply on the clause specifically. If the EHRC and trade unions are to be allowed to represent a class, should lawyers be allowed also?
I ask because the provision opens up a change in our legal system that would probably generate widespread use of class actions, which do not tend to be brought in this country to the extent that they are in the US. Depending on the rules about funding such actions and whether they would be no win, no fee, the provision could drive a significant change—we could argue about whether that would be for good or ill.
We have seen what happened with the move to no win, no fee in personal injury cases, which made some significant changes. It has clearly had benefits for individual claimants, but one could argue that it has driven up the cost of insurance and caused cases to be brought, not necessarily for good reasons, that would not have been brought previously.
We could argue about that, but the provision would clearly drive significant change. When the hon. Member for Ayr, Carrick and Cumnock speaks to the new clause, she can say why she chose to make the EHRC and the trade unions the only two appropriate organisations, but I would like the Minister to comment on the Government’s views on the new clause and the possibility of allowing lawyers to bring class actions.
Also—I think the Minister referred to this—how would the new clause work on things such as costs? One issue in employment tribunals is that employers often are, or feel the need to be, legally represented while those who bring the cases are not compelled to be. However, in a significant representative action representing a class of people, both sides would effectively be legally represented. That might be appropriate as a way to bring balance to the situation, but I suspect that it would drive up the costs of the actions significantly.
It might be possible to argue that in bringing a representative action on behalf of a significant number of people the cost per claim would be lower, although the costs would be driven up. However, there would be the issue that I raised in an intervention on the hon. Member for Hornsey and Wood Green—whether the number of claims would be driven up.
Those are quite complex issues because—the Solicitor-General alluded to this in her replies to the hon. Member for Hackney, North and Stoke Newington—there are dangers in not thinking through and testing how something would work in practice, and not ensuring that all the pieces fit together properly. If representative actions are brought, as the hon. Members for Ayr, Carrick and Cumnock and for Stroud would like, but no one has ensured that the rest of the system works, or thought through the costs or the workings of the tribunal process, there will be a danger of gumming up the works—to the detriment of everyone involved.
Mr. Drew: Does the hon. Gentleman accept that one reason many people can never seek redress is that there is no mechanism, other than belligerently pursuing their cause? All hon. Members will have encountered people who ended up in an employment tribunal representing themselves, not knowing at all about the system and losing their case simply because they were inadequately prepared and could not make proper representations. That is what the new clause is about; that is why I think it is a matter of justice. I do not believe that it would necessarily lead to a huge explosion in the number of new cases. It would just mean that people were properly represented and could seek the right redress.
Mr. Harper: The hon. Gentleman makes a good point—that may indeed be the case, but there is a need for thought and analysis of the likely effects. I know that to an extent they are unpredictable because the thought process involves trying to think through the different decisions that people could make. The question, I suppose, is whether there would be significantly more cases or whether the success rate would improve without the number being driven up significantly. To some extent, research and testing could be done on that, but it is obviously a judgment call. This needs to be thought through to establish what the impact would be.
To pick up the point that the hon. Member for Hackney, North and Stoke Newington made, fairly large companies have resources at their disposal and, even if they do not engage professional legal representation, they have skilled human resources professionals who are well versed in the relevant law, so there is some disparity in resources when an individual brings a case against a large company without representation and without the ability to fund it.
A large company can send an HR person off to deal with the tribunal, and perhaps that will not affect the business, but if a small company’s owner-manager, or another senior person, is taken away for a significant time, the power relationship is sometimes reversed. Often, people settle cases that they think do not have merit because the cost of pursuing them—
Sandra Osborne: The hon. Gentleman is making a valid case about small employers, but does not that happen now in individual cases anyway? What makes him think that a group of people would make things worse?
Mr. Harper: I am simply responding to the quite proper point about power imbalance made by the hon. Members for Stroud and for Hackney, North and Stoke Newington. If we are to think the issue through, it is also worth thinking about the impact on smaller companies. The hon. Member for Ayr, Carrick and Cumnock is right: what I described happens now. I was making the point that the insurers of those companies often tell them to settle, regardless of the merit of the case, because the cost of defending it will be significant.
I am not sure—I was listening carefully to the hon. Member for Hornsey and Wood Green and she was not sure—what the effect of the measure would be. If it would drive up the number of cases, we need to think about those smaller companies that are concerned about the impact of employment tribunals. I am not saying that this involves all, or indeed most of, the cases, but cases are brought to tribunals that do not have merit and are being brought because the employee has little to lose. Cases are brought for reasons that perhaps are not as honourable as they might be.
That is not to disparage the very many valid cases, but we must consider the other side of the argument, particularly for those smaller companies for which what I have described is a serious concern. Cases have been brought to me in my constituency in which it is a concern. If we are thinking through a significant change—a number of hon. Members have said that it will be a significant change in the law—we need to think through all the consequences.
John Mason (Glasgow, East) (SNP): It seems to me that the picture being painted by the hon. Gentleman is far too one-sided. We have heard from hon. Members across the board about the problems experienced by individual employees, who are often not well educated, do not know the law and so on. They are often up against very difficult employers, as I have seen myself. Yes, some employers might be in a difficult position, but surely there is a basic wrong that needs redress.
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