The Solicitor-General: That is right, I am told. It is about the reach. The key is that any recommendations made to benefit the broader work force and indeed the business would have to be proportionate to the case that is brought, otherwise it would be unlawful. That is a general principle that has found greater emphasis since we brought the European convention into our law. To answer the specific point about time, it would have to be a reasonable period. There might be more creative ways of doing something that a tribunal recommends. The sensible thing would be for the parties to get together first, discuss it and suggest it to the tribunal, which could then recommend it. If parties thought there were a better way forward, that approach would give the tribunal the opportunity to avoid recommending something that was perhaps less suitable.
John Penrose: I thank the Minister for her explanation, which I think she is part way throughit is clear so far. On that last point, in her experience, do tribunals tend to mandate outcomes or process? Is that a matter on which the Government have guidance and which they are able to influence, given that tribunals will want to be independent in many respects?
The Solicitor-General: Some typical recommendations that might help include taking steps to implement a harassment policy more effectively; providing equal opportunities training for staff involved in promotion procedures; and introducing more transparent selection criteria in recruitment transfer or promotion processes. Those seem to be fairly process-based. Those are the examples that I have, so I assume that they are typical and that that is the nature of likely recommendations.
The point is that if a problem that goes beyond the individual claimant has been found, it must be in everyones interest for the tribunal to recommend that it be put right so that the next complainant does not have to come and, as it were, clog up the works.
John Penrose: I take the Ministers point; I see what she is driving at. My concern is that if, for example, equal opportunities training was mandated, people might go through training and come out the other side having ticked all the right boxes, but not necessarily adhere to it afterwards. I am trying to make a point about the difference between mandating an outcome to be achieved by whatever means, which still leaves a duty and a burden on the organisation to achieve it, and mandating a process whereby, when it is complete, the organisation can say, We did it, whether or not the outcome was as desired originally by the tribunal.
The Solicitor-General: I suppose it is difficult to be able to say to a business, Employ 10 more black and minority ethnic staff. If the problem is in that territory, the limitation is probably to say, Have better recruitment processes. Train your middle management with the intention of getting rid of that problem. I do not think that there is anything to be concerned about. It is a pretty simple, logical follow-on to a finding in a tribunal that there is a problem and a recommendation on how best to put it right.
Mr. Harper: May I pick up one more point? When we discussed clause 107 on class actions, or representative actions, the Minister said that proportionality would be important. I do not know whether it was in the consultation paper, but if there is to be a representative action, which by definition covers a lot of people, it follows that the appropriate recommendation might be more significant because it affects more people. Is that explicitly in the consultation document? It would be worth bringing that out so that it was clear to people, because it follows logically from what she said.
The Solicitor-General: The hon. Gentleman is right to say that it follows logically. There is a need for a proportion. If one is bringing an action on behalf of 2,000 people, one can reach a lot further and be more wholesale than if it involves just one individual, although if one is pinpointing the same problem for the 2,000 that the individual pinpointed, there might not be a need for anything bigger. Obviously, we ought to make that point in any consultation document so that people
Finally, the problem of recommending an outcome is that it might not be within the businesss power to guarantee achieving it, so that would be unfair. Another point is that by the time an employee gets to a tribunal with an employer, quite often the relationship has broken down and the employee has gone, so a recommendation confined to that employee has no effect at all. That is why it is better to have available the power to make recommendations.
John Penrose: That was a clear and straightforward response from the Minister. She fully answered all the questions and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 118 ordered to stand part of the Bill.
Clauses 119 to 122 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Harper: Again, I hope to be brief. My question is simple. The clause makes it clear that if someone wishes to bring a claim for breach of an equality clause or rule, they must normally do so within six months of the end of their employment contract. Members of the armed forces have an additional three months in which to bring a claim, as they must first make a complaint under service complaints procedures. Is there any scope for that time limit to be changed if the service complaints procedure takes more than three months? The next clause, which is supplementary to this, allows that to happen for cases defined as non-standard.
I am sure that in the example of the armed forces, the delay would not be deliberate, but if the service complaints procedure took a long timeif, for example, witnesses or other people needed to participate in the process were on active duty on the front linethat might disadvantage the complainant. Will the tribunal or somebody else have the power either to extend the time limit or to decide that the case is non-standard under clause 124, so that the individual will not be disadvantaged and an unreasonable burden to accelerate the process will not be placed on the armed forces? That might not be possible or might affect the operational effectiveness of the armed forces.
The Solicitor-General: I will check whether that mechanism is available, but I suspect that one would put the application in to the tribunal anyway and agree not to action it to protect the time limit while the complaints process was under way. That often happens anyway in court cases where a time limit must be met: one does not take any further steps, but just fulfils the time limit. However, I will see in a moment whether I can get a better answer to the hon. Gentlemans precise questions.
Question put and agreed to.
Clause 123 accordingly ordered to stand part of the Bill.
Clauses 124 to 129 ordered to stand part of the Bill.
Burden of proof
The Solicitor-General: I beg to move amendment 81, in clause 130, page 95, line 27, after offence, insert under this Act.
This amendment would remove an inconsistency between Clause 107(7)(a) and Clause 130(5).
The amendment is just to correct a minor drafting error.
Mr. Harper: I want to raise an issue about the clause, Lady Winterton, so I hope you will let me do so now. Then, I suspect, we will not need to debate clause stand part. The clause sets it out that, under current legislation, in most cases the burden of proof is reversed once the claimant has established a case to an initial level. However, the explanatory notes say that
the burden of proof is currently not reversed in race discrimination claims brought on grounds of colour and nationality; claims of victimisation which relate to race discrimination; non-work disability discrimination claims; and sex discrimination claims which relate to the exercise of public functions. In these areas the burden of proof will now be reversed once the claimant establishes his or her case to an initial level.
I suspect the Ministers answer will be brief, but why is it that under the current law the burden of proof was not reversed in those cases, and why have the Government decided to change that? It may be self-evidently right to reverse it, and perhaps there were some very good reasons why that did not happen in the past. I am curious and it would help the Committee to know about the principles.
The Solicitor-General: As far as I know, it is just a historical accident that two bits of race legislation, which were added later, followed the relevant way forward and earlier bits did not. I think that is correct. If there is more to say, I shall write to the hon. Gentleman and he can read it.
Amendment 81 agreed to.
Clause 130, as amended, ordered to stand part of the Bill.
Clauses 131 to 137 ordered to stand part of the Bill.
The Solicitor-General: I beg to move amendment 82, in clause 138, page 100, line 16, after of, insert or made under.
This amendment would expand the scope of Clause 138(1) to render unenforceable a contractual term which purports to exclude or limit a provision made under the Bill in addition to a provision of the Bill itself. The amendment would complement the provisions already in the Bill.
The Solicitor-General: I shall explain the amendment, which is slightly more substantial than the other amendments I have spoken to.
Clause 138 makes unenforceable the terms of any contract or non-contractual agreement that denies the individual the protection set out in the Bill. The amendments will make unenforceable contracts that deny individuals the rights given to them in secondary legislation under the Bill. They tidy matters up and make them more rational. I hope that is clear.
Amendment 82 agreed to.
Amendment made: 83, in clause 138, page 100, line 19, after of, insert or made under. (The Solicitor-General.)
This amendment would expand the scope of Clause 138(2) to render unenforceable a relevant non-contractual term which purports to exclude or limit a provision made under the Bill in addition to a provision of the Bill itself. The amendment would complement the provisions already in the Bill.
Clause 138, as amended, ordered to stand part of the Bill.
Clauses 139 to 142 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned.(Lyn Brown.)
Adjourned till Tuesday 30 June at half-past Ten oclock.
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