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 through—it 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 everyone’s 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. 1.15
pm
John
Penrose: I take the Minister’s 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
understand that a possible consequence of representative actions is that
recommendations reach further or go wider. I hope the hon. Gentleman is
satisfied. Finally,
the problem of recommending an outcome is that it might not be within
the business’s 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.
Clause
123Time
limits 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
time—if, for example, witnesses or other people needed to
participate in the process were on active duty on the front
line—that 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.
Gentleman’s 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.
Clause
130Burden
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 Minister’s 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.
Clause
138Contracting
out
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
Chairman: With this it will be convenient to discuss
Government amendment
83.
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.) 1.29
pm Adjourned
till Tuesday 30 June at half-past Ten
o’clock.
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