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The Solicitor-General: The Committee heard compelling evidence from disability organisations that disabled people are being discriminated against by having their initial applications rejected by some employers once those employers are aware of a person's disability. It also heard that the widespread use of pre-employment inquiries can act as a deterrent to some disabled people making applications for work. The Royal Association for Disability and Rehabilitation, for instance, told us that restricting the use of pre-employment inquiries
"is probably the single biggest difference and improvement that could be made through the Equality Bill in relation to the employment of disabled people."
In the light of that evidence, we are convinced of the need to legislate to deter employers from asking health-related questions and using the information gained for discriminatory purposes. Through the new clause we are providing for unscrupulous employers to be brought to account if they ask questions about health and disability-for reasons not provided for in the new clause-and thereafter reject, or fail to consider, candidates for work because of a declared disability. Where an employer fails to progress a person's application after having asked a question that does not fall within the situations specified and allowed, and the person subsequently makes a claim to an employment tribunal for direct discrimination, the burden of proof will shift to the employer to show that he or she has not discriminated against the applicant because of the disability. If the employer cannot do so, they will be found to have directly discriminated and there are then issues of compensation. To ask the question and to rely on the information so as not to select the disabled candidate is unlawful. The provision will strengthen the burden of proof in favour of the disabled person, so that the tribunal must require the employer to show that it has not discriminated. Together with the guidance that we will issue, it will make it very clear to employers that they should not ask health-related questions unless they can show that they are for one of the specified purposes.
Philip Davies (Shipley) (Con): The Solicitor-General talks about how she is strengthening the burden of proof, but as an eminent lawyer herself, when did she decide that the principle of being innocent until proven guilty should no longer apply in British law?
The Solicitor-General: I am really grateful to be called an eminent lawyer by one so knowledgeable as the hon. Gentleman, but he is talking about the criminal law, not the civil law, in which burdens of proof shift to fulfil policy obligations. I hope that I have made that clear, but I say again that to ask health-related questions and rely on the information given to not select a disabled candidate will be unlawful.
Some Opposition Members would have preferred a provision that prohibited health and disability-related inquiries until the point that a job offer was made, but as we have developed the provision, we have had to take account of a range of recruitment processes. There are situations in which the ability to ask health and disability-related questions is essential during the recruitment process. For example, for some jobs with genuine health and fitness requirements, the candidate has to undergo a fitness assessment before a job offer is made. To delay that assessment until the point of the job offer would unduly delay and disrupt established recruitment processes. That is a fairly clear position.
The new clause strikes the right balance between protecting disabled people from prejudicial discrimination and permitting employers to seek information about health and disability, but only where it is appropriate to do so. It sets out that they will be able to ask health and disability-related questions at the application stage in four specific circumstances, without taking what I will call the "tribunal risk". First, an employer may make inquiries to identify any requirement for reasonable adjustments to the recruitment process. That is essential, as the duty to make such adjustments is fundamental to opening up opportunities for disabled people to gain employment. How can they be made if nobody knows that they are needed?
Secondly, an employer can make inquiries for the purpose of monitoring diversity in the range of people making job applications. We were told by stakeholders that that monitoring is important to encourage diversity and improve job prospects for disabled people. Thirdly, the new clause provides for inquiries that facilitate the delivery of positive action for disabled people. We all agreed in Committee that that is an important tool in improving work opportunities for disabled people.
Finally, an employer will be able to make inquiries where there is a genuine occupational requirement for the job on offer to be filled by a disabled person or a person with a particular disability. In such cases, it will be important for the employer to be able to identify candidates with the required disability at an early stage. In addition, the new clause provides for an exception for health-related questions asked for the purpose of national security vetting.
In other cases, an employer will reduce the risk of a penalty if health-related inquiries are delayed until after the applicant has passed some form of assessment or interview based on non-health criteria. If there is no form of assessment, the employer will be able to make health-related inquiries when they have decided to make a job offer. The aim is to prevent a disabled person from being screened out solely on the basis of their disability without first being given the opportunity to show that they have the skills and competences for the job on offer. That will address one of the key concerns of disability organisations-that disabled people are being screened out without ever getting to the interview or
selection stage. We will do all that we can to ensure that the new provision is well known, so that it can overcome the deterrent effect that health-related inquiries made at the initial application stage can have on disabled people's willingness to apply for work. At the same time, it will promote opportunities for disabled people in the labour market by facilitating positive action and recruitment where there is a genuine occupational requirement.
The new clause will be an appropriate deterrent to employers using the inquiries in question to gain information for discriminatory purposes, and it will ensure that employment opportunities are promoted, for example though reasonable adjustments. I seek the approval of the House for the new clause.
John Penrose (Weston-super-Mare) (Con): We welcome the intention behind Government new clause 40. It is fair to say that the Government have responded-or certainly they have attempted to respond-constructively to concerns that were raised in Committee. A number of Members on both sides of the Committee called for action, so there is a fair degree of emerging consensus on both sides of the House on this important issue, and the various parties are at least on strongly converging tracks, which is always to be welcomed.
The Minister's outline of the new clause was tremendously helpful, but she may have a little further to travel, because the measure has been greeted with a fair degree of confusion, concern and worry by some groups outside this place. They say that it is fairly complicated and that it seems to involve an awful lot of requirements for people to take things to tribunals, and they are not quite sure whether it will genuinely do the job that it is intended to do.
"THT is very disappointed with New Clause 40, and the impact it would have is minimal in relation to the US-style ban on irrelevant pre-employment health-related questions that we've been calling for."
It may be that some of concerns of the Terrence Higgins Trust will be allayed by the Minister's explanation of some of the Government's thinking behind the way they have put the new clause together, but I suggest that she has a fair way to go to speak to one or two organisations. Will she lay out some of the evidence and some of the more detailed work that she and her team have clearly been doing since Committee?
The Solicitor-General: Clearly, I am very happy to confirm that we will do all we can to ensure that the reassurance the hon. Gentleman seeks is given. As I have set the clause out, it has strength in it. The difficulty about a measure that merely declares something to be unlawful is that it does not actually have a great deal of strength, but we make very clear what the consequences of behaving in a certain way are. Obviously, the idea is not that people will have to go to the tribunal, but that employers will be well apprised of the consequences of breaking the law.
I thank the Minister for her constructive response and her willingness to provide and publish any evidence and so forth that she and her team have been
gathering. I am sure that that will go a long way to reassuring organisations such as the Terrence Higgins Trust and Rethink. The latter
"expressed its disappointment...following the government's decision not to introduce a clause in the Equality Bill to stop employers asking job applicants about their medical history before deciding whether to invite them for interview."
It sounds as though those are merely technical differences. I think we are agreed on the principle, which is worth restating briefly for the record. The principle is this: there is a large body of evidence that shows that if employers ask for details of health background before interview or before a job application decision is made, there is more opportunity-let me put it no more strongly than that-for discrimination of various kinds, including, most severely, direct discrimination.
If we delay that process and say that employers may ask for details of health background only after they have decided to offer someone the job-at that point, the question becomes, "What special and reasonable adjustments may be required by someone who has a disability to allow them to do the job that they have been offered?"-the chance of disability-related discrimination is significantly reduced.
Having made those points, we welcome the Government's intention and look forward to them publishing the technical background to their work on the matter. We want to keep our powder dry as to whether that means debating the matter again at some later stage, but all being well, we are at least making steady progress in the right direction, and we salute the Government's approach.
I also wish to speak to two other groups of Conservative proposals which are in my name and that of my hon. Friend the Member for Forest of Dean-one is on positive action and the other on gender pay reporting. Our proposal on positive action seems rather technical and seeks to draw a distinction between someone who is "equally qualified" as opposed to someone who is "as qualified". That is a very small word difference, but it is profound in terms of the thinking behind it and the implications that it might have. The whole point of positive action-I think that this is widely agreed on both sides of the House-is that it is an important aid to people who would otherwise find it difficult to apply successfully for jobs and positions in all sorts of different professions and sectors of the economy, but which, importantly, stops short of positive discrimination. There is a world of difference between the two and it is an important distinction to make. Positive action, to summarise it in layman's terms, involves providing as much assistance as reasonably possible-holding someone's hand in as many different ways as possible-in all the steps that lead up to and during the interview process for a new position. It deliberately stops short of allowing the employer making the job offer to select someone who is less well qualified simply because they have the protected characteristics in the Bill. In other words, it allows helping someone to prepare and to put themselves across in the best possible way when applying for a job, but the eventual decision on who gets that job must be purely meritocratic and based on the principle of appointing the person best qualified for the job.
In Committee, there was a debate about that principle. At the start of the process, it appeared that that principle-and the distinction between positive action and positive
discrimination-had been bulwarked and preserved by the use of the words "equally qualified". If two people are equally qualified for a job-what we might call a "tiebreak situation"-an employer may choose someone with a protected characteristic, say from a particular racial group or of a particular sexual orientation, in preference to someone who has not such a characteristic. The important point is that the two candidates are equally qualified. That would not, of course, breach the crucial distinction between positive action and positive discrimination. However, in Committee, we had a concerned and detailed debate about the Government's rephrasing of that provision, so that instead of being "equally qualified", it reads "as qualified". That is important because we are worried that "as qualified" might mean that of two candidates who are both adequately qualified-they both clear a minimum threshold as defined by the employer as required for the job in question-the candidate who is best qualified and well above the minimum threshold, but does not have any of the protected characteristics, may not get the job because the employer would be within their rights to give it to someone who is less well qualified but had cleared the hurdle and possessed a protected characteristic. That would breach the important distinction between positive action-giving people a hand in their preparation-and positive discrimination, which is allowing the decision on who is offered a job to be made on any grounds other than merit.
We are not the only people to be worried about the distinction. The Equality and Human Rights Commission, in its supporting documentation, has also expressed concern. In its Equality Bill report stage briefing, issued on 2 November, it said:
"Positive action would allow employers choosing between two equally qualified candidates to select the successful candidate on the grounds that they are from an under-represented or disadvantaged group."
I am interested to note that the EHRC is supporting the principle of "equally qualified" and using that phrase in its briefing document, rather than "as qualified", although I am sure that it is not the only organisation that supports the principle of "equally qualified" and that that support is shared on both sides of the House. The Equality and Diversity Forum, in its briefing on the Report stage of the Bill, says:
"The proposed provision does not permit recruitment or promotion only because a person has a protected characteristic, it only applies to candidates who are equally qualified and in a situation where a group is under-represented."
In other words, there is great consensus on the principle of "equally qualified" and applying the clause in a tiebreak situation, but I do not think that there is a consensus on the notion of allowing a candidate who is adequately qualified, but less well qualified than another candidate, to be preferred simply because they are from a minority group. That is our concern.
The Solicitor-General: I was yesterday at a seminar organised by the EHRC on positive action, and it is absolutely in agreement with the way in which the Government see this issue. I can assure the hon. Gentleman of that because the chairman introduced me and said so, I went on to speak and he was on the panel with me afterwards, and a cigarette paper could not have fitted between our views.
I thank the Minister for that clarification. My concern is that in its written documentation, the
EHRC talks about "equally qualified". In Committee, the Minister said that the wording "as qualified" was effectively the same thing, but given the concerns that are being voiced by my party and many others about this-and the importance of the principle that is being addressed-and if there is no difference between the phrases, why will she not use the one that everyone else is using? I ask her to address that point if she can, and we reserve the right to press that amendment to a Division, depending on her response.
We had an extensive debate on gender pay, and the Government's proposals to introduce a requirement for gender pay reporting, in Committee. There are other provisions on gender pay in the Bill which had wide support, notably the one that would make it illegal for employers to prevent work colleagues from comparing and discussing their pay so that they can see whether, for example, women are being paid less than men for an equivalent role. However, the clause on gender pay reporting was not so unanimously supported. There was a wide consensus about the importance of the issue and the need to sort it out. The gender pay gap is one of the most pernicious, longstanding, significant and unjustifiable examples of workplace inequality in this country, and it is caused by many facets of our society, not least direct discrimination. Rightly, there was consensus on both sides of the Committee when this issue was discussed that it must be addressed and cannot be taken for granted, even though, ever since the original equal pay legislation back in the 1970s, we have seen a steady-I would not say rapid, because it has been stately and slow-and inexorable reduction in the gender pay gap. In Committee, we discussed whether that steady reduction-and it has fallen quite a long way in the last 30 years-was running out of steam and losing momentum, so that additional measures were necessary. I am happy to say that since the Committee stage, new statistics have been published that show that the gender pay gap has continued to fall. It has not fallen by much, but it continues its slow and stately reduction. I am sure that we all want it to fall faster, and we certainly need to go further, but it is an issue on which our society has made great progress over an extended period.
Ms Katy Clark (North Ayrshire and Arran) (Lab): Does the hon. Gentleman accept that our progress has been poor compared with many of our neighbours, who have made significant improvements in the gender pay gap, and that Britain is falling behind? Given that we had legislation on that in 1970, it is an outrage that we are still talking about pay gaps in the region of 22 per cent.
John Penrose: I am happy to accept the point behind the hon. Lady's remarks, which is that we absolutely have to go further and that there is no cause for complacency. It is worth while saying that what we have has been working-albeit too slowly-but we need to continue pushing on. It would be a courageous person who claimed that Britain is all marvellous. She is right to point out that we have further to go.
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