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Baroness Hollis of Heigham: We shall come back later to amendments on reasonableness but at the moment, as the Bill stands, the burden of proof is on the disabled person. He needs to show that the reason for being rejected as regards an application for a job, promotion or whatever is disability. That is always difficult for a disabled person to do. If this amendment is not in place then for many it will be impossible.

I suppose the difference between these Benches and noble Lords opposite is that we are concerned with discrimination. Discrimination is what happens at the interface between a person's impairment and the response of another person, in this case the employer, to it. Clearly if the disability is, so to speak, objective, then this Bill, which has substantial long-term effects—whatever the employer's response, unless it is a reasonable one—will provide protection. However, if that person's disability is not empirically observable but nonetheless the employer behaves as though it exists, the person being discriminated against has no remedy. That is our problem.

We are therefore trying to pick up the points made by the Minister. We are not seeking to say that this is a general anti-discrimination Bill. We are trying to outlaw disability as a consideration where it is not relevant. Disability may be a consideration but we believe it is not relevant, not just where that disability is as defined by the Bill but where it is a perception; and that perception of a disability we believe should be as irrelevant as the Government's definition of disability. Otherwise we get into a situation in which somebody is believed to have HIV but is well, and you may discriminate against him and he will not get the job. But if he has HIV and is not well you may not discriminate against him and he may have the job. So the person who may very well be your best employee you may discriminate against, but as regards someone about whom you may have real worries, you may not. So we have this perverse situation that if you believe somebody has a disability and he does not, you can discriminate. If you believe him to have it, and he does, you may not discriminate. That is the dilemma that we face.

It is not an anti-discrimination measure. All we are trying to eradicate is disability where it is irrelevant, and it is irrelevant in a whole range of circumstances at work. The employer may bring it into play if it is in his head but not if it is a fact. That is our concern, and it has not gone away as a result of today's debate. If an employer is wrong to hold that attitude he may discriminate; if he is right to hold that attitude, he may not. Are we comfortable with that? If he is wrong, he is OK in the face of the law. If he is right in the face of the law he may not discriminate. I think we need to rethink this matter and see whether we wish to come back to it at the Report stage. In the meantime, I beg leave to withdraw the amendment. However, I believe that we have opened up a real problem for ourselves concerning those people who are discriminated against on grounds of alleged disability, against which under this Bill, unless it is amended, they will have no protection.

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Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 1 agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 3:

After Clause 1, insert the following new clause:

Past disabilities

(".—(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.
(2) Those provisions are subject to the modifications made by Schedule (Past disabilities).
(3) Any regulations or order made under this Act may include provision with respect to persons who have had a disability.
(4) In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time.
(5) The relevant time may be a time before the passing of this Act.").

The noble Lord said: I beg to move Amendment No. 3 and to speak to the other amendments which are grouped with it. Your Lordships will recall that I announced during the Second Reading debate of this Bill on the 22nd May that after very careful consideration we accepted that the Bill should confer protection against discrimination for people who have had a disability. This decision was not made lightly. We have rightly been concerned that the protection conferred by the Bill should be sharply focused on those people who are commonly accepted as being disabled, as I have just been explaining.

However, we have been prepared to listen to the arguments and to consider seriously the implications of extending the coverage of the Bill. It has become increasingly clear that people who have had a disability, although they may be no longer disabled as such, share with people who are currently disabled, a need for protection against discrimination in relation to their disability. MIND, the National Institute for Mental Health, has argued the case for people who have recovered from mental illness. Other voluntary organisations have made representations on behalf of people who have recovered from other disabilities. It is clearly a very important part of the whole process of recovery that someone who has been disabled is able not only to participate fully in employment and social activities but to feel confident in doing so.

The amendments which are now before your Lordships' Committee will help meet concerns which have been expressed. In addition, we have been persuaded that it is not always possible to tell when a person has fully recovered from a disability and when the condition is no longer likely to recur. The inclusion of people in the Bill who have had a disability removes the need for individuals, businesses, courts and tribunals to have to deal with this grey area. We therefore recognise the serious concern about discrimination against people who have had a disability but who have now recovered. Amendment No. 3 and those grouped with it are a comprehensive package which ensures that the Bill protects people who have had a past disability, in the same way as it protects people with a present disability.

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The new clause provides that Parts I, II and III of the Bill apply to a person who has had a disability in the same way as they apply to someone who is currently disabled, with modifications where appropriate. The new schedule supplies those modifications. The new clause makes clear that if a person alleges discrimination in respect of a past disability the question of whether the person has a disability will be decided by reference to the definition of disability at the time of the alleged act of discrimination. This makes clear that the Bill will cover people who have recovered before the Bill has passed and it will also ensure consistency of treatment between people who are currently disabled and those who have recovered from the same condition.

The remaining amendments ensure that the bodies set up to advise the Secretary of State, the National Disability Council, the National Advisory Council on Employment of People with Disabilities and any successor body, will represent the interests of people who have had a disability as well as those who currently have a disability. They ensure also that the code of practice to be prepared by the Secretary of State to provide practical advice for employers will cover discrimination against people who have had a disability. As I have said, the Government have listened to arguments about this. We have accepted their strength, and I hope that these amendments will be welcome to all those people who have put forward arguments in favour of covering people who have had a disability. I therefore commend the amendments to the Committee.

Baroness Hollis of Heigham: We very much welcome these amendments and we thank the Government for bringing them forward.

Baroness Gardner of Parkes: May I ask the Minister if, under this guidance, he will be able to advise employers that they should not ask people to take HIV tests as a condition of obtaining employment if they have no visible or known history of it?

Lord Mackay of Ardbrecknish: I am unable to answer that point immediately. I am not sure whether it comes within the ambit of this Bill. Employees may be asked to do tests for quite different reasons; it may be sensible, as part and parcel of the job that they are about to take on, that people are asked to take a test, not just for HIV but on other grounds. As this is a Committee stage, perhaps my noble friend will allow me to check up on her question and write to her so that I can give a proper answer.

Baroness Gardner of Parkes: I thank the Minister for that reply. I should be grateful if he will look into the matter. I am concerned about situations in which people are asked to take tests that have no relevance to their particular employment.

Lord Monkswell: It is quite interesting that the Government are now introducing an amendment which effectively states that discrimination is not allowed, even though a person is not disabled, on the grounds of attitude to disability on the part of the employer. In the earlier debate the Government argued slightly differently. They said that to have a case at all there had to be a disability. I see the Minister nodding his head. In this new clause, they

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effectively say that the disability does not have to be there; that it may have existed in the past. That is the angle that the Minister is arguing.

I suggest that it may be useful in resolving problems of discrimination in the future, as well as saying that consideration of past disability should not be acceptable, to say that consideration of future disability should also not be acceptable. The situation at which I am trying to arrive is one wherein an employer has a perception that somebody will become disabled in the future and effectively throws him or her out of the job because he does not wish to have a disabled person in his employment. That takes place before the disability occurs.

So far as I can gather from the debate that we had, it would be legitimate for an employer to get rid of an employee on the basis of the risk of future disability. His defence would be: "My ex-employee, who is taking me to the industrial tribunal on grounds of discrimination against disability, is not disabled". It is only the risk of future disability that causes the person to lose the job. I suspect that that is not the intention of the Government in carrying forward this Bill. I respectfully suggest that the Minister may want to think again about this matter. Having widened the scope of the Bill with this new amendment, perhaps the Government will consider widening its scope in a future direction as opposed to a past direction to prevent what would effectively be discrimination in employment on the basis of the risk of future disability, although the disability would not be present.

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