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Baroness Trumpington: I beg to move that the House do now adjourn during pleasure until 8.50 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.21 to 8.50 p.m.]

Disability Discrimination Bill

House again in Committee.

Clause 4 [Meaning of "discrimination"]:

Lord Wise had given notice of his intention to move Amendment No. 26:

Page 3, line 16, at end insert:
("( ) For the purposes of this Part, references to an employer who discriminates against a disabled person shall include references to an employer who—
(a) treats a person who has a physical or mental impairment that does not have a substantial and long term adverse effect on his ability to carry out normal day to day activities, as having a substantial and long term adverse effect on his ability to carry out normal day to day activities; and
(b) treats a person who does not have a physical or mental impairment as having a physical or mental impairment that has a substantial and long term adverse effect on his ability to carry out normal day to day activities.").

The noble Lord said: It is unfortunate that this amendment was not grouped with the first amendment of the noble Baroness, Lady Hollis. I could not contact her this morning to discuss it. I was unsure whether or not I could speak to it as it had not been grouped. However, both the noble Baroness, Lady Hollis, and the noble Baroness, Lady Farrington, have raised issues on this amendment which primarily seeks to ensure that a further group of disabled people are protected by the measures in the Bill. At this late hour I do not wish to reiterate many of the arguments that have been put forward. I am sure

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that it will be a great pleasure to your Lordships to hear that I do not intend to move the amendment; rather I will read very carefully what has been said and perhaps come back to it at a later stage.

[Amendment No. 26 not moved.]

On Question, Clause 4 agreed to.

Clause 5 [Circumstances in which less favourable treatment is justified]:

Baroness Hollis of Heigham moved Amendment No. 27:

Page 3, line 19, leave out from ("if") to end of line 23 and insert ("he shows that one or more of the conditions mentioned in subsection (4) below are satisfied.").

The noble Baroness said: I am sure that your Lordships are waiting in anticipation to see whether I will follow the eloquent path so swiftly followed by the noble Lord, Lord Wise. Alas, I feel that we must visit—your Lordships may say revisit—this issue. This is an amendment about the test of reasonableness. The amendment is concerned about whether, when and under what circumstances it is legal to discriminate against someone with a disability.

We all accept that there will be occasions when it is legitimate for an employer to discriminate against a disabled person. Those circumstances are set out in Clause 5(4). The conditions are: that the disabled person is unsuitable for employment; that the disabled person is less suitable for the employment than another person and that other person is given the employment; that the nature of the person's disability significantly impedes the performance of his duties; or that, in the case of training, the nature of the disabled person's disability will significantly reduce the value of the training either to him or to the employer. Regulations also allow for additional circumstances to be prescribed.

It is regrettable but we all accept that no one sensibly presses that blind people should become van drivers or, perhaps more controversially, that someone with a history of recurring violent schizophrenia should become a teacher of special needs children. We do not ask for positive discrimination but equal rights. A disabled person should not be disqualified by virtue of a disability that is not substantially relevant to the job to be performed. It is important for the Government to understand that under the amendment it will still be open to the employer, as under the race and sex legislation, to choose the best person for the job, so long as in his judgment the employer is not improperly influenced by conditions of the disability, as with race or gender, when these are not relevant to the job under consideration.

So far so good. However, the employer is allowed to discriminate, not if one of the four conditions is objectively met, but if in his opinion one of those conditions is met. If it is not unreasonable for him to hold that opinion, even though he may be wrong to do so, he is allowed to discriminate; in other words, those four conditions are not a test of whether or not he may discriminate but a test of whether or not he considers that he may discriminate. It is not a test of the disabled person's suitability but a test of the employer's state of mind.

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I am sorry that the noble Lord, Lord Renton, is not here. We sparred on this issue a little earlier. What we have here is not a relatively objective test as to whether or not the disabled person can do the job, but a subjective test—the very thing that the Government went to great lengths to deplore on the first amendment—of whether or not the employer can hold such an opinion. Even though most people may not hold that opinion, it may still be within the realm of reasonableness. A disabled person's rights to fair treatment have been transmogrified into the employer's right to hold an opinion.

We are very uneasy about this. It would be very difficult for any disabled person to demonstrate to any tribunal that it was beyond the realms of reasonableness for the employer to hold the view that he did, even if the employer objectively was empirically wrong to do so. It is relatively straightforward for a tribunal to judge as an empirical matter whether or not the employer's behaviour is reasonable. What our amendment seeks to do is precisely that. It is much harder to do that if we leave the Bill unamended, because then the test is whether or not it is reasonable for the employer to hold the opinion that he holds. That is an inquiry into the state of mind of the employer—the very grounds on which the Government rejected the very first amendment today. As the Bill stands, one is asking industrial tribunals to adjudicate not on behaviour but on opinions, which is to follow a slippery slope.

In the brief that RADAR was kind enough to provide to me reference was made to the case of Hampson v. DES heard in 1989 in the Court of Appeal. That set out the ground rules for sex and race legislation. In that judgment, Lord Justice Balcombe said:

    "It is not sufficient for the employer to establish that he considered his reasons adequate".

Quite so. However, under this Bill without the amendment it will be. I suggest that disabled people are as much entitled to protection in law as is provided for under sex and race legislation. Without the amendment, if the employer thinks his reasons are adequate they will not be so protected. I beg to move.

Lord Addington: The noble Baroness has moved one of the more important amendments that we are to discuss today. If we refer just to opinion we are not even talking about informed opinion. We are referring to prejudice and to somebody who in effect does not know what he is talking about. If this is to be taken into account, we may as well not have large chunks of this Bill, for the simple reason that someone can make a judgment without knowing anything about the matter and just proceed on. If the Government are not prepared to accept this amendment, or something very like it, they will do damage to many of the good points in the Bill.

The Government always tell us that economics dominate everything. The opinion of an employer affects the way that many disabled people perceive their worth in society.

Unless the Government are prepared to accept an amendment along these lines, they are effectively wasting a good deal of their time and ours in putting this Bill on the statute book.

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Lord Inglewood: Following the exchange of views between my noble friend Lord Renton and the noble Baroness, Lady Hollis, earlier today, it will come as no surprise if this particular amendment is not withdrawn.

Clause 5 deals with cases in which it is justifiable for an employer to treat a disabled person less favourably. To make a small point—some people might say that it is a pedantic point—the definition of discrimination is to treat a disabled person less favourably without justification. It is not in fact the case that, if actions fall within the scope of Clause 5 of the Bill, that, strictly speaking, can be described as discriminatory. In Clause 5(1) it is necessary that, in the employer's opinion, one or more of the conditions in subsection (4) are satisfied and that it is reasonable in all the circumstances of the case for him to hold that opinion.

A number of points have been raised in relation to that matter. I should like to spend a moment making one or two comments on them. First, it is not in fact the case that the proposition that something is reasonable is not the same as the proposition that something is not unreasonable. Secondly, reference was made to the fact that employers might be able to do something "even though most people do not hold the opinion". The fact that most people do or do not hold a particular opinion has very little bearing in this regard. Finally, we have had some discussion about inquiries into states of mind. It was not made clear whose state of mind was involved. Reference was made to the judgment of Lord Justice Balcombe.

The key words in the Bill as drafted are:

    "it is reasonable, in all the circumstances of the case, for him to hold that opinion".

The test of reasonableness here is an objective test. The judgment is not made exclusively from the perspective of any one person. If the matter goes to a tribunal and ultimately to the court, the assessment is made by the person sitting in judgment on whether it is reasonable for an employer in those particular circumstances to have acted in the manner that has been alleged. It is important that we are clear about that. It is not simply a subjective approach to the problem. It is an objective approach, bringing in a test of reasonableness which is a very well recognised test in English law.

The effect of the amendment is to ignore the fact that an employer is entitled to have legitimate opinions about whom he employs. It would make the conditions in subsection (4) become purely factual tests. It wholly ignores the important questions of judgment involved. To my knowledge there is not any wholly factual test of suitability for a particular job. It is certainly not a question of whether someone can do the main functions of a job. Suitability goes wider than that. Several applicants might meet such a test, but the employer still has to choose from them which is the most suitable. That must be a matter for the employer's judgment. This amendment removes the judgment from the employer and gives it to an industrial tribunal. A tribunal would have to decide whether applicant A, for example, was less suitable for the employment than applicant B.

The amendment also takes no account of the facts known to the employer at the time—if a disabled person performs badly at an interview (after any reasonable

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adjustment of course), under these amendments there would still be the "factual" question of whether he (or she) was "really" the most suitable candidate after all—which could be aired all over again before the tribunal. That would be quite wrong.

It is not a matter for a tribunal to make decisions of that sort. It is for the tribunal to decide whether it was reasonable in all the circumstances for an employer to believe that the individual was unsuitable. That is right. After all, we are dealing with the question of whether there was discrimination. We are not asking the tribunal to decide who was the most suitable candidate.

We must all recognise that it is important to create a proper balance between the concerns of disabled people and the legitimate interests of employers to make decisions in the best interests of their business. We shall certainly listen very carefully to the points that are made on this clause. But I cannot accept the suggestion contained in the amendment that tribunals are to pay no regard to the many legitimate issues of judgment faced by employers. There is ample protection for disabled people in the requirement that the employer's opinion must be reasonably held. I hope that that has given some reassurance to the noble Baroness.

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