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Baroness Farrington of Ribbleton: I wonder whether the Minister can be pressed a little further on comparisons with cases which are taken before tribunals on grounds of sex discrimination. It is my experience that the issue that is considered is the issue of the most suitable person to have been appointed to the job. Ultimately, the criteria necessary for consideration as a candidate have to be met by people who are put on a short list. But then further desirable or advantageous qualities which the individual candidates possess and bring to the job, which are not necessary but desirable, are considered in detail by a tribunal. A comparison is made particularly between those qualities which are the desirable qualities for the person making the appointment. Those are then assessed and it is necessary for the employer to demonstrate that there was justifiable choice between the candidate who got the job and the candidate who was unsuccessful.

I cannot see why a different line is being taken in the light of the response that has just been given on behalf of the Government when the issue is one of disability discrimination. Surely the case that needs to be put by the employer needs to be equally strong when the discrimination is on grounds of disability as, for example, when the discrimination occurred on grounds of sex.

Lord Inglewood: I hope that I can be helpful to the noble Baroness. She has raised a question which is of great significance. The starting point of the Bill has been made clear on a number of occasions. We do not consider that the way to deal with discrimination in regard to disability is the same way in which one deals with problems of sex or race. I said that as a back-drop to my further remarks.

So far as concerns this particular Bill, we are concerned to ensure that there is no discrimination against disabled people on the basis of their disability, if I may so shortly describe it. Therefore, it does not follow that if someone

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does not get the job there has been discrimination; neither does the inverse proposition apply, which is that there can only be no discrimination if that person does get the job.

Perhaps I may explain how the process works. It is necessary for an employer to assess the merits of the candidates, however many there may be, as they are. Having assessed those merits, it is then necessary for the employer to "add on" reasonable adjustment. We may come later to arguing exactly what that means, but here we are looking at the concept.

One then adds on, by virtue of the reasonable adjustment provisions, advantages to particular employees who may be disabled. Once one has done that, one has to compare the candidates against each other in the ordinary way, if there were no disability issues present at all. I hope that that describes how these particular procedures would work. That is the basis on which any tribunal, were one to be ultimately involved in the matter, would approach the problem.

Baroness Farrington of Ribbleton: I must press this matter further. In the Minister's answer he said that comparison must be made between the candidates to assess whether discrimination had or had not occurred. Yet the proposals in the Bill do not allow the same degree of examination of that issue to the point of who was appointed and who was not, and whether the judgment on appointment was based on unfair discrimination against someone with a disability. The guidelines would not be as stringent as in a case brought on grounds of sex or race. Surely that process must be the same. I fail to see how the Government can say that they are protecting against discrimination on grounds of disability, but only partially protecting. Surely the stringency should be the same whatever the issue which is the alleged discrimination.

Lord Inglewood: The noble Baroness is obviously much more familiar with sex and race discrimination legislation than I am. I fear it is possible that I may have unwillingly and unwittingly slightly misled her. As regards these provisions, and as far as the test of whether or not discrimination has taken place in the context of an individual, it does not matter about the other people who might be interested in the particular job. Let us assume that we are talking about a job because it makes a description easier.

The issue relates to the individual concerned. If he or she is a disabled person as defined, there is a duty on the potential employer to follow the process of reasonable adjustment. That will vary from individual to individual depending on the nature of their particular disability. The general measure is described in Clause 6. Once that has occurred it is for the potential employer to determine whether or not the particular person fits the case. What the potential employer cannot do is to say that a particular individual is unsuitable because of certain aspects of his or her disability where reasonable adjustment would have ceased to be a problem for him. That is the way in which we approach it. If at a later stage some criticism is made of an employer and the matter goes to a tribunal, the argument will relate to that particular issue. As regards any one individual, the characteristics of anyone else who may have applied for the job will not be directly relevant.

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Baroness Hollis of Heigham: That was a very helpful exchange. From what the Minister has said it seems to me that the problem is worse than I had assumed. The Minister seems to be saying, in response to my noble friend, that what the employer can do is to say that X is unsuitable because "reasonable cost" would not make him suitable even though the employer was misinformed because "reasonable cost" would have made him suitable.

If I understand the Minister correctly—we all accept that judgment is involved, and I do not believe that anyone challenges that—he has given any employer carte blanche to parade his prejudice and call it his judgment. I do not see how we can protect, as I am sure we wish to do, disabled people under this Bill in this way.

The Minister referred to the tribunal and said that it would decide not whether a person was the best candidate, but whether discrimination had occurred. As I am reminded, reasonableness is not simply a matter to be determined by a tribunal acting as an industrial jury. The phrase is that it is a "legal term of art" for which there is binding authority in unfair dismissal law requiring an interpretation allowing an extremely wide range of discretion to the employer. "Reasonable" is understood by industrial tribunals to mean something within a band of reasonableness. Only if that action is outside that band of reasonableness can it be characterised as not reasonable.

The noble and learned Lord, Lord Denning, in the case of British Leyland v. Swift (1981) said:

    "The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view; another quite reasonably take a different view".

In other words, an employer's opinion can be said not to be reasonable only if no reasonable employer would have held that opinion. That is the problem we are up against. We have gone down the slippery slope into a subjective assessment of whether all reasonable employers would have acted in that way, and, if even one did, it would be acceptable under the Bill as framed.

We are dealing with what is in the employer's head, which is a subjective test. That is what we are asking that the rights of disabled people should depend upon. Having received some extra paper, I do not know whether the Minister wishes to comment. It would be helpful. It is important to push the Minister further to see what is his thinking before deciding what we do about the amendment, perhaps on Report.

9.15 p.m.

Lord Inglewood: The noble Baroness is trying to push me as far as she can. I fully understand that that is the name of the game. The first point the noble Baroness made was about an employer parading his prejudice. If an employer paraded his prejudice, however wide the bands of reasonableness might be, he would have left those bands behind him.

I return to one of the key features of the way in which the Bill has been drafted. It was a point to which I alluded in my earlier remarks. In simple terms it is that the tribunal

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will not usurp the employer's role. I tried to make that clear in my earlier remarks. The employer operates within a degree of flexibility. I concur with the comments of the noble and learned Lord, Lord Denning, in this context. They struck me as being helpful. They underpin the case that the Government are making. Individual employers, be they businessmen or whatever, will operate within a band which, according to their particular circumstances and approach, they will wish to adopt in conducting the affairs with which they are dealing. That is called judgment. It is called discretion.

Beyond certain limits, one enters territory which any ordinary person, be he a member of a tribunal, a High Court judge, or any other sensible person, would clearly say is unreasonable. What we believe is appropriate in the context of this Bill is, on the one hand, to help disabled people by ensuring that their disability is not held against them in a discriminatory manner, while at the same time ensuring that those people who are responsible for running the business, those people who are employing people, can still exercise that discretion which any reasonable judge of what they were doing would allow them to do. That is the crucial point which is at the core of the Government's approach. I hope that I have described it clearly and in a way which, if not accepted by the Benches opposite, is at least understood.

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