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Lord Renton: I wonder if it has occurred to the noble Baroness that the amendments she proposes are contrary to the interests of disabled people. I deal first with Amendment No. 29 which puts the burden of proof on the disabled person to satisfy what is described as
I refer to Amendments Nos. 30 to 32. Those amendments could not be made to the Bill if Amendment No. 29 were to be accepted. I am glad to see that the noble Baroness agrees with me. Those amendments are alternative to Amendment No. 29. I believe that those amendments give the employer better reasons than they give to the disabled person. Referring to Amendment No. 33, quite frankly it is unnecessary and adds nothing to the meaning or effect of the subsection to which it relates. Therefore, I would be astonished if the Government felt able to support any of these amendments.
Baroness Lockwood: The amendments may not be well drafted. I will not argue about that. But the principle behind the amendments is an important one. I should have thought that they would be acceptable to the Government. The Government said in their consultation document that appointments should be made on the basis of the merits of the person to do the job. The principles that my noble friend has elaborated are precisely those; in other words, the person who applies for the job, whether or not he is disabled, should have the necessary qualifications to do it. Maybe the wording of Amendment No. 29 is unfortunate in that it seems to place a responsibility on the applicant, but surely all applicants for a job have to set out their qualifications to do the job. It is on that basis that they would be appointed. Their disability would be taken into account only if it meant that they could not perform the functions of the particular job.
Lord Inglewood: I am grateful to the noble Baroness, Lady Turner, for introducing this large number of amendments in a generalised manner. They all relate to the same point. I hope that the Committee will agree that the appropriate way to respond is to try to deal with them on that basis. I am also grateful to my noble friend Lord Renton who has raised a number of points which I would otherwise have raised. I agree that he would be right to be astonished if the Government accepted these amendments. The Government are not inclined to do so.
The purpose of this group of amendments appears to be to restrict the conditions set out in Clause 5(4) on which less favourable treatment may be justified. It must be remembered that we start from the proposition that the Bill does not make it unlawful to treat a disabled person less favourably than someone else for reasons wholly unconnected with the disability. We all recognise that no matter who the individualdisabled or non-disabledmay be, there will be circumstances where it is entirely appropriate to treat him or her less favourably than others, for example where that individual cannot do a particular job. However, in the case of a disabled person one cannot get away from the fact that it may be the disability which, even after reasonable adjustment, makes him unable to do the job. It would be unreasonable to say that, no matter what the effects of a person's disability, the employer will not lawfully be allowed to take them into account and that if he does so, he will be treated as having discriminated against the disabled person.
Discrimination under the Bill arises only where a disabled person receives less favourable treatment for a reason related to the disability. Clause 5 is concerned with defining the limited circumstances in which employers can be justified in such treatment. I believe that it is important that the employer should be able to make the judgment as to whether an applicant is less or more "suitable" without unnecessary restrictions on the factors that he can take into account. That would be very likely to include whether the individual was unable to satisfy an important requirement or qualification or perform the essential duties of the job or was less able to do so than another applicant.
Simply relying on the concept of "important qualification or requirement" or "the ability to perform essential duties" removes much reasonable discretion from the employer. For example, it is not entirely clear what the noble Baroness has in mind in suggesting the words "important requirement". I presume that they are intended to cover factors such as specific experience. However, that is a vague term which is not defined. It risks causing uncertainty both for employers and disabled people as to what can or cannot be taken into account. There is also a risk that employers would be unable to select the best person for the job if, for example, the disabled person had the "important qualifications and requirements" in that narrow sense but was still less suitable, or even entirely unsuitable, for some other
The proposals in the Bill recognise that, where matters for which an employer is responsible place a disabled person at a substantial disadvantage because of the effects of the disability and it is reasonable for the employer to make an adjustment, he should do so. That is made clear on the face of the Bill in Clause 6(3) and might include, for example, allocating some of the disabled person's duties to another person if that is reasonable for the employer in all the circumstances.
I agree with the noble Baroness that the issue of the performance of unimportant or non-essential duties needs to be addressed. However, the provision to do so already exists in the Bill. An employer has a duty to make reasonable adjustment. If an employee cannot perform certain duties and they are unimportant or non-essential duties, it may well be reasonable not to require him (or her) to do them and they can be reassigned, or in some cases dropped altogether, in line with a reasonable adjustment provision.
However, there may be cases in which it would not be reasonable in all the circumstances for an employer to reallocate even relatively minor non-essential duties. Generally, somebody has to carry out those duties. They do not become irrelevant because an employer is going to employ a disabled person. In those situations it is important that we allow employers the scope to make the decisions which best meet their business needs. It is not an unfettered scope. An employer will need to bear in mind that he may be called upon to satisfy an industrial tribunal that his decision was reasonable in all the circumstances.
In today's competitive environment, we should not in any way restrict employers in recruiting the most suitable person for the job, after taking account of any reasonable adjustment. It is important for the employer and the individual that there is no compulsion on employers to employ unsuitable or less suitable disabled people. To suggest otherwise would be unreasonable. I am sure that disabled people genuinely do not want jobs that they cannot do. This Chamber does not want to force employers to employ people who cannot do their jobs or who cannot do their jobs as well as others, even when all reasonable steps have been taken to minimise the effect of any disability. Disabled people want a level playing field. That is what the Bill seeks to achieve.
We should not restrict employers in making decisions which only they can make in any particular situation. Employers must be free to choose the most suitable person for the job, while making any adjustments that are reasonable. There is sufficient scope in the Bill to allow disabled people to challenge employers if they believe that they have been unjustifiably discriminated against. I ask the Committee to reject the amendments on those simple grounds.
Baroness Turner of Camden: I spoke to this group of amendments in a generalised way because I felt that they covered much the same ground. As I indicated to the noble Lord, Lord Renton, they were in fact alternatives.
We agree absolutely with the Minister that we want people to be appointed for work that they can do. There is no point at all in trying to force disabled people into jobs that they are simply unable to do. I say again to the noble Lord, Lord Renton, who thought that my amendment was not to the advantage of disabled people, that the reason why I tabled these amendments was because I was advised to do so by organisations which have a great deal of experience of looking after disabled people, like RADAR and the RNIB. I am sure that they know what they are talking about when they say that disabled people are concerned about provisions in the Bill which would give the impression that maybe the employer could make subjective and uninformed decisions about their ability to do the job for which they applied.
It is not my intention at this late hour to press the issue to a vote, but this is an important question. We may very well return to it at Report stage when we see what the Minister has to say. I hate the term
Lord Renton: I am grateful to the noble Baroness for giving way. We must remove the misunderstanding which is in her mind as regards the burden of proof. In the opening words of Clause 5 which we are now discussing, the noble Baroness will see,
There is no doubt whatever that the burden of proof in these circumstances would have to be on the employer. The noble Baroness's amendment shifts that burden to the disabled person.
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