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Baroness Turner of Camden: My understanding is that if an individual felt himself or herself to be disadvantaged and took the case to a tribunal, then the onus of proof would be on the person who brought the case. That would be the disabled person, would it not?

Baroness Gardner of Parkes: This is a very important point which must be clearly established. It makes a very big difference at an industrial tribunal as to which side bears the onus of proof and even in terms of how the case is presented; who has to open and who has to respond. It is very important that we know the answer.

Baroness Hollis of Heigham: This is a situation where it would be helpful to have the Minister's guidance on this matter.

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Lord Renton: May I help? Most certainly, when a person takes a case to an industrial tribunal the burden at first is on the plaintiff—that is to say, the person who has made the complaint. But as soon as that person refers to Clause 5 the burden of proof shifts to the employer.

Lord Inglewood: I am very grateful for counsel's opinion!

Baroness Hollis of Heigham: But is that within the bounds of reasonableness?

Baroness Turner of Camden: I shall read Hansard with even greater interest than usual tomorrow morning. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 to 33 not moved.]

Baroness Masham of Ilton moved Amendment No. 34:

Page 3, line 39, leave out ("would") and insert ("(in the case of an applicant for employment) would at the time he took up employment").

The noble Baroness said: This is a probing amendment designed to clarify the drafting. Clause 5 deals with circumstances in which less favourable treatment of disabled people by an employer is justified. For such treatment to be justified, an employer has to be satisfied of certain conditions, one of which is that,

    "the nature of the disabled person's disability significantly impedes, or would significantly impede, the performance of any of his duties".

There are two possible interpretations of that. The first is that an employer can take a reasonable view of the capacities of an existing employee, or of an applicant for employment, in order to make a decision relating to that person at that time. That is entirely acceptable and sensible.

The other interpretation is that an employer would be justified in taking a view about the future capacities of an employee, or applicant, in order to treat him less favourably, on the grounds that the person's disability might at some point render him incapable of undertaking the job or, indeed, a job to which he might be promoted. That is unacceptable. Indeed, it seems to make a nonsense of the Bill. The whole point is to keep disabled people in employment, doing jobs that they can do at the time. It would be wrong, especially in the case of those with progressive conditions, to allow discrimination on the basis of necessarily uncertain future prognostications. After all, at some point in the future we are all likely to be incapable of doing some jobs.

The amendment changes the drafting regarding the condition in question to read as follows:

    "the nature of the disabled person's disability significantly impedes, or in the case of an applicant for employment would significantly impede the performance of any of his duties".

I hope that that is what is meant and that that version will make it clear. The amendment is supported by the Multiple Sclerosis Society and other organisations dealing with various disabilities. I beg to move.

Lord Hamilton of Dalzell: I have been listening to the debate for the whole of the afternoon, and it seems to me that there is one aspect of this matter which is missing. On the previous amendment we debated on whom the onus of proof should lie; whether it should be on the disabled

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person or the employer. When faced by a disabled person and deciding whether he can do the job, the employer is in a quandary. Although he might go to the council and obtain legal advice, what I believe the noble Baroness, Lady Turner, said was that he would start with an assessment.

I am chairman of the Queen Elizabeth Foundation which is a training college for disabled people. We always start with assessment. Having assessed what we believe the disabled person is capable of, we train that person in some expertise and he ends up with qualifications. At the end of the day those disabled people obtain jobs. Even in the recession, 50 per cent. of our people are obtaining jobs.

I note that the object of the Bill is to drum reluctant employers into employing disabled people, but there are many employers who would be willing to employ disabled people if it were not for the uncertainties that exist. The uncertainties which surround the employment of disabled people are caused partly by the stringent regulations which apply to the able-bodied.

It is possible to employ someone, as I did, who happens to go sick from a variety of diseases. For four years, that person went sick for six months. He would return for the statutory three months and then go sick for a further six months. One could not get the doctors to say that he was unfit for work, and one could not get rid of him because what he did was always within the law. The only way of getting rid of that passenger within a small business, which required everyone to be active, was to reorganise the business in order to abolish his job and make him redundant. Such things cause anxieties in the minds of employers.

I have always taken the view that the Bill will do little good because employers will negotiate their way around the regulations if they do not wish to employ disabled people. There is a positive element, which one should examine, which would have been much more productive. For years the Government have run an extremely good scheme called the sheltered employment scheme. It means that when people take on disabled employees they are not employed by the company but by a middle agent. Therefore, if the employees fail to live up to their fitness or whatever they can be passed back to the original employer with no problem.

That scheme has had a marvellous effect because it has enabled employers to take on disabled people who then often come off the register. I wish that the Government would put more money into this scheme because it gets people out of the stocks and into employment and they become taxpayers instead of a burden on the Exchequer. It is an extremely rewarding business. The argument goes around and around but one must understand the problems on the other side of the equation.

Lord Ashley of Stoke: I would not like the noble Baroness, Lady Gardner of Parkes, to believe that I am anti-employer. Some of my best friends are—dot, dot, dot! The essence of the attitude of some of us to the Bill is that most employers are good but some discriminate partially out of ignorance and others partially out of malevolence. It is a small minority but legislation is required to deal with them.

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The noble Lord, Lord Hamilton, misunderstands the purpose of the Bill and certainly misunderstands disabled people generally. He gave an example of an employee going sick as being typical. According to excellent research relating to absenteeism, disabled people have a better record than able-bodied people. His example was by no means typical and most employers recognise that.

We are concerned with the employers who will not play the game and who require legislation to keep them in order. That is the point of the Bill.

Lord Rix: Am I not right in stressing the fact that the Bill involves not only employment but the right of access for disabled people to goods, facilities and services, that it is unlawful to discriminate against disabled people and so forth? This part of the Bill is about employment, but the Bill itself is on a larger scale and that should be remembered when commenting on the various amendments.

Lord Hamilton of Dalzell: Perhaps I may respond to the noble Lord, Lord Ashley. I agree that disabled people have a better record as regards absenteeism, but I do not agree that employers do not have fears when it comes to employing someone with a disability.

Baroness Farrington of Ribbleton: Perhaps I may raise an issue which troubled me when we discussed the legislation preventing, inhibiting and dealing with discrimination on the grounds of sex or race, and it troubles me now. There is the danger that a patronising view will creep across all debates on the issue; that somehow it is about being good to the people who are in danger of being discriminated against.

Frankly, I believe that we should look at the issue in a totally different way. If the person who is best able to do the job is disabled, of a minority ethnic group or a woman, we as a country cannot afford the luxury of losing that skill and having someone less competent doing the job. The issue needs to be set out in that way. I continue to stress my opinion that in the context of that philosophy we are in danger of treating those with disabilities less fairly than those who are discriminated against because they happen to be female or black. This legislation should not be treated as doing good, although moral arguments are important. It should be dealt with on the basis that we cannot afford to waste the talents of so many people.

10.30 p.m.

Lord Inglewood: As the noble Lord, Lord Rix, said, we have had many interesting discussions on the Bill but they may not be relevant to this particular part of the Bill. I hope that the Committee will forgive me if I concentrate my comments on the amendment in question.

As the noble Baroness, Lady Masham, pointed out, the effect of this amendment would be that an employer would not be able to take into account the significant effect of the disability on a disabled person's performance of his duties if that effect would occur some time in the future.

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We all recognise that if we are serious about tackling discrimination against disabled people we must not stop merely at prohibiting less favourable treatment. We must also require employers to take reasonable steps to help disabled people overcome any limitations imposed by their physical or mental impairments. Having done that, however, we must still recognise that some disabled people will, nonetheless, be unable or less able to do a particular job. In those cases, regrettably, we must allow that less favourable treatment is entirely justifiable.

There will be circumstances in which an employer may quite reasonably treat a disabled person less favourably because of an expected deterioration in ability to carry out his duties. In the case of an applicant, I do not consider it right that an employer should always have to take on the disabled person—and have to go through all the administrative arrangements in taking on that disabled person—only to have a perfectly valid reason a short while later for discharging that disabled person or transferring him to another job.

Where the disabled person is an applicant for employment, it is certainly our intention that a significant expected deterioration in performance should be addressed as an issue of "suitability" under Clause 5(4). But that will not necessarily be the case for an existing employee. Let us not forget that the amendment is not restricted to applicants for jobs. It covers a wider ground. The grounds of justification in paragraph (c) could apply; for example, in the case of a decision on what kinds of work to give to a person whose disability is expected to worsen.

I have listened carefully to the points that the noble Baroness has made. I must make it clear that I am not persuaded by this amendment. I recognise the concerns about progressive conditions or disabilities which are likely to worsen, but the answer cannot be to ignore the reality of the situation. How, then, will an employer know how to treat someone lawfully who may not be able to do the job for very long; or someone who may need different adjustments over time; or someone whose productivity declines although the employer is prepared to keep him on? These are the sort of issues on which we expect to be able to give guidance in a code of practice. They are not easy issues and the answers will differ from case to case, so we will not be able to make the position clear for everyone in every circumstance. But we will be consulting employers' organisations and disability organisations and we will hope to go some way to meeting the concerns that underlie the amendment.

I hope that that will provide some encouragement to the noble Baroness and that bearing that in mind, she may feel able to withdraw the amendment.

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