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Lord Gladwin of Clee: Before my noble friend responds, in view of the fact that there is really one organisation involved in this, could I suggest that we have an assurance that there will be the closest possible consultation with Public Concern at Work so that when the amendment is brought forward by the Government on Report we do not have any difficulty?
Lord Sainsbury of Turville: Yes, I am very happy to give the assurance that we will have very close discussions on this.
Lord Borrie: I thank the Minister and I thank my noble friend Lord Gladwin of Clee for his intervention. I was slightly anxious when the Minister began to speak because I thought he was being a little too tentative and might not actually reach the point of saying that he would bring forward an amendment to the actual Bill at Report stage. However, he did do so in due course, as I patiently listened. I am delighted at that and look forward to seeing that amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 200 not moved.]
4.15 p.m.
Clause 42 [Equal pay: questionnaires]:
Baroness Miller of Hendon moved Amendment No. 201:
- Page 45, line 2, at end insert—
The noble Baroness said: I would like to speak to Amendments Nos. 201 and 202 together. Clause 42 relates to equal pay questionnaires. After some 32 years since the Equal Pay Act 1970 was passed, the Government have decided that it needs to be strengthened by the addition of a new Section 7B coming after a previous legislative addition, Section 7A. The new section consists of 10 subsections contained in 63 lines of text. Every one of those subsections, every one of those lines, relates to the rights of an employee seeking redress for what the first subsection describes as,
The Committee will, I am sure, have noticed that the subsection refers to her as "the complainant" and not the claimant. The new section goes on to describe in detail the obligations of the employer to provide information to enable the complainant to investigate and pursue her claim and the remedies available if the employer fails to co-operate and the powers of the employment tribunal to enforce that co-operation.
I am willing to assume that the long experience of the operation of the Equal Pay Act has revealed an impediment to its operation, or to the ability of claimants to be able to prepare their cases, or indeed whether they have a viable claim at all.
My involvement in the cause of promoting the advancement of women in every sphere, and the promotion of women's rights, goes back by coincidence at least as far as the 1970 Act. I am appalled at the fact that, as I have said, 32 years after the passing of the Act women are still paid, on average, only 82 per cent of what men receive when you work it out on average hourly earnings for someone who is working full time. That is an 18 per cent gender gap. Women working part time earn 60 per cent of what part-time male workers receive based on an hourly average wage. That is a gender gap of 40 per cent, which is not acceptable.
However, while welcoming any procedural change that will help to redress that balance—and I hope that they can—I have to point out one major defect in this clause. While assisting an employee to obtain her rights, all of the 10 subsections ignore the rights of her colleagues. None of the 62 lines of text protects a basic right of those colleagues. I refer to the ones she wishes to use as comparators in support of her claim and to the rights of those colleagues and co-workers to have their personal privacy respected—a right enshrined in the Convention on Human Rights, to which this country subscribes, and which are also provided for in the Human Rights Act 1998.
The Minister certified to Parliament—as the Committee will see on the front cover of the Bill—that:
In this case the inevitable answer of the Government that the point will be covered by the regulations is not acceptable. First, the object of this amendment is to prescribe what those regulations must contain and not leave that to the discretion of the Secretary of State. Secondly, without the requirement being incorporated
So far as Amendment No. 202 is concerned, I have to confess that when I first put this amendment down I did so because it had been put down by my honourable friend the Member for Runnymede and Weybridge in the other place. Although I had seen the amendment, I put the amendment down before I had the opportunity of reading what he said about it in the debate. However, I now see that he conceded that the amendment was defective to the extent that it does not cover the situation of a case going beyond the employment tribunal or the employment appeal tribunal to, for example, the European Court of Justice. If the Minister now concedes the principle of the amendment, or if the Committee decides to accept it, this minor deficiency can easily be corrected by a further amendment which I could introduce at a later stage, or, indeed, the Government could do so.
The principle involved in this amendment is absolutely identical to that applicable to my Amendment No. 201—which is grouped with it and to which I have just spoken—in relation to the questionnaire that the claimant is allowed to serve. The issue is that of the right to privacy of other employees and the right not to have their personal affairs bandied about the workplace or elsewhere. The right of the employer to ensure that a disgruntled employee does not use the rights to information are not used as a foundation for a general fishing expedition or to stir up discontent among other employees who may not be receiving the same pay or the same benefits that the employee who is being used as a comparator is receiving.
During the debate on this amendment in the other place, the Minister suggested that an employer, who was suspicious that a fishing expedition might be being embarked on or who wished to protect the rights of other employees, could withhold the information.
However, new Clause 7B to the Equal Pay Act 1970 provides in subsection (4) that a tribunal may draw any inference which it considers just and equitable if an employer deliberately and without reasonable excuse omits to reply. I ask Members of the Committee to predict whether a tribunal will regard it as a lawful excuse for an employer to decline to answer because he is protecting the privacy of another employee or group of employees. I also ask Members of the Committee whether they believe that an employer would stick his neck out and risk an adverse inference being drawn against him because he is altruistically protecting other employees' rights of confidentiality.
The Minister in the other place tried to draw an analogy with what he called other areas relating to discrimination. If that is so—I am not sure to which areas the Minister was referring—they should be amended as well.
What we need is for the provisions to be upgraded; we should not bring this legislation down to the deficient level in other legislation. Two or more wrongs do not make a right. Once again, I draw
The Minister has certified to this House on more than one occasion that the provisions of this Bill are compatible with convention rights. In the High Court, a litigant who makes improper use of pleadings, or affidavits, is liable to find himself hauled off by the tipstaff for contempt of court. Instead of producing, as his colleague did in the other place, a series of specious arguments against a simple and entirely reasonable code of practice, I hope that the Minister will accept that all employees' rights are equal and that one employee is not more equal than his or her colleagues. I beg to move.
Baroness Turner of Camden: I listened with interest to what the noble Baroness, Lady Miller of Hendon, had to say, but I find it rather difficult to understand how legislation that is based on comparisons—the equal value legislation has that basis, as does the original Equal Pay Act—and which requires that employees should produce comparators can possibly sit with the kind of amendment that she is proposing. She may argue that the privacy of other employees can be affected, and that may well be so. However, if one is going to get equal pay on an equal footing, it has to be compared with somebody and that automatically means that one has to some extent to lose the privacy of other employees.
"( ) Any questionnaire prescribed by the Secretary of State under this section shall ensure, so far as practicable, that the right of privacy of any other employee of the respondent shall not be breached, in particular by disclosure of his or her name or address."
"a person who considers that she may have a claim under section 1".
"In my view the provisions of the Employment Bill are compatible with the Convention rights".
However, in the case of Clause 42 as presently drawn, that is not so. Fortunately, this defect can easily be remedied by the adoption of this amendment. I hope the Minister will have noticed that I have not provided for an absolute right of non-disclosure of a fellow employee's name and address because I am well aware that in a small firm the comparator may be just one employee whose identity will therefore be obvious to absolutely everyone. But what has to be avoided "so far as practicable"—and I have used those words in the amendment—is the possibility of identifying that person either to other employees, or to the public, or to anybody else.
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