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Lord Wedderburn of Charlton: Before my noble friend sits down, or if he is still in semi-levitation, perhaps I may ask him whether I heard him aright. He said that the regulations will allow a friend to accompany the applicant. In these parental considerations, that is very understandable. But did I understand him to say that they will be limited to representatives of recognised trade unions? That, of course, is not the case in relation to Section 10. The amendment would impose a new limitation which, apart from CAC procedures of recognition, would give the employer a veto by refusing recognition to particular trade unions. Section 10 does not allow for that. Perhaps I heard him wrongly. Did he say that?
Lord Sainsbury of Turville: No, I should have made it clear that I was quoting from the task force. It suggested in its report that parents should have the right to be accompanied by a fellow employee, friend or recognised trade union representative. However, that is what the task force said; it is not a statement of what will be in the regulations.
Baroness Turner of Camden: Am I right in assuming that a "recognised trade union representative" is not necessarily the same as a "representative of a recognised trade union"? There can be situations in which a union is busy organising the staff and has not yet been recognised. However, if the representative himself is recognised from the union, that is different from being from a recognised trade union. Is that right?
Lord Sainsbury of Turville: I am sure such points will be taken account of in the drafting of the regulations.
I was not commenting on that point. I was commenting on the question of other people being allowed to come in.
Baroness Miller of Hendon: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 253 and 254 not moved.]
Baroness Miller of Hendon had given notice of her intention to move Amendment No. 255:
- Page 54, line 9, leave out "based on" and insert "substantially based on materially"
The noble Baroness said: The Minister spoke to Amendment No. 255 in the large group of amendments. Under the circumstances, I shall not move it.
[Amendment No. 255 not moved.]
[Amendment No. 256 not moved.]
Baroness Miller of Hendon moved Amendment No. 257:
- Page 54, line 35, at end insert—
The noble Baroness said: The amendment is designed to incorporate a fundamental principle of law that applies in most countries. In Latin, the principle is res judicata—the matter had been adjudicated upon. In other words, there cannot be a second trial on substantially the same facts. This amendment is also designed to prevent what is called "forum shopping". If someone loses a case before one set of adjudicators on one set of grounds, she cannot be allowed a second bite of the cherry by taking the same facts to another tribunal on another alleged ground.
The amendment does not involve merely a matter of political difference between the Government and the Opposition. It simply involves a matter of whether the long-standing law of the land is to apply to the new legal system that began in the late 1940s with the rent tribunals and is now gradually evolving as the number and functions of tribunals increase in place of, or as a complement to, the regular civil courts. I beg to move.
Lord Sainsbury of Turville: The noble Baroness is suggesting that if a parent is unsuccessful in taking their case to tribunal under this right, any claim made that is under the Sex Discrimination Act 1975 will be presumed to be ill founded. That is surprising because the clause sets out a new right that is completely separate to the Sex Discrimination Act. We really should not confuse them.
It may be helpful if I explain how an application is to be considered by an employer. When an employer receives a request, they will have to follow the procedure that is outlined in the legislation. That procedure is designed to promote a positive dialogue between both parties to help them identify a flexible working pattern that suits them both. If the employer
An employment tribunal will verify that the procedure has been followed correctly and that an acceptable business ground has been given as a reason for declining the request. It will also check any disputed fact on which the business reason has been based. The tribunal will have a general power to question the employer's actual judgment.
That test, under the right to apply for flexible working, is very different from the much more onerous test of objective justification, which is used in the Sex Discrimination Act. Under the sex discrimination test, a tribunal can question the employer's reasoning.
As I hope I have now made clear, the two tests are different and there is an extremely important reason why the link that the noble Baroness proposes should not be pursued. Sadly, experience shows that some employers continue to discriminate on the basis of sex. It may be that an employer is able to comply with the procedure under the right to request and provide a business ground but still reach their decision on a discriminatory basis. For example, an employer may decide that he will refuse all requests from men irrespective of the strength of their case and ensure that he is able to show that he has not acted in breach of the right to request. However, the employee will still be able to bring a successful sex discrimination claim if he can show that the employer made a decision on a discriminatory basis.
If an employer sexually discriminates against any employee, whether directly or indirectly, it is absolutely right that they should suffer the penalties that are provided for in the Sex Discrimination Act.
I should add that there is another reason why this amendment is unworkable. Individuals often bring two different claims which emanate from the same facts together—indeed, the tribunal also has power to join them. It will therefore be possible to bring claims under both this right and sex discrimination legislation at the same time.
To accommodate the amendment, additional provisions would have to be made to ensure that the decision on the "right to request" claim was made before the sex discrimination claim decision or the amendment would have no effect. That would lead to the absurd and unjust situation whereby a tribunal could hear evidence of blatant discrimination and has to make a decision that there was no discrimination only because the right to request had not been breached. For those reasons, I ask the noble Baroness to withdraw the amendment.
Baroness Miller of Hendon: I thank the Minister for his clear reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 258 and 259 not moved.]
Clause 48 [Rate of maternity allowance]:
[Amendment No. 260 not moved.]
Clause 49 [Work-focused interviews for partners]:
Baroness Turner of Camden moved Amendment No. 261:
The noble Baroness said: We now come to Clause 49. This section of the Bill contains a requirement for a partner to attend what is known as a work-focused interview. As I understand it, the Bill will give Jobcentre staff full discretion in deciding whether or not a partner should attend for such an interview. I am concerned that that could result in people being called in for interview in inappropriate circumstances, despite what is said in the Explanatory Notes.
The range of benefits within the clause not only includes income support and jobseeker's allowance but also incapacity benefit, severe disablement allowance and invalid care allowance. That suggests that some partners of people in receipt of benefits as carers and as disabled people will be expected to attend for an interview or face possible loss of benefit. Women at home with children may come under pressure at an interview, which in itself could be difficult to attend.
An assumption that an unemployed partner could look after children might not be correct. NACAB has expressed some concern about the proposals. It says that the current administration of sanctions against people who fail to attend a training course or take a job raises doubts about what would happen in practice. It has given me a number of examples of what has happened in the implementation of those regulations.
It is true that the Explanatory Notes specifically state that the interviews will concentrate on job potential and provide the partner with access to a wide range of help and information on work, benefits and services, such as child care. It states that it is intended to encourage partners towards labour market participation. However, any action that they may choose to take beyond taking part in the interview is claimed to be entirely voluntary. However, the mere fact of having to attend an interview, with the possible loss of benefits as a threat in the background should the interview not be attended, may of itself bring pressure on an individual. It could also lead to assumed pressure being placed on an individual to accept employment that is not suitable to background training or general circumstances. Our amendment seeks to deal with that.
This is a probing amendment and I would welcome the Minister's reaction. It seems that the officials who will be responsible for implementing this section of the Bill will need to have careful and sensitive training because they will be dealing in the main with people
"( ) If a complaint is made to an employment tribunal and the complaint is held to be not well founded it shall be conclusively presumed that the refusal to vary the terms is not a breach of the Sex Discrimination Act 1975 (c. 65)."
4.45 p.m.
Page 56, line 31, at end insert "in relation to jobs which are suitable for that person"
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