| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Darcy de Knayth: My Lords, I will communicate with Skill and see if we can progress on the issue. I thank the Minister.
Baroness Hollis of Heigham: My Lords, the noble Baroness's second point, about work placement and vocational training, was related. She felt, as did the
noble Lord, Lord Skelmersdale, that the description of work placements was possibly too narrowly drawn. I accept that these are difficult lines to draw and I am not saying that we have necessarily got it absolutely right—the provision may in future have to be revisited—but we are again trying to get placements that relate directly to work and work experience.That would mean that we are not, in this context, covering placements about enlarging life skills. For example, someone volunteering to work in a charity shop would not necessarily be covered under the regulations where it was part of getting them back into the ordinary life-flow of mixing with other people and so on. It would not be work-related. We are focusing on work placements that are directly work-related by analogy with our previous discussion about professional qualifications.
Lord Skelmersdale: My Lords, before the Minister leaves that point I wonder whether she will help me. We all know that the employers carrying out the training are not at fault because, due to their normal activities, they are already covered by the DDA. The gap appears to be for those people who seek out employers to create placements for training. I am advised, like the noble Baroness, Lady Darcy de Knayth, that such organisations are not covered by the regulations. Is that correct?
Baroness Hollis of Heigham: My Lords, it depends on the example the noble Lord has in mind. In some cases it would not be reasonable in terms of the push of the regulations—as opposed to the wider framework of a disability Bill. I am thinking on my feet so if I am misleading the House I apologise in advance. Say that someone had suffered from agoraphobia and had difficulties in leaving the house, but with a great deal of support and encouragement was able to do a couple of hours' placement in a charity shop, not because they were acquiring work skills, but because they were beginning to address some of the issues associated with their general health.
My understanding is that such a life-skills situation—which might be preparatory for a subsequent appropriate work-skills placement, perhaps involving learning IT skills and so on—would not be covered; nor is it intended to be covered. That would make the regulations too widely drawn. I am not saying that this is the last word on the matter, but that is our current distinction: whether something is directly related to work preparation or work placement as opposed to more general life experience activity, which would not be covered by employment focused regulations.
If the noble Baroness, Lady Darcy de Knayth, wishes to come back with specific examples I shall check with our lawyers our understanding of whether they would be covered. That might be the most helpful way forward. It is difficult for me to speculate in advance on how the regulations will come into effect.
The noble Lord, Lord Lester, complimented our lawyer on the drafting of the regulations. I am sure that that is completely unconnected with the fact that the
person concerned served in the noble Lord's chambers. I agree that it is a model of drafting that will be of help to us all. However, I disagree with his general approach of wanting a "big bang". I understand the arguments about Keeling schedules and the like. Having been involved in disability issues for some 15 years, from my experience perception issues change over time and there needs to be an incremental response.The noble Lord went on to say that this should be part of a big bang single equality Bill, brigaded with issues of discrimination on the grounds of age, sex and race, for example. I am not sure that I accept that intellectually. Disability is very different. All of us are one sex or the other; all of us have an age, for which we may experience discrimination in one area or the other; all of us have a race, for which we may be discriminated against. That is not true for disability. Only some people experience discrimination by virtue of their disability. The rest of us would not.
Lord Lester of Herne Hill: My Lords, of course I recognise that one-solution-fits-all makes no sense for different kinds of discrimination, but that does not mean that one cannot have accessible, user-friendly and intelligible legislation. Does the Minister agree that the problem of using Section 2 of the European Communities Act 1972 is that it is a tight corset that prevents the Government using subordinate legislation to tackle the wider problems of disability discrimination raised by noble Lords today? Would she also therefore agree that we must aim for a single disability discrimination Act? That is not a Utopian aim. It does not matter whether it is part of an equality Act or not, but in the words of the Labour Party's 1997 manifesto it should tackle,
- "unjustifiable discrimination wherever it exists".
Can we therefore take the sensible suggestion of the noble Lord, Lord Skelmersdale, and do what a Labour government did with the Equal Pay Act 1970 when we amended it in the Sex Discrimination Act 1975? In future disability discrimination legislation, we should have something like a Keeling schedule, stating the whole of disability discrimination law in one place. In that way, lawyers such as myself would not unjustly enrich ourselves by having to deal with complicated problems that do not need to be complicated and are complicated only because of the way in which the Government choose to legislate.
Baroness Hollis of Heigham: My Lords, I do not seek to engage the noble Lord about the "corset" European Communities Act 1972. He has far more experience than I do on the matter, and I would not wish to use such words about something that is beyond my reach.
As for bringing together these regulations, the DDA and any possible subsequent Bill or rewriting in a Keeling schedule, I must take advice on the matter. I have not been advised on it and do not know about the practicalities. If it involved parliamentary counsel, as such things tend to, we could arrive at a situation
where parliamentary counsel's time was displaced from primary legislation to pursue the matter. Therefore, there is a resource implication.I take the point that we need to make the law clear and accessible, but I need to take advice on the matter.
Lord Lester of Herne Hill: My Lords, I realise that it would take primary legislation, that it could not be done otherwise and that Ministers have no power to do it under Section 2 of the European Communities Act. I am simply saying that I agree with the noble Lord, Lord Skelmersdale. In a future Act, we should have one Act and not a whole series.
Baroness Hollis of Heigham: My Lords, I understood that the noble Lord, Lord Lester, was agreeing with the noble Lord, Lord Skelmersdale.
On the more general point about discrimination, I find it hard to conceive of a situation in which race was a relevant consideration in terms of an employment field. I can conceive, following the arguments we have had, of the acceptance we all share that competence must be relevant, and the ability to do the job is relevant to someone who has a disability. That is why the broad-brush approach would not necessarily be appropriate.
I turn to the points raised by my noble friend Lady Wilkins. She raised the question about direct discrimination regulations and asked what might happen if an employer sought to discriminate on grounds of stereotype rather than the merits of the individual. We believe that that is covered by the direct discrimination rules we have already discussed. Our regulations ensure that direct disability discrimination and failure to make reasonable adjustments cannot be justified. It is for the tribunal courts to decide whether discrimination has occurred in a particular situation.
The changes we are making will ensure that a disabled person, faced with the situation that my noble friend described, could bring a successful DDA case. I refer to situations in which an employer refuses to employ someone simply because of prejudiced and generalised assumptions. If, for example, someone had a history of depression and it was said that they could not do their job because it meant engaging with the public, that might well be a case of prima facie direct discrimination. The employer might rely on a statement by an occupational health adviser, who would have no knowledge of the person's individual circumstances. The adviser might decide that all people with clinical depression have terrible mood swings and therefore they cannot deal with the public and should not be employed in a call centre, for example. That would count as direct discrimination and would be covered in that situation.
I do not know whether that sufficiently answers the point made by my noble friend Lady Wilkins. Obviously, such a case would have to be tested at law, but our understanding is that the proposals on direct discrimination should cover the situations put to us by the DRC and those put by my noble friend today. If we need to qualify that, I shall come back to her.
My noble friend also raised the question of false perception. The problem is that we are trying to deal with an objective assessment, not the employer's state of mind. The example that she gave was covered more by her situation as a carer for a disabled person than as a disabled person herself. Therefore, as things currently stand, that would not come within the framework of the legislation or the directive. If, however, someone discriminated against another person because they believed falsely that that person had a disability that rendered them incapable, that would not be covered. Such a situation would relate to the employer's state of mind, and we have to deal with the objective facts of disability.
That brings us into the area of perception, which has been discussed under previous disability Bills. We have tried to stay in the territory that the person carrying the disability has to have the disability for the discrimination to be valid. It cannot rest on the assumption that the employer has false information in his mind. The classic example is when employers assume that a person must have HIV because he is living in a gay relationship and that therefore they can discriminate against that person. The individual involved might not have HIV, but he would be able to deal with the discrimination through other means, such as sexual orientation. That is the distinction we make in such situations.
Next Section
Back to Table of Contents
Lords Hansard Home Page