Previous Section Back to Table of Contents Lords Hansard Home Page

On exceptions, too, the responses favoured proceeding along the lines set out in the consultation paper. On financial services, people accepted that age was a legitimate factor that influenced risks and costs and agreed that access was a problem for some groups. People generally favoured a tailored exception allowing age to be used in financial services where it is fair and reasonable. This would mean that financial services should not be excluded wholesale from the ban on age discrimination on the one hand, and, on the other, that firms should not have to objectively justify every use of age.

There was also a lot of support for two other measures: first, requiring firms to help consumers find a quote through signposting or referring them to another provider; and, secondly, as happens already for gender, requiring publication of some data about how age is used in some products in a form that the non-expert can understand.

People also told us clearly that banning age discrimination should not affect services, benefits and activities enjoyed by particular age groups. This means exceptions to cover concessions, benefits and holidays for specific age groups. I appreciate why there is an appetite for these exceptions to be written into the Bill. We have consulted and we will consult again later this year on the draft secondary legislation itself. It is vital that we create exceptions for the right practices and that we frame them carefully and precisely to avoid unintended consequences for valuable services or inadvertently allowing unjustified discrimination to go on. This consultation will also include Saga and all the other organisations involved in providing these services.

With Amendment 129, in the name of the noble Baroness, Lady Knight, we return to the exceptions from the ban on age discrimination on the face of the Bill. As well as the matters covered earlier, it would cater for financial products for people over 50 at preferential or concessionary rates and make the same provision for goods and services for the over-50s. There is certainly nothing between us on the principle here. Most public sector age-based concessions will be lawful under statutory authority exception or positive action provisions, as referred to by the noble Lord, Lord Lester, in other parts of the Bill. For private

13 Jan 2010 : Column 537

sector concessions, including preferential rates, a specific exception is likely to be needed, which would potentially cover all types of goods and services. I say again that we are strongly minded to proceed along the lines set out in the consultation paper with the development of exceptions allowing these activities to continue.

Amendment 129A, in the name of the noble Baronesses, Lady Warsi and Lady Morris, is also intended to put an exception from the ban on age discrimination for insurance on the face of the Bill. Our approach to the use of age in financial services will allow legitimate use of age and improve access and transparency.

I turn to the particular issues raised by the noble and learned Baroness, Lady Butler-Sloss. She asked whether secondary legislation would be ultra vires. The answer is no, because Clause 195, which we will discuss later, expressly provides powers to make exceptions in secondary legislation. The noble Baronesses, Lady Knight and Lady Howe, and the noble and learned Baroness, Lady Butler-Sloss, asked about guidance. I would like to make it absolutely clear that exceptions for Saga holidays and other practices will be made in an order under the power in Clause 195. Businesses will have that certainty.

In reply to the noble Baroness, Lady Warsi, there will be only one order covering all exceptions for holidays, financial services et cetera. We have made it clear that the order will come into force on the same day as the ban itself in 2012. To be absolutely clear: the ban on age discrimination in services will be commenced on the same day as the exceptions from it come into effect. As for whether Saga will have to sell financial services to the under-50s, our proposals would indeed allow financial services companies to design and supply products especially for the over-50s. That is because the exception we propose would not rule out the use of maximum/minimum age limits. We see signposting and referral as the way to improve access to financial services.

I turn to what is now Amendment 57ZA. Briefly, we believe that its intention is to probe the circumstances in which the provision of services or goods targeted at, or specifically intended for, particular age groups or people of a particular sex can be justified. The amendment seeks to provide a material factor defence for the case of discrimination,

So, for example, where a business seeks to offer services only to people over 50, the amendment says that it would be able to do so if that was due to,

We do not think that a material factor defence is needed on sex because specific exceptions already allow for the provision of separate and single services for different sexes. Those may be needed due to practicality or for reasons of privacy-for example, separate changing rooms in swimming pools. These exceptions ensure that this continues to be lawful.

When we commence the provisions in respect of age, Clause 13(2) will provide an objective justification test. In addition, specific exceptions will be provided to ensure that beneficial and justifiable age-based practices,

13 Jan 2010 : Column 538

products and services can continue-for example, free bus passes for the over-65s, targeted holidays and, indeed, my noble friend's television licence. I therefore ask the noble Baroness to withdraw the amendment.

Baroness Knight of Collingtree: My Lords, I express my thanks for what has just been said. It will be read outside this House, as well as inside it, with enormous care because it will be a matter of reassurance. I hope that all will go as the noble Baroness clearly wishes it to and that the happy situation which has faced us in the past will continue.

Lord Elton: My Lords, the noble Baroness has given many examples from the commercial world. Declaring an interest as somebody who has been a member of a particular club since 1953, and is therefore exempt from paying any but a minimal subscription, will this law touch that sort of activity, and will that sort of discrimination be protected in the same way as the Saga-type discrimination?

Baroness Thornton: I am getting a nod from the Box, so I think that the answer is yes.

Baroness Warsi: My Lords, I thank the Minister for her very detailed response. She has clearly provided the Committee with much clarity, and the security and stability that her words will give to business will also be gratefully received. I thank all noble Lords who have supported this amendment. The noble and learned Baroness, Lady Butler-Sloss, referred specifically to the 18 to 30 holiday. I declare that I have not been on one of those either-I seem to be falling between the gaps at the moment. The noble Baroness, Lady Howe of Idlicote, also referred to a Saga holiday that she was apparently attending as the wife of a lecturer. Saga has had much publicity in your Lordships' House this afternoon. I am interested in whether, if I cannot attend a Saga holiday, I might attend as a lecturer and take advantage of those great facilities. I thank the noble Lord, Lord Davies of Coity, for his support on this amendment. I also add that he does not look 75. In the light of the comments and reassurances made by the Minister, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Amendments 23 to 27 not moved.

Clause 13 agreed.

5.30 pm

Clause 14 : Combined discrimination: dual characteristics

Amendments 28 to 33 not moved.

Amendment 34

Moved by Baroness Warsi

34: Clause 14, page 8, line 9, leave out subsection (6)

Baroness Warsi: My Lords, this amendment is designed to probe further the nature of the dual discrimination provisions. We have tabled it in order to discuss our concerns about the clarity regarding the dual discrimination provisions in the Bill. The Government produced a document entitled Equality Bill: Assessing

13 Jan 2010 : Column 539

the Impact of a Multiple Discrimination Provision
. This document shows that there was a clear need for a "multiple discrimination provision" of some form as there was evidence of a real problem which needed addressing. The approach to this seems very sensible. The Government expressed a desire to assess how they could allow multiple discrimination cases to be brought forward without making the law overly complex and therefore placing undue burden on those responsibilities under the law.

At the end of their consultation they found that such a provision was indeed necessary and so the new clause has been added which appears to comply with these principles. Citizens Advice recently carried out some qualitative research into clients' experiences of combined discrimination and gaps in protection. It discovered that there was strong evidence of combined discrimination such as, for example, an older and disabled worker experiencing unfair and unjustified scrutiny of their capability. Citizens Advice gave evidence to the Government Equalities Office which showed that out of 13,000 clients who visited it between April and December 2008, 8 per cent presented with two grounds of discrimination-that was more than 1,000 individuals, of which 119 presented with more than two grounds. This demonstrates that there is a real and relevant problem, albeit on a rather limited scale. We therefore welcome this new clause.

The Government have also taken the concerns of businesses on board, and as the figures mentioned before show, this new clause should be able to close the gap in the law but also will not place too much of a burden on businesses. The Government have further underlined this in their impact assessment. They have stated firmly that to increase to more than two characteristics would be unnecessarily burdensome and would add too much complexity for business. They estimate that in the first year around 7.5 per cent of discrimination cases will come under this provision. They anticipate that awareness of the provision will also mean that the next year the number of cases will fall to 6 per cent and then settle at about 4 per cent thereafter. This is when they expect the success rate to remain at about 2 per cent.

It would appear that this is a sensible way of making sure that the gap is closed and that the burden on business remains low. However we do have one major concern which has been raised by the British Chamber of Commerce. Here we would be very interested to hear the Minister's response and to gain some clarity on how this provision will work in practice. The costs as laid out in the impact assessment seem manageable. However this is dependent on businesses being absolutely clear about exactly what their responsibilities are and their status as regard complaints. If not, there is a risk that they will spend a great deal more money on how to ensure that they do not suffer from a large number of new complaints. This would mean that, despite the assurances of the impact assessment, the burden on businesses would be much greater. The British Chamber of Commerce is very worried about the impact on businesses and the fact that this will be disproportionate to the number of successful claims per year. Can the Minister therefore offer any reassurances here?



13 Jan 2010 : Column 540

In another place it was mentioned that the guidance produced by the Equality and Human Rights Commission would be sufficient to ward off any potential gold-plating. Can the Minister give us any further reassurances to this end, and is there any greater detail as to what will be contained in this guidance? When can we expect to see some draft guidance on this provision? Furthermore, what will be the status of putting forward a single-strand discrimination claim at the same time as a dual discrimination claim, and can she inform the Committee as to how this will work?

I look forward to hearing the Minister's response to the amendments tabled by the noble Baroness, Lady Howe. They raise an interesting point. Evidence has shown that there was some case for an extension to a provision for dual discrimination in terms of direct discrimination, albeit on a limited scale. The evidence, however, shows that there would be very little need, if any at all, to extend this further to indirect discrimination and harassment. It would also risk increasing complications for business.

The Equality Bill: Assessing the Impact of a Multiple Discrimination Provision stated:

"Extending the provision to include indirect discrimination or harassment could be unwieldy for businesses and organisations trying to ensure they comply with a multiple discrimination provision".

It also stated that,

We, too, would be concerned to ensure that the burden on business was not unduly onerous and that the potential complexities of protection on the basis of dual characteristics should not be extended unnecessarily. Can the Minister inform the Committee about some of the research undertaken which illustrated that there was little need to extend this provision? I beg to move.

Baroness Howe of Idlicote: My Lords, I shall speak to Amendments 42 and 46 in my name and that of my noble friend Lord Ouseley. I support the Government's provision to address combined direct discrimination-a provision which, as I understand it, was introduced towards the end of the Committee stage in the other place. As the Solicitor-General noted during the Bill's Report stage, the provision enjoys cross-party-indeed, non-party-support and, as many colleagues will know, introduces protection against direct discrimination relating to any two protected characteristics.

Substantial evidence of the need for such a provision has been gathered by organisations such as Citizens Advice, the Equality and Diversity Forum and the Discrimination Law Association. There is also as strong support from this House, as stated in several contributions at Second Reading. I echo the point made by my noble friend Lord Adebowale at Second Reading that the combined discrimination provision is important in order to recognise and accept the many facets of an individual's identity. The current proposal offers protection to, for example, older disabled employees experiencing increased and unfair scrutiny of their capabilities or being singled out for redundancy, or to black men being subjected to specific stereotypes of prejudices relating, for example, to sexual prowess or aggression-again resulting in discrimination.



13 Jan 2010 : Column 541

However, unlike the noble Baroness, Lady Warsi, I would argue that the provision as it stands does not go far enough. I should say that my briefing is very much based on evidence from the CAB, which has, as everyone knows, played an enormously important part in advising citizens throughout the UK. If ever there was experience to go on, we would find it there-we may have to question the CAB in more detail later.

The provision as it stands does not go far enough. Not including combined indirect discrimination and combined harassment leaves a significant gap in the law-I have always been in favour of including indirect discrimination because it played such an important part in the Sex Discrimination Act, albeit in limited areas. This would also make it harder for some people to seek the justice they deserve and would make the law more complicated.

While the Government's provision would mean that a claimant could in future bring one case with just one claim relating to a combination of two characteristics if they had experienced direct discrimination, this will not apply if they have experienced indirect discrimination or harassment. Instead, they will have to bring any indirect discrimination or harassment as separate claims relating to the single characteristics. This can prove impossible. For example, a Pakistani Muslim client of a citizens advice bureau was harassed by a colleague saying, "I hate you and your people". At tribunal she would have had to prove whether the hated "you and your people" were either Pakistanis or Muslims, which in her case could not be done. As one CAB case worker put it:

"In trying to separate out the grounds to prove the treatment ... you dilute both the issues ... with the consequence that you may end up presenting two weak cases and losing both".

Consequently, solely on technical grounds, it can be impossible to prove that indirect discrimination or harassment has taken place.

This is made worse by the requirement to use comparators under the separate characteristics, which enable an employer to deny indirect discrimination or harassment irrespective of how badly they may have treated their employee. Organisations such as Citizens Advice and the Discrimination Law Association have provided significant evidence to show that this is a real problem in people's lives and needs to be addressed, not least because many people who experience direct discrimination also experience harassment or indirect discrimination within the ill-treatment they face.

For example, on combined indirect discrimination as in Amendment 42, Citizens Advice evidence indicates that not being able to bring a combined indirect discrimination claim may be a particular issue for women. In one case, a CAB client, a disabled woman, requested flexible working due to both her disability and her childcare responsibility. Her employer refused. The less favourable treatment she received was due to a combination of indirect discrimination on the grounds of her sex and direct discrimination on the grounds of her disability.

That is also an issue that specifically impacts on migrant women and is linked to gender concentration in certain occupations. For example, Citizens Advice has dealt with a case regarding the discriminatory working conditions women from certain countries face

13 Jan 2010 : Column 542

when recruited to the UK to undertake nursing jobs. I emphasise that this is only in specific circumstances; it is not everybody recruited to come over here to undertake nursing.

On combined harassment in Amendment 56, Citizens Advice conducted in-depth investigation of 15 cases that meet the Government's definition of direct discrimination. Some 13 of those-86 per cent-involved incidents of harassment as well as direct discrimination. While a small sample, Citizens Advice is convinced that it is a representative one, with its case workers reporting that many direct discrimination cases begin with or include some form of harassment, in particular verbal abuse and bullying which is often the precursor of less favourable treatment.

These amendments will improve protection to reflect the reality of people's lives and avoid claimants needing to bring complicated multiple claims.

It simply does not make sense to consider some acts on a combined basis and to have to separate out others into single characteristics. There is clear evidence of the need to address combined indirect discrimination and combined harassment, and I argue that adopting these two amendments would make it simpler for individuals to bring claims and for employers and advice agencies to ensure that their staff were trained adequately in the law.

5.45 pm

Lord Lester of Herne Hill: My Lords, it causes me personal pain ever to disagree with the noble Baroness, Lady Howe of Idlicote, as she knows. She and I have been working together in this area for more decades than we probably want to admit. However, I have to disagree here.

The starting point is to secure a fair balance between the right of alleged victims and the right of those who are alleged to have discriminated against or harassed them. There is a need for law which is capable of being understood not by ordinary men and women-that would be too much-but at least by the employment tribunals that have to deal with these matters and by specialists in this area.

When I began to look at the Bill, like the noble Baronesses, Lady Warsi and Lady Howe, I was tempted to push the Government to go further. However, Ministers allowed me to have a lengthy meeting with members of the Bill team, who convinced me, after detailed arguments, that I was wrong. It is always very desirable to recognise that that is likely to be the case.

At the moment, there is nothing to stop a woman or a man bringing a case on several different grounds of alleged discrimination or harassment, and nothing in the Bill will make that more difficult. Therefore if, for example, a woman wishes to say that she has been discriminated against because she is a woman or because she is black, there is nothing to stop her doing that. The Bill makes it easier for a person in that situation to say, "Well, I'm not sure whether it was because I was a woman or because I was black, or to what extent it was a bit of both, so I am putting in a combined grounds claim in that area". I hope that what I have said is intelligible-it is to me, at any rate-and workable. It means that the tribunal will look at the reasons for the less favourable treatment to see whether it is "because

13 Jan 2010 : Column 543

of", to use that admirable phrase, gender or race or a bit of both. Regardless of whether it is one, the other or a bit of both, it will be unlawful.

The argument is that if that can be done on two grounds, why cannot it be done on three or four grounds? I think the answer is that it would be excessively burdensome for employers and it would complicate litigation in employment tribunals. If two grounds are not enough, there is nothing to stop you adding others, as is the case at the moment. Therefore, I became convinced that pushing the matter further would be counterproductive.

Leaving that to one side, the next question is: what about harassment? Again, I do not think that there is a need for combined grounds in relation to harassment, which is a different concept. The question is whether the alleged conduct, on one or more grounds, essentially involves bullying, insulting people's dignity and so on.

The next question is: can one not go further in relation to indirect indiscrimination? Like the noble Baroness, Lady Howe, I am totally wedded to the idea that discrimination is not just about less favourable treatment but about equal treatment with unequal impact. The problem is that most people do not understand what indirect discrimination means in the first place. It is a difficult concept, as we have discovered. If you have lots of different grounds which you can combine in a single indirect discrimination case, it will become completely unmanageable. First, you have to define which group, of which the claimant is a member, is suffering an adverse disparate impact. If the group is, say, women, black people or the disabled, that must be intelligible. Then you measure whether there is disparate impact or not. Then you measure whether there is a lack of objective justification for having an equal rule with an unequal effect-something of that kind. But if you start adding more than one category to indirect discrimination, you have to start looking at the statistics, not just for the one ground, but for more than one ground, and the thing becomes unworkable.


Next Section Back to Table of Contents Lords Hansard Home Page