Previous Section Back to Table of Contents Lords Hansard Home Page

There is nothing to stop somebody, if they have that kind of lawyer, having multiple grounds on indirect discrimination as it is. Those Ministers who took the step of having combined discrimination, dual characteristics, in Clause 14 did really well to persuade the Business Ministers to allow that to happen, given that the CBI and other employers' organisations do not want any of this.

I conclude on a pathetically pragmatic political note, which is that I do not think we could get any more and we are jolly lucky to have what we have now. I would stick by that.

Lord Low of Dalston: My Lords, I welcome very much the Government's initiative to provide for claims of combined discrimination. Indeed, it has been welcomed by organisations representing disabled people. The organisations would also welcome some clarification that disability will always count as one single, protected characteristic with respect to claims of combined discrimination, in line with the Minister's Answer to the Written Question asked by the noble Lord, Lord Lester, on 19 October 2009. He asked whether,

The noble Baroness, Lady Royall, replied:

"If a person is disabled by both physical and mental impairments, these impairments should be treated as the protected characteristic of disability with respect to any claims for discrimination that they may wish to make".

There is an element of uncertainty in this answer in that it begs the question whether the compositing of claims in respect of disability, which it envisages, is limited to the case where claims based on both physical and mental impairment are combined. The Minister concluded in more general terms by saying:

"Even though a single claim may involve a number of impairments, provided that the person met the definition of a disabled person ... this would be treated as disability discrimination".-[Official Report, 19/10/09; cols. WA 38-39.]

This speaks in quite general terms of a number of impairments, without reference to whether they are physical or mental. I would be grateful if the Minister could confirm on the record, when she replies, that all impairments or any combination of them, whether physical or mental, will be treated as the single protected characteristic of disability in claims for discrimination.

The Lord Bishop of Winchester: My Lords, I want to take the opportunity that Amendment 56 provides of probing a line in this legislation about harassment that risks exacerbating an existing concern of very many in the churches. Subsections (2)(a) and (b) of the new clause proposed in Amendment 56 copy exactly the wording in Clause 26(1)(b)(i) and (ii). My concern with the first of those-that B's dignity may be violated-is the chain of cases we have seen in recent months where Christians, but it could be people of other faiths too, in the context of their work have said "God bless you" or offered to pray for somebody or whatever it may be, not as I understand it insistently or in any normal sense of the word harassingly, but much more because that is to them the most natural outworking of being Christian.

There have been a number of cases when their employer-a local authority, or whoever-has jumped on that, hauled them up and in some cases threatened them with suspension or dismissal. In some cases they have been suspended or dismissed. If such insensitive behaviour is repeated again and again against people's manifest wishes, that could be harassment, but this action by local authorities and other employers is a sign of something that occurs in a number of amendments to the Bill, that is sometimes there in the activities of the Government, and that is certainly in some of the work of the Joint Committee on Human Rights: that if one is a person of faith one can switch on and switch off one's whole mindset and behaviour. But people of faith who are worth their salt-I guess this is true of Jews, Muslims and many others, as well as Christians-are what they are through and through, like the lettering in a stick of rock.

I am concerned that the form of words in subsection (2)(a) of the proposed new clause, which is the same as in Clause 26(1)(b)(i), may exacerbate that set of problems. It is an irrational and ignorant way of behaving by authorities and others. I have an analogous and different anxiety on subsection (2)(b) of the proposed new clause, which reproduces Clause 26(1)(b)(ii). That

13 Jan 2010 : Column 545

anxiety is based not in imagination but in situations that I understand have occurred. In a Christian or Jewish care home, for instance, there is a fear that a worker who is not part of the faith of the home could complain. The same applies to a Salvation Army night shelter, for instance, or there might be a cross on the wall in a Roman Catholic care home, or a Jewish symbol in a Jewish care home. There have been instances when a worker has raised the question, as happened recently in Italy in relation to church schools, of whether the fact of-

Lord Lester of Herne Hill: I am sorry to interrupt, but we will have a full debate on harassment when we come to a later group of amendments. All these points, many of which I am sympathetic to, will arise in that context. We are dealing with combined characteristics only at the moment. Harassment is just a bit of it. I thought that I would mention that as we need to go into harassment in some detail. I apologise for even mentioning it.

The Lord Bishop of Winchester: The noble Lord has said it very graciously. If I am speaking at the wrong time, I shall stop. What I have said is on the record so it may be useful later.

The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): Amendments 34, 42 and 56 relate to Clause 14, which provides protection from what we call dual discrimination and enables someone to bring a claim of direct discrimination because of the combination of two relevant characteristics. I am grateful for the support for this clause from all around the Committee.

The law as it stands requires that people must separate the different characteristics and bring separate claims, which means that it can be hard for those who experience this kind of discrimination to secure a remedy. For example, a black woman discriminated against when she is passed over for promotion who has to bring separate claims for race discrimination and sex discrimination may not succeed in either claim if her employer can show that black men and white women are not treated in the same, less favourable manner. The clause provides proportionate and effective remedies for this gap in the law, based on careful consideration of the evidence available through consultation and discussions with all interested parties.

6 pm

I have shared with interested Peers a factsheet on dual discrimination, produced by the Government Equalities Office, which explains this clause in some detail, and I will today place a copy with the Library of the House.

The noble Baroness, Lady Warsi, spoke quite properly of the impact on business. Our discussions with business and other organisations made the clear point that good guidance, issued early, will help businesses to ensure that they do not overcomply, as it were. The EHRC has today issued its first draft of the codes of practice, which includes combined discrimination and is available on its website. We understand that the commission will publish its draft guidance for consultation on 25 January, and I will ensure that it is circulated to all noble Lords participating in this debate.



13 Jan 2010 : Column 546

Amendments 42 and 56 concern intersectional discrimination and harassment respectively. Before I address the proposed new clauses in the amendments, I should say to the right reverend Prelate that I have heard his concerns, which will be dealt with in a later debate. On the harassment protection in the Bill, the question was whether the Bill could prevent Christians or people of other religions expressing their faiths at work. I should make it clear that the test for harassment has an objective element; the test is whether it is reasonable for the treatment to have the effect complained of. I hear the concerns expressed by the right reverend Prelate and I have sympathy with what he says, but we will come to that later on.

When debating this clause in the other place, my honourable friend the Solicitor-General made it clear that this provision was being introduced, following careful consideration of the evidence, to ensure that there was a proportionate response to a gap in the law. There is general agreement that there is a gap in the law in respect of direct discrimination, and the evidence shows that extending protection to direct discrimination addresses the vast majority of intersectional discrimination cases. For businesses and organisations that are complying with existing discrimination law, this new provision will not require them to do anything more.

We have not, however, been persuaded that the same provision should be made for indirect discrimination or harassment. There is simply no indication that the existing law is failing to provide the necessary protection. Although we are very grateful to the citizens advice bureaux for their assistance in this matter, the scenarios that they raise-the noble Baroness, Lady Howe of Idlicote, referred to these-do not suggest otherwise, and to extend the provision to these areas would place a significant additional burden on businesses.

Amendment 42 would extend the law by introducing indirect dual discrimination. This would mean that all businesses and organisations would need actively to consider the impact of their provisions, criteria and practices on all 21 combinations of characteristics. In addition, the amendment would include marriage and civil partnership, a protected characteristic where there is no evidence that the existing protection is inadequate. This would mean that the coverage of indirect and direct dual discrimination would differ and would increase to 28 the number of possible combinations upon which employers and businesses would have to assess the effect of their policies and practices. The result would be contrary to the goals of simplification and harmonisation and would impose a disproportionate burden, given that there is no evidence of need.

Amendment 56 seeks to include protection from intersectional harassment in the Bill. As with indirect discrimination, there is no evidence that a remedy is lacking and therefore no basis to extend the law to include a provision for intersectional harassment. Unlike the prohibition of direct discrimination, the prohibition of harassment is not expressly comparative, and conduct involving a combination of protected characteristics is more likely to satisfy the standard of being "related to" each characteristic, even when considered separately. Moreover, because the associative definition of harassment used in the Bill eliminates any element of causation,

13 Jan 2010 : Column 547

harassment is not susceptible to the same problems of proof as direct discrimination. As with indirect discrimination, there is simply no problem necessitating further legislation.

Finally, the harassment provision that is proposed permits unlimited combinations of protected characteristics and therefore also goes significantly further than the approach adopted in Clause 14, imposing costly burdens and resulting in confusing discrepancies, again contrary to the Bill's aim of simplification and harmonisation. I recognise that indirect discrimination and harassment could occur on an intersectional basis, as some noble Lords have said, but there is no equivalent gap in the law, no evidence of a problem in practice and therefore no justification for new legislation. Based on consideration of the evidence available, Clause 14 is a proportionate response to a specific gap in the law, providing the necessary remedy without placing an undue burden on businesses and organisations. If there is any uncertainty as to the type of conduct or protected characteristics involved, nothing in the Bill would stop someone bringing more than one claim-as the noble Lord, Lord Lester, said-as is currently the case. However, extending the law further to include indirect discrimination and harassment would result in an unnecessary and disproportionate increase in the cost and complexity of the law.

Amendment 34 seeks to remove Clause 14(6), which empowers Ministers to specify further what a claimant does or does not need to show to prove dual discrimination, or to prescribe additional circumstances where this clause would not apply. It is necessary to include this power because dual discrimination is a new and untested provision. It is therefore prudent to provide flexibility to ensure that it is effective and to accommodate future changes in procedure. For example, Ministers might use the power if, in practice, it is thought necessary or appropriate to require claimants to adduce evidence relating to each protected characteristic in the combination, or if exclusive jurisdiction regimes were created for other types of discrimination in addition to that which is excluded by subsection (5). As the exercise of this power results in amending the Bill itself, any use of it is subject, under Clause 197(2), to the affirmative procedure. Prohibiting dual discrimination is a forward-thinking step on which we can all agree, and it preserves our place as a world leader in the fight against discrimination.

The noble Lord, Lord Low, asked me a specific question relating to disability. However you satisfy the definition of disability, it will only ever constitute a single protected characteristic for purposes of dual discrimination. I hope that that is clear.

I ask the noble Baroness to withdraw the amendment.

Lord Lester of Herne Hill: I am sorry to mention this now, but I do so so that one can think about it later. Going back to the point which the right reverend Prelate rightly raised, the real problem arises in Clause 26(1)(b) with the word "or". The problem is that when the Government implemented EU law, their gold-plating was such that, whereas EU law allowed

13 Jan 2010 : Column 548

them to say "and" in the employment field, they said "or". The problem with saying "or" is that it means that there is harassment if,

rather than "violating B's dignity, and" creating an intimidating, et cetera, environment.

The result of "violating B's dignity" alone giving rise to harassment is that it gives rise to all the problems, to which the right reverend Prelate referred, of zealots who are unduly sensitive, and so on. I would wish to turn the clock back, if one can, and put in "and", both in employment and beyond. I know that officials know that that is my position, but I have not tabled an amendment.

Baroness Royall of Blaisdon: That has certainly given us food for thought for a debate on a later set of amendments, and we will return to that in due course.

The Lord Bishop of Winchester: Perhaps the noble Lord and I can make that amendment together at a later stage.

Baroness Howe of Idlicote: Would this be an appropriate moment, first of all, to thank the noble Baroness the Leader of the House for her very clear guidance on this? I will need to think about and discuss this, because I have to say that the evidence that the CABs have gone into-they are the practitioners on the ground, as it were-does need to be considered carefully and, I think, has been. I am also grateful to my noble friend Lord Lester-I call him that even though he is sitting on another Bench-for explaining how he initially reached the same view but was persuaded down another path. I now have a great wall to get over if I wish to take my amendments any further.

I am also grateful to the noble Baroness, Lady Warsi, who made some clear points. The noble Lord, Lord Lester, seemed to indicate that it is perfectly possible to bring a claim on any of the points, making it certain that the lawyers will bear them in mind and reach a conclusion on a combination of all of them. It has not always happened that way, but it may well be that if combined direct discrimination becomes part of the law, that will encourage lawyers to take a rather broader view of all the other points raised. I am very grateful.

Baroness Royall of Blaisdon: I suggest that I organise a meeting with officials on this issue before Report for the noble Baroness and the noble Lord, Lord Lester.

Baroness Warsi: I thank noble Lords, particularly the noble Baroness, Lady Howe, for taking part in this debate. The amendments that she tabled sought clarification from the Minister. I am grateful for the Minister's response and clarification and for some of the reassurances that I sought in tabling my amendment. I look forward to reading the codes of conduct which have now been published by the Equality and Human Rights Commission. I beg leave to withdraw this probing amendment.

Amendment 34 withdrawn.

Clause 14 agreed.



13 Jan 2010 : Column 549

Clause 15 : Discrimination arising from disability

Amendment 35

Moved by Baroness Warsi

35: Clause 15, page 8, line 22, leave out subsection (2)

Baroness Warsi:This amendment is designed to probe the balance of responsibility between an employer and an employee when dealing with disability. The Government have brought in Clause 15 to try to restore disability law to its status before the judgment in the case of the London Borough of Lewisham v Malcolm in 2008. By now we are all familiar with the details of this case, so I will not cover it in much detail now.

Suffice it to say that, famously, the judgment in that case reversed the definition of disability-related discrimination decided by Clark v Novacold Ltd.That judgment stated that a like-for-like comparison could not be made because such a comparison may not be appropriate in a disability case. However, in the Malcolm case it was decided that Mr Malcolm, who had schizophrenia, should be treated in the same way as any other tenant who had sublet his home, despite the fact that his lawyers argued that the subletting was caused by his schizophrenia.

There was general agreement that this judgment must be reversed in order to return disability law to its status before the judgment, and to how it was understood to operate before the judgment. We welcome the fact that the Government have attempted to address the issue with this clause and so to provide the degree of protection for disabled people that was originally intended. However, we would like to raise certain concerns, as we have seen that the Disability Charities Consortium is still doubtful about whether this goes the whole way to addressing its concerns.

For this reason, we have tabled Amendment 35. It removes Clause 15(2), which states that person A does not discriminate against disabled person B,

"if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability".

The Disability Charities Consortium is very concerned by this because it argues that the Equality Bill inserts a knowledge requirement that was not present in the Disability Discrimination Act 1995. It is concerned by this because the feeling is that the balance will be very difficult to create and maintain. It is obviously the case that employers cannot be expected to know everything about their employees, and nor would it be right for them to ask. However, there is also the risk, as raised by the Disability Charities Consortium, that employers may use this requirement to create a culture of ignorance in which they can be less than proactive in asking questions and finding out details about their employees in order to provide themselves with a defence.

6.15 pm

As the Minister said, this clause was redrafted on Report in another place,

We welcome many of the changes that have been made to the clause. These were in response to pressure

13 Jan 2010 : Column 550

from the Official Opposition and the Liberal Democrats in another place. However, the knowledge requirement remains. Can the Minister clarify that it is indeed a new provision, not a clarification? Can she inform the Committee how the best balance will be achieved and maintained so that employers and employees are aware of precisely where they stand in relation to the law? I beg to move.

Lord Lester of Herne Hill: It is extremely useful that the noble Baroness, Lady Warsi, has gone to such trouble to explain the amendment. The knowledge that she has given the Committee is most valuable. However I do not think that, on reflection, she would be in favour of her own amendment. The consequence of leaving out Clause 15(2) would be that, even if an employer did not know, and could not reasonably have been expected to know, that the alleged victim had a disability, there would nevertheless be liability. That would be wholly unreasonable.


Next Section Back to Table of Contents Lords Hansard Home Page