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However, the crucial issue here is not just to make the tribunal process easier but to make it much more difficult for employers to ask health or disability-related questions in the first place, before a job offer is made. This is why the Disability Charities Consortium has stated that while they,
There are many reasons to bemoan the Government's new clause, which, while it is a welcome movement on the issue, addresses the issues only in a limited fashion. The Disability Charities Consortium has pointed out that it would take a very confident person with a disability to claim that they knew that the only reason for which they had not been selected for the job was their disability. I am sure that we have all in our time experienced the dejected feeling which comes from being rejected for a job for which we have applied. Would most around this Chamber acknowledge that that gives a pretty severe knock to one's confidence? In this position, there is a great risk that a disabled person, or a person with a mental health issue or HIV, may not have the confidence or may even feel that it would be arrogant to claim that the only reason for which they did not get the job was discrimination.
Furthermore, I am aware that there is considerable stress involved in taking a case to tribunal, in particular where it has to be acknowledged that it will be very difficult to prove the case conclusively one way or the other. The Disability Charities Consortium recognises the merits of the shift of the burden of proof so that employers must demonstrate that they did not use the question to discriminate. Nevertheless, the person with disability still has to take the case to court, and questions about disability in relation to employment are not as clear cut as those about, for example, marital status. The latter are easily defined as discrimination, but the former could be counted as having some relevance for the job. We are therefore entering a very tricky area and we do not think that the Government have come far enough forward on it. I wait to hear from the noble Baroness on this point.
There is the further difficulty that at least part of the problem is to do with the fact that if people with a disability know that questions may be asked, they might be put off applying for a job in the first place. Part of the problem, therefore, is not addressing cases which have arisen but the general perception held by many people with a disability-or to go further than our amendment, people with HIV or a mental health problem-that they will be severely disadvantaged in the job market if they are questioned about this issue.
A recent Rethink survey of more than 3,000 mental health service users showed that half of respondents felt that they had to hide their mental health problems, and that as many as 41 per cent were put off even applying for jobs because of the fear of discrimination by employers. This evidence is further underlined when one sees that the employment rate for people with mental health illness is just 13.3 per cent. I suppose that this is perhaps not surprising when looked at in conjunction with the survey of employers by the Chartered Institute of Personnel and Development, which showed that more than half of respondents would not even consider recruiting from the "core jobless" group, which includes people with drug or alcohol problems, a criminal record or a history of mental health issues.
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We have therefore tabled Amendment 69, which would go much further by making it much more difficult for employers to use pre-employment questionnaires in relation to disabilities. There would of course be cases where this is necessary; our amendment allows inquiries for the purposes of "reasonable adjustments" for the interview process, an anonymised written question to allow monitoring of disabled people, and for the purposes of positive action. The prohibition will not apply either when a question is necessary to ascertain whether an applicant would be able to perform a specific employment function. Against that background, I look forward to the Government's response.
We have also tabled Amendment 136A in this group, to give enforcing sanctions to the Equality and Human Rights Commission. The sanction would have a wide scope and give the EHRC a power to take action against employers without there being a need for a direct victim, which would allow redress for system breaches of the law. The sanction can therefore be used by the EHRC to send out a clear message to employers about their actions. However, it is also a sanction limited to use by the EHRC only and is not an additional sanction for individuals.
It was rightly pointed out in another place that there were no enforcing sanctions to add the weight of the law to our provision. I believe we have remedied this and I hope that is going to encourage a positive response from the Government. We acknowledge that, as it stands, Amendment 69 only addresses questions to do with disability and not health. As we have just been discussing, there is clearly a case for including health questions under the prohibition as well as those relating to disability. This is partly because, as we have seen in previous debates, the definition of disability can cause difficulty for those with mental health issues in particular. Furthermore, there is the issue of clarity, to which I referred earlier. It is difficult to separate a question about disability from a question about health. However, if both were covered, this would give businesses a simple direction and the flexibility to ask the questions that they need to and avoid those which they do not.
I say to the noble Baroness, the Chancellor of the Duchy of Lancaster, that I understand that we are going to have our photograph taken together. Excuse me for stressing this, but I am so thrilled that we now have such a senior Member back as chancellor. I am a previous holder of that great title. If I am allowed to digress for a moment, the noble Baroness may discover that she is now about the most senior person. When attending Privy Council she will take precedence over all the people in the Cabinet. If I am allowed to mention this, I remember the noble Lord, Lord Heseltine, standing at the head of the queue, waiting to go in, and I slipped gently in front of him. I shall never forget that. Anyway, I am not supposed to refer to things like that.
I mentioned a little earlier that the Government set up a new website, lastminuteamendment.com. At the eleventh hour, and I really do mean that, only yesterday, we were shown that the Government had published
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We welcome these amendments and their intentions. However, given that they were tabled at the last minute and although I did try to work a 24-hour day yesterday-much to the chagrin of my family-I have not had the opportunity to go through them in minute detail. We are going to accept these amendments for now, as we believe that they go a very long way to meeting our concerns. However, I hope that the Minister will accept that there may be outstanding issues in them which will require further scrutiny at a later date.
In responding to these amendments, can the Government say whether there are any other outstanding issues that they are still considering and whether we can expect further amendments? It may be an opportunity, as I so rudely referred to the new website lastminuteamendment.com, for us to be given some idea of what further amendments are going to emerge from the Government over the coming days. I beg to move.
Lord Lester of Herne Hill: My Lords, I am a little shocked by the noble Lord's speech as I had thought that being a Privy Counsellor and speaking on Privy Council terms involved a high degree of confidentiality and secrecy. What I have just heard seems to me to be a breach of those terms and also the most unwelcome reference to the seniority of the noble Baroness the Minister. I am not sure that it should not all be struck from the record.
However, I support the whole of the proper part of the noble Lord's speech, which I found wise and compassionate and to the point. I agree with what he has said. I would like clarification on just one point that he made. One of his amendments is to give the power to the Equality and Human Rights Commission to deal with persistent discrimination even where there is no victim. I do not have the last Equality Act in front of me, but my memory is that the power already exists for the Equality and Human Rights Commission to be able to deal with persistent discrimination in the absence of a victim, the commission only doing so. I hope that that the Box and the Minister agree with that. Having said all that, we are shoulder to shoulder.
Baroness Royall of Blaisdon: My Lords, perhaps I should speak to the government amendments now-and perhaps I should call the noble Lord my noble kinsman. It is getting terribly exciting. The government amendments were tabled on Friday. I recognise that that gives noble Lords very little time to look at them. However, as noble Lords will know, there has to be a clearing process throughout government. I apologise for the lateness of amendments and will try to give further notice in future. I shall speak now to Amendments 69A, 69B, 69C, 69D, 69E, 69F, 69G, 69H; 108R and 136ZD.
We introduced Clause 60 at Report in the other place to respond to concerns put to us by disability organisations. There was compelling evidence that disabled people are being discriminated against by having their initial applications rejected by some employers once they are aware of a person's disability. In addition, and as the noble Lord said, the widespread use of pre-employment enquiries can act as a deterrent for some disabled people making applications for work.
However, disability organisations continue to have concerns and have told us that Clause 60 does not go far enough. Since Report stage in the other place we have had conversations with disability organisations about what might be the best way forward. This set of amendments strikes us as being the best way. There are numerous amendments, but I will be brief.
Amendment 69A makes it an unlawful act under the Equality Act 2006 to ask health questions of all applicants except in prescribed circumstances and so enables the Equality and Human Rights Commission to exercise its existing enforcement powers in relation to this issue. It seems to me that these powers might be exercised most beneficially were the EHRC to identify evidence of a systemic breach of Clause 60(1). Amendment 69A extends the period during which only permitted enquiries can be made up to the stage of making a job offer, whether conditional or unconditional, or selection to a pool of successful candidates where the person recruiting is not in a position to make a job offer for procedural or other reasons.
We were persuaded that this is a more appropriate stage in the recruitment process at which to allow questions because of the two new exceptions which I will describe. We believe this strikes the right balance between the needs of employers to find the best candidate for the job and applicants not to be asked questions about their health that are not relevant to the job. Amendment 69B would permit someone recruiting to ask questions to establish whether an applicant is able to undergo an assessment involving, for instance, participation in a group physical exercise or demonstration of an applicant's ability to carry out a function that is intrinsic to working safely.
Amendments 69C and 69D would enable someone recruiting to ask questions to establish whether an applicant would be able to undertake an essential function of the job. In purely practical terms this makes sense. For example, a vacancy in a warehouse may require that the successful candidate be able to manually handle goods and operate a forklift truck as an essential function of the job. A person recruiting for work would want to establish that the successful candidate can carry out such tasks, with reasonable adjustments if necessary.
Finally, the consequential Amendments 108R and 136ZD ensure, respectively, that only the EHRC can enforce the unlawful act described in Amendment 69A and add a contravention of Clause 60(1), or contraventions that relate to Clause 60(1), to the unlawful acts to which Section 24A of the Equality Act 2006 on supplemental enforcement powers applies.
This is a balanced and comprehensive set of amendments, which I am pleased to note has the support of disability organisations and the EHRC. The noble Lord cited the comments of many disability organisations on Clause 60 as it stands. Since we tabled the new amendments, however, Rethink, the mental health charity, has said:
"The government's decision to introduce the amendment should put a stop to this discriminatory employment practice which deters so many people with mental health problems from applying for jobs. It could mark a turning point in equal opportunities".
"The Commission strongly welcomes the Government's amendments to prohibit the use of pre-employment questionnaires, except in prescribed circumstances. We also welcome powers to take action in respect of organisations which contravene this prohibition".
The noble Lord rightly said that disabled people should not be put off applying for jobs from fear of discrimination. We believe that the amendments that we are proposing today address those concerns and I have no hesitation in commending these amendments to the Committee.
It might be helpful if I responded to the noble Lord's amendments-or do noble Lords wish to speak before I do? I shall speak to the amendments tabled by the noble Baronesses, and then there will be further debate if noble Lords so wish.
I suggest that Amendment 64, tabled in the names of the noble Baronesses, Lady Warsi and Lady Morris of Bolton, is not required, as employment service providers are already within the scope of Clause 60; and that Amendment 65 is not required, as we have no evidence that victimisation is an issue where pre-employment enquiries are concerned. Victimisation is about acting against someone because they have made or supported in some way action under the Bill, but we cannot envisage situations where the fact that they had done so would be revealed in questions asked about health in recruitment.
Amendments 66 and 67 would restrict the situations in which a trade organisation may make health-related enquiries when making arrangements for deciding who to offer membership to. We are resisting this amendment because we do not have any evidence to suggest that trade organisations make use of these types of pre-applicant enquiries. In addition, we have no evidence that when they do make these types of enquiries they use the information gained for discriminatory purposes.
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Amendments 68, 69 and 136A cover similar territory and have similar objectives to the government amendments that I have moved. I would suggest that the government amendments do the job more thoroughly, if I may put it that way. But there are aspects of Amendment 69 that we do not agree with. We believe that it is unnecessary to legislate to require employers to specify why they are asking disability-related questions, how the information will be used and that there is no requirement to provide the information. We have ensured that the clause restricts opportunities for asking health questions to specified and legitimate circumstances. It is a matter of good practice if an employer wishes to clarify further the reasons why it is seeking the information.
We consider that it would be impractical to legislate to require information gained for health questions to be anonymised and kept separate from the application form. For example, small employers with no separate human resources department would not be able to anonymise disability-related information and keep it separate from interviewers. We believe that such a provision might be considered good practice and might be included in guidance and codes of practice on the Bill rather than in the Bill itself.
Baroness Knight of Collingtree: My Lords, in the name of consistency, and because the word "reasonable" always worries me and because it appears in these amendments, I ask the Minister if I am right in thinking that, for instance-bearing in mind what she said when she raised a certain case about a warehouse a little while ago-if a man came along to apply for a job as a bus driver, it would be reasonable or right to ask him if he had any connection or ever suffered from epilepsy? There are cases like that, which one can think of clearly, which would be reasonable-not barring him on his own health grounds but because he might, in exercising the job, be a danger to others. I think I am right in thinking that what the Minister said would make it perfectly safe and that the public would not have to lose their protection against such questions.
Lord Lester of Herne Hill: Before the Minister answers that, perhaps she will agree with me that "reasonable" is used throughout legislation as a legal test, but as a matter of fact and degree. It depends on the individual circumstances and is context-specific, so Ministers cannot be expected to answer questions about specific cases as though they were courts.
Lord Low of Dalston: As the Minister-indeed, the Chancellor of the Duchy of Lancaster-has said, these amendments have been widely welcomed by disability organisations including RADAR. However, RADAR raised a couple of areas in which it felt that further clarification would be helpful. I hope that the Minister did not cover these points in her long and
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First, RADAR asks what the intention is behind subsection (3) of Amendment 69A, which says that asking about health is not itself a contravention of a relevant disability provision but that relying on the information given could be. It is believed that it is to do with ensuring that disabled individuals can claim discrimination only if they have actually suffered less favourable treatment. It should not restrict the EHRC enforcement power, but it would be helpful if the Minister could give us clarification on that.
While it is agreed that employers should be able to ask questions related to the physical and mental requirements of the job, it is not thought that that needs to involve questions about disability or health. For example, for the post of a PE teacher, a school might ask applicants to demonstrate that they are physically fit enough, but it should not ask whether they have any specific impairments or health conditions that would limit their suitability for the job. Likewise, the post of a political adviser will demand the ability to cope under pressure. I am not sure how many political advisers have to do that, but there you are-it may be that sometimes they do. Again, it is thought that applicants may be asked for evidence of how they have coped under pressure in the past, but they should not be asked whether they have had bouts of depression, for example. An applicant for the post of pilot might have to show a minimum number of flight hours to demonstrate their physical capacity to do the job-for example, being able to see the flight instruments or communicate with the flight tower-without the need for specific questions about their sight or hearing. It may be that, in responding to these questions, the Minister will also be able to deal with the point raised by the noble Baroness, Lady Knight of Collingtree, about epilepsy. Anyway, I would be extremely grateful if the Minister could take these points on board in her wind-up.
Baroness Campbell of Surbiton: My Lords, I also strongly welcome the Government's amendments, again-I had better not make it a habit. I was going to ask for clarification on two points, but I think they have been covered by the noble Lord, Lord Low, so I will leave it and await the answers.
I too feel very strongly about this amendment, having gone through many interrogations from interview panels in the past. I would love to spend the time telling noble Lords stories of some of the questions I have been asked-your toes would curl-but another time.
Baroness Gould of Potternewton: My Lords, I did raise this issue at Second Reading as chair of the Independent Advisory Group on Sexual Health and
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