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The amendment on which I want to focus, however, is government Amendment 14. In Committee, as the noble Baroness has reminded us, I moved an amendment to add an additional reasonable adjustment requirement, to avoid the disadvantage caused by the provision of information in an inaccessible form. I pointed out that we had lost all reference to accessible information in the Bill. I was very gratified by the strong support that noble Lords gave my amendment both in Committee and privately afterwards. I place on record my appreciation of that support. The noble Lord, Lord Elton, put his finger on it when he said:

"The Committee needs to know how adding the same obligation to this statute will remedy the failure of similar provisions in

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earlier statutes. Is not some stronger measure or different approach needed to relieve this intolerable situation?".-[Official Report, 13/1/10; col. 558.]

The Government agreed to take the matter away and return to it today and this is the result. I believe that this is a case where the Government can genuinely claim to have listened and responded appropriately and I welcome the amendment wholeheartedly. I believe that this is the stronger measure that the noble Lord, Lord Elton, was calling for. It is not in exactly the form that I moved in Committee, but I believe that, to all intents and purposes, it gives us the requirement that I was seeking.

As I think the Minister recognises, this is potentially a major step forward for anyone with a print disability of any kind. Of course, as she said, a change in the law does not of itself change anything. However, the change that this amendment signals and potentially delivers will afford a much more solid basis for robust enforcement action by regulators, advocacy organisations and disabled people themselves. I believe that this is a positive outcome for which the Government can take real credit and I welcome it unreservedly. Businesses and public sector bodies now need to think carefully about what they need to do to comply with this duty and promptly take action, as I expect this duty to be vigorously enforced.

I turn briefly to the remaining amendments in the group. I tabled Amendment 60 for Committee, but, under pressure of time, I did not move it on the understanding that the Government would take it away and see if they could accommodate it. I am pleased to say that we have had constructive discussions and, as a result, I have now retabled the amendment. The intention is simply to put the universal understanding of the present law beyond doubt in statute.

As regards Amendments 20A and 44A, first, I need to point out that there are a couple of errors on the Marshalled List. Amendment 20A relates to line 25, not 35, on page 137, and Amendment 44A relates to line 14, not line 4, on page 193.

Secondly, I must apologise for the fact that they are late amendments. This reflects the fact that discussions are still ongoing. The amendments reflect the stage that I believe the discussions have reached. I have accepted the Government's formulation-"avoid the disadvantage"-in Schedule 2 but believe that it is necessary to spell out exactly what that means, because if we do not there is a risk that the intention to reproduce the current law, which everyone shares, is put in doubt. The issue is quite complex but I believe that the Government are now seized of the fact that there may be a problem and also that there may be a need to make changes to Schedule 15, on associations, to reflect those in Schedule 2. I wish to give the Government's continued reflection all possible encouragement in the hope that they will be able to return with the solution at Third Reading.

Baroness Thornton: My Lords, Amendment 4 in the names of the noble Baronesses, Lady Warsi and Lady Morris, is a recurring amendment, which we debated in Committee on 11 January. It would make an addition to the provisions in Schedule 1 for some people who experience depression. It would apply only to a person

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who in the past five years has had a period of depression that has had a substantial adverse effect on their ability to carry out normal day-to-day activities for a period of six months or more. It would enable them always to be treated as though that substantial adverse effect was likely to recur and thus meet the long-term element of the definition of disability.

The Government's position, which I set out on 11 January, has not changed. I am happy to set it out again today and to try to provide such further reassurance as I am able. We recognise, of course, that depression can have a profound effect on a person's life, but we do not consider that extending the Equality Bill in this way is an appropriate way forward to deal with that issue.

Paragraph 2(2) of Schedule 1 already provides for people whose impairment has fluctuating or recurrent adverse effects. That provision can, of course, help people with recurring periods of depression to benefit from the Bill's protection. If a person has experienced a six-month period of depression that has had a substantial adverse effect on their normal day-to-day activities and that effect is likely to recur, the Bill enables that effect to be treated as continuing. It would apply regardless of whether the previous period was within the past five years.

The relevant test of whether something is likely to recur has been held by the House of Lords to mean only that something "could well happen", rather than that it had to be "probable" or "more likely than not". This test is relatively easy to satisfy and so anyone whose depression could well recur would be covered by the provision as it stands.

If we accepted the amendment, it would result in some people with depression being treated differently from others who experience periods of ill health or impairment, which can also have substantial adverse effects. I think that we were right to suggest then-and I repeat it now-that any such different treatment might well have a stigmatising effect on people with depression, which would be a wholly unwelcome outcome.

The noble Baroness is right that it is often not possible to say whether someone has an underlying mental condition. I remind the House that we amended the definition in the 2005 Act, which we are carrying forward into this Bill, to remove the requirement for mental health impairments to be well recognised clinically and so increase protection for people with mental health problems. Of course, in this Bill we have extended protection to perception, so a person with a depressive condition who did not satisfy the Bill's definition of a disabled person would be protected if, for example, their employer discriminated against them because he considered mistakenly that the impairment was likely to recur. This would also cover situations where an employer acted as a result of a prejudice against the mental illness that he thought his employee had. Therefore, given the provision already in Schedule 1, we believe that it is unnecessary to make the addition proposed in this amendment.

4 pm

Amendments 20A and 44A in the names of the noble Lord, Lord Low, and the noble Baroness, Lady Campbell, address how the reasonable adjustment

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duty works in the context of services and functions where a physical feature puts a disabled person at a substantial disadvantage and seek to import some of the familiar language from the Disability Discrimination Act. One of the benefits of this Bill is that it simplifies and harmonises discrimination legislation. These amendments, which apply only to services and public functions, do not achieve that result. Might they be taken to imply that similar considerations should not feature in the world of work? I am sure that the sponsors of the amendments would be horrified at that suggestion. We are wary of unintended consequences. However, as the noble Lord, Lord Low, has implied in his remarks, this is what you might call work in progress, so we would like to give further consideration to this pair of amendments. On that basis, I ask the noble Lord, Lord Low, not to press his amendments.

Finally, in Clause 210, Amendment 60, tabled by the noble Lord, Lord Low, would define "substantial" for the purposes of the Bill. We use the word on a number of occasions in relation to disability provisions-for example, where we refer to people being at a "substantial disadvantage" for the purposes of the reasonable adjustment duty. The definition proposed by the noble Lord, Lord Low-

is the one that appears in guidance on matters to be taken into account in determining questions relating to the definition of disability and in the DRC's code of practice for employment and occupation. Both of these support people working with the Disability Discrimination Act and we would expect identical references to appear in the statutory guidance that will support the Bill's introduction. We consider the case law to be settled and clear.

The motive behind the amendment-to ensure legal certainty and to ensure that "substantial" can continue to be read in the widest possible terms-is understandable. We have been told that the consequences would be catastrophic for disability discrimination law if the courts were to interpret the word differently from the way in which they have hitherto and thus raise the threshold before the protection is assured.

While we do not anticipate the potential future difficulties that the noble Lord, Lord Low, and his legal advisers fear, for the reasons that I have set out briefly, we are minded to move to address the considerable concern that they have expressed and to put the matter beyond doubt. On that basis, the Government will accept the noble Lord's amendment.

Baroness Warsi: My Lords, I thank the Minister for her detailed response. I also listened to the detailed response given to my amendment by the noble Lord, Lord Low. In those circumstances, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 8: Marriage and civil partnership

Amendment 5

Moved by Baroness Coussins

5: Clause 8, page 5, line 27, leave out "marriage" and insert "marital status"



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Baroness Coussins: My Lords, the amendments in this group all seek to achieve the same, specific objective: to give the same protection from discrimination in employment on grounds of being married or in a civil partnership to all people who might suffer discrimination on the ground of their marital status. In other words, anyone who is unfairly discriminated against by an employer or prospective employer simply because they are unmarried, widowed or divorced should have a legitimate complaint of unlawful discrimination in the same way as a married person currently does.

These are the same amendments that I brought forward in Committee but which I withdrew because the Government argued that the evidence was not strong enough to justify their acceptance. I should like to try again to convince the Government that these amendments are important and should be incorporated into the Bill.

There are three main reasons for this. First, the purpose of the Bill is meant to be to harmonise protection and to strengthen and extend protection in certain circumstances. For example, the provisions on age discrimination are being extended and new provisions on gender reassignment are being introduced. The marital status gap is an obvious loophole, which has needed plugging since 1975 when the Sex Discrimination Act first came into force. Employment practices and social norms and expectations have changed since then and discrimination against married women in the workforce is much less of an issue than it was, but the Government, rightly in my view, have decided to retain and not abandon protection from marriage discrimination in case its removal should have the unintended consequence of triggering the revival of unacceptable behaviour. The Government should also take the opportunity to extend similar precautionary protection from marital status discrimination across the board. That would be in line with the overall strategy of the Bill, which I do not think was ever meant to be just a tidying-up exercise to consolidate the dozens of different pieces of disparate equality law.

Secondly, I am concerned that in an economic climate for employers of serious cost-cutting and cutbacks it is quite possible that certain work-related benefits might be targeted and subject to just this sort of discriminatory revision. New and often subtle ways of discriminating might well creep back or emerge. No one, of course, would be able to get away with refusing, let us say, relocation expenses to a married employee, but an employer might lawfully decide, if the Bill remains as it is, to save a bit of money by saying that single employees were no longer eligible for relocation costs. Other ways in which single people could face marital status discrimination might include through not being entitled to the same terms of compassionate leave as married employees, being required to work shifts or unsocial hours or being required to work on days, such as Christmas Day, from which married people were first in line to be excused. These examples would not be money-saving for an employer but they are examples of the type of practice that used to be common and might easily be revived if the message of a piece of flagship new legislation from the Government is that only married employees continue to deserve marital status protection at work.



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Thirdly-I hope that this part of my argument might persuade the Government to think carefully about accepting my amendments-marital status protection is already the accepted norm or status quo for very large numbers of people. It might not be enshrined in the Sex Discrimination Act but it is what most people assume already exists. Hundreds of thousands of employees in this country work for companies or organisations with their own equal opportunities policies, where marital status is included in the list of criteria and where discrimination is prohibited. It is always the case that marital status protection applies to all employees, not just the married ones.

In Committee I cited a few examples of prominent employers from the public, private and voluntary sectors where this is the case. I have investigated a bit further and have found many dozens of employers who include marital status in their equality policies. I cannot find a single one that has a policy to protect only married people in the way in which the Sex Discrimination Act does and this Bill now proposes to continue. In particular, I hope that the Government will pause to ask why a policy of across-the-board marital status protection is good enough for the 524,000 people who work in the Civil Service and the more than 2,000 people who work in both Houses of Parliament but for some reason is not appropriate to include in the legislation for everybody else.

It has been suggested to me that there may well be situations where an employer legitimately and fairly needs to discriminate against a person on the ground of their marital status to preserve standards of good governance or ethics-for example, to avoid having a cohabiting couple being co-signatories to a bank account. That is a fair point, but it would apply equally to a married couple and I cannot accept that it is a barrier to doing the decent and logical thing in this Bill. After all, if employers such as Marks & Spencer, BP, Britvic, Oxfam and a plethora of local authorities and police forces, not to mention the entire Civil Service, have managed to find ways of dealing with such situations within the context of a fully inclusive marital status policy, these kinds of problems are clearly not insurmountable. Appropriate management procedures would be able to deal with them and this should not be an obstacle to taking a principled stance on discrimination in the legislation.

Without my amendments, the Bill would send a negative message to employers and there might be a risk of retrenchment within existing equality policies at the expense of people who are not married but who should in my view be equally protected against discrimination on grounds of marital status.

If the Government are reluctant to accept my amendments on the ground that they take the existing law further than the status quo, I respectfully suggest that the status quo against which they should be looking to measure is the status quo of existing good practice. Our equality law should surely reflect and encourage that, not undermine or undercut it. Could it really be right in the 21st century that an employer should be able to refuse promotion to a widower with dependent children because of an assumption that he has too much on his plate and cannot take on any

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extra responsibility? Could it be right in the 21st century that a backward-looking employer could lawfully refuse to employ a divorcee simply because he or she is divorced?

I was talking only last week to somebody who said that it had crossed her mind when she applied for a head teacher's post that being divorced might just count against her. If it had, she would not have been able to put her finger on the discriminatory point or process, because this is exactly the kind of discrimination that takes place and operates under the radar. That is one reason why there is such a lack of evidence in terms of case studies. If this were in the law, at least it would get a mention on training courses in recruitment and selection procedures, so that people would see that a marker had been put down and know that they had to avoid such discrimination, which would be unlawful. I really do not believe that it is right for the Government to pass up what has been described as a once in a generation opportunity to put equality law in order.

Finally, I reassure noble Lords that my amendments are not in any way anti-marriage. They simply seek to apply the same standard of protection consistently to all people, irrespective of marital status. I beg to move.

Baroness Afshar: I speak in support of this amendment, because, in many cases, particularly among minority groups, there is a strong tendency to discriminate against women on grounds of marital status. Very often, in a misplaced understanding of honour, single women are not accepted to front-desk jobs, because it is thought that that would be dishonourable. Divorced women are seen as inappropriate in their marital status and are therefore likely not to be accepted. Widowed women are sometimes seen as bringing bad luck. It seems to me that, unless and until we make marital status one of the grounds that should not be a barrier to employment, all kinds of misunderstood ideas of good luck, honour or respectability could bar the way to women who are often desperate for work, particularly if they have lost their husbands. It is very important that we protect them.

Baroness Howe of Idlicote: My Lords, I spoke to this amendment in Committee. Having listened to the extremely detailed and eloquent speeches of the noble Baronesses, Lady Coussins and Lady Afshar, who I think originally proposed the amendment, I really cannot see why there should be any difficulty in accepting this amendment. I hope that the Minister will be able to give us some hope that it can be accepted, because when one looks at the situation in different countries as well as in this one-and we have a range of different nationalities now in this country-one realises all too well just how much marital status does matter as far as jobs and opportunities are concerned.

Baroness Finlay of Llandaff: My Lords, I would like to comment on this amendment, to which I have added my name. Both my noble friends Lady Coussins and Lady Afshar have spoken about women and the reasons behind this amendment, but I remind the House that men, too, could benefit from this amendment, particularly widowers. Widowers can find it hard in society, particularly if they have young children. Value

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judgments are often made about them or against them. A man may be competent and ready for promotion or to apply for another job, yet subtle value judgments are made if he is also caring for bereaved children. The situation is worse if there are issues around the nature of the bereavement. Bereavement is a stigmatising experience in some parts of our society. It can be difficult for the children, but it can also be difficult for the man who is left caring. It is for those men, as well as for the women whom we have been addressing in this amendment, that I ask the Government to make sure that everybody, irrespective of marital status, is on an equal footing in law.

4.15 pm

Baroness Butler-Sloss: My Lords, I had not intended to speak, but I was impressed by the speeches we have just heard, particular that of my noble friend Lady Afshar. I have some knowledge of the problems that have occurred for Muslim women. The thought that they could be disadvantaged in English working surroundings, as they are disadvantaged in other parts of the world, leads me to believe that the Equality Bill is not covering an important minority group in this country. I also agree with the point made by my noble friend Lady Finlay of Llandaff because men have particular problems when they are widowed with children. The Muslim minority group deserves to be helped in this way.

Baroness Thornton: These amendments to Clause 8 replace marriage with marital status so that people who are unmarried, widowed or divorced would be protected by the Equality Bill. The amendments to Clauses 13, 19 and 25 are consequential to the amended Clause 8.

I regret to say that I am probably about to disappoint some of my favourite Baronesses. I apologise for that, but I hope I can convince them that we do not think this is necessary. I listened closely to the arguments when we debated these amendments in Committee. Since then, I have had the opportunity to consider these arguments. I know that my noble friend Lady Royall has listened to further representations from the noble Baronesses, Lady Coussins and Lady Finlay. It is clear that all the noble Baronesses who have spoken are committed to the cause of equality and want to ensure that people are not treated unfairly. We understand their concerns, and that is why we introduced the Equality Bill.

However, in the previous debates and the discussion today, I have seen nothing to convince me that discrimination by employers against unmarried people, widows, widowers or divorced people is a real issue occurring in Britain today that needs to be addressed by the Bill. We consider that the potential scenarios presented as a justification for these amendments are covered by existing provisions in the Bill relating to gender and, possibly, age discrimination.

The noble Baroness, Lady Coussins, spoke about companies and, as ever, she has researched the points she put to your Lordships' House. Some companies cover marital status in their equal opportunities policy. The law bans discrimination because of marriage or civil partnership, but there is no evidence that people

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are being discriminated against because they are single, widowed or divorced. Some businesses may choose to present their policies as being inclusive of all their staff, and we think that is good practice that we do not want to discourage. However, we do not believe that that is an argument for a need to change the law to protect against discrimination. We do not believe that discrimination by employers against people because they are married is a significant problem either, as demonstrated by the evenly balanced response to the Discrimination Law Review consultation and by the lack of representations since then on this issue by the public or organisations. However, we decided to retain the existing protection not just to ensure that the type of conduct it was introduced to outlaw in 1975 does not reccur, but because we know that this protection has been used in cases as recently as 2007.


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