|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
The Government believe that this will make the legislation much more accessible and straightforward. As a result, it will be easier for employers and service providers to understand and comply with their responsibilities and employees and customers will be more aware of their rights. We expect that more straightforward law will also enable the Equality and Human Rights Commission to draw up simpler practical guidance. The commission is starting out on this process even now. I would also like to draw the attention of noble Lords to the Explanatory Notes to the Bill, which have been drafted in a way that is intended to bring out as clearly as possible the effect of the various provisions, using practical examples to illustrate what the law will mean in practice.
If the Bill only consolidated the law, that would be beneficial but it goes much further than simply bringing together the existing law. It also strengthens it in ways that will benefit very many people. We need to strengthen the law because, despite the progress made in combating discrimination, inequality still persists. We have inequality of pay between men and women, with the latest gender pay gap put at 22 per cent; if you are disabled, you are two and half times more likely to be out of work than a non-disabled person; there is a 15.5 per cent gap between the rate of employment of black and ethnic minority people and the average employment rate; and Muslims have the lowest employment rates of all religious groups, with only one in four Muslim women and three in five Muslim men aged 16 to 64 in
15 Dec 2009 : Column 1406
Good though our record has been, we need to do more. That is what the Bill before the House today does. The structure of the Bill is broadly as follows. Part 1 places a new duty on key public bodies to take account of socio-economic inequalities when making strategic decisions. Part 2 contains the key concepts on which the Bill is based: the protected characteristics such as age, disability, race etc; and definitions of prohibited conduct such as direct discrimination, dual discrimination, discrimination arising from disability, harassment and victimisation. Part 3 prohibits discrimination and other unlawful conduct in the provision of goods, facilities or services and the exercise of public functions. Part 4 prohibits discrimination and other unlawful conduct in connection with premises. That would typically relate to landlord/tenant situations. Part 5 prohibits discrimination at work. It also contains the Bill's main provisions on equal pay as well as on publishing gender pay-gap information and making pay secrecy clauses ineffective.
Part 6 prohibits discrimination in education. Most of these provisions simply carry forward existing legislation. Part 7 prohibits discrimination in clubs and associations, including political parties. The Bill extends protection against discrimination in mixed clubs, for example of men and women. In such cases, it will not be lawful to treat some members less favourably than others, but the Bill does not abolish single-sex clubs or other clubs for people with a shared characteristic -for example, the Women's Institute, gay clubs or clubs for people of a particular race or religion.
Part 8 prohibits other forms of conduct, including helping someone or instructing someone to discriminate. These provisions are mostly carried over from existing legislation. Part 9 covers enforcement by courts and tribunals, including the wider power to make recommendations. Part 10 is about discriminatory terms in contracts and collective agreements. Again, these provisions are basically carried over from existing legislation. Part 11 sets out the public sector equality duty and contains provisions on positive action. Part 12 is about disability and transport. This is, I think, the Lady Chapman memorial part. It covers taxis, private hire vehicles, buses and rail vehicles. Its main effect is to make such means of transport accessible to disabled people. These provisions are also mostly carried over from existing provisions in the Disability Discrimination Act. Part 13 contains additional provisions about reasonable adjustments for disabled people in premises. Part 14 includes general exemptions. Noble Lords should note that the schedules deal with exceptions and reasonable adjustments in the various fields such as work, services, education and premises. Finally, Part 15 provides a number of general powers, including a power to harmonise the Act in future with measures required under future EU legislation.
I now turn to those issues within the structure of the Bill which seem likely to be the main areas of interest. Essentially, these are all measures to strengthen the current legislation. I begin with the new socio-economic duty in Clause 1. This duty is about ensuring that public bodies systematically and strategically take account of people who are poor and disadvantaged when they are making fundamental policy decisions. It is not intended to be a magic bullet that will do everything, but we believe that it will help, when combined with other measures that the Government have taken and are taking to help narrow the gap between rich and poor. I am pleased to say that the Bill was amended on Report in the other House so that this duty now also applies to Scottish as well as Welsh and English bodies.
On age, the Bill prohibits, for the first time, age discrimination in the provision of goods and services and the exercise of public functions. The relevant clauses are Clauses 4, 28 and 195. Even at the time of the Equality Bill 2005 there were calls for this to be done, and of course the Government are aware of the ever-increasing proportion of older people in the population and the need to ensure that they are treated fairly. The Bill provides this new protection which will ensure that people are not treated unfairly because of their age-for example, in receiving financial services, or in health and social care. Of course, we do not want to wipe out age-related concessions, rules and benefits that cause no harm-for example, free TV licences for the over-75s, winter fuel allowances for pensioners or free bus passes. All these things will continue and the Bill contains a power to make appropriate exceptions by means of secondary legislation. The Government have already sought views about exceptions that might be made.
The Bill also contains an expanded and integrated public sector equality duty. The relevant clauses are Clauses 148 to 156. We currently have three equality duties requiring public bodies to have due regard, when carrying out their functions, to the need to eliminate discrimination, promote equality of opportunity and foster good relations between different groups in relation to race, gender and disability, but these three duties are all slightly different and, consequently, public bodies have to meet different requirements that do not match up with each other. The Bill strengthens the law by bringing them all together and expanding them to cover, in addition, sexual orientation, age and religion and belief, and to apply fully to gender reassignment. This duty is all about providing better all-round services to the community and all its diverse members. It is not about favouring certain groups over others. I believe that this equality duty will be one of the most effective ways of combating institutional discrimination and putting the public sector at the forefront of efforts to secure equality.
On procurement, Clause 154 will ensure that public bodies use public procurement to contribute to the delivery of their equality objectives. Currently, public spending on goods and services, often in the private sector, amounts to around £220 billion per year. It seems only right to expect that this significant amount is used in a way that supports these broader social objectives.
On pay, the Bill contains important provisions that are designed to increase pay transparency. Nearly 40 years after the Equal Pay Act, we still have a gender pay gap. The Government believe that unless you can see a problem, it is impossible to tackle it. That is the reason why the Bill, in Clause 78, contains a power to require employers with 250 or more employees to publish gender pay gap information. The Government intend in any event to use their specific powers under the public sector equality duty to require public bodies with 150 employees or more to publish such information, not only about their gender pay gap but about the proportion of their staff who are from ethnic minority communities and the proportion of their staff who are disabled. The Government intend to bring in these requirements for the public sector from 2011.
For the private and voluntary sectors, which account for 80 per cent of employment in this country, the Government have said that the intention is first to encourage voluntary publication of gender pay gap information by the larger employers who would fall within the ambit of the power. The Equality and Human Rights Commission has been working with the CBI and the TUC on a methodology for collating and publishing the figures, and I am hopeful that agreement may be reached on this issue. However, if sufficient progress on publishing is not made by these private and voluntary sector employers by 2013, the Government have made clear that they will use this power to require such transparency. We believe that gender pay gap publishing will be a significant step towards reducing the gender pay gap. Women who want to join a business or public organisation have a legitimate interest in knowing whether their potential employer has a gender pay gap, and prospective employers will need to take note if they want to attract the best talent.
Also on transparency, the Bill makes clauses in employment contracts unenforceable if they stop people discussing their pay with colleagues. The Equal Opportunities Commission found in 2004 that 22 per cent of employers imposed employment contracts with such restrictions. This is not a means of requiring employees to broadcast their earnings to one and all but a sensible measure to help an individual find out what he or she is being paid compared with someone who is doing similar work, and to bring an equal pay claim if necessary.
On positive action, there are existing positive action provisions in current legislation, but these apply to different protected characteristics in different ways. The Bill extends what action is possible and covers all the protected characteristics in Clause 157. The Bill also extends the scope for positive action by employers when deciding whom to recruit or promote, at Clause 158.
Most of the attention has focused on Clause 158, which allows employers to appoint a member of a disadvantaged or under-represented group where they are as suitable for the job as somebody else. This provision has been much misrepresented by some sections of the press as a means of favouring women over men in job applications regardless of merit, for example. That is not the case at all. There is no automatic favouring of a person with a particular characteristic
15 Dec 2009 : Column 1409
As well as simplifying the existing provisions allowing training and encouragement of under-represented groups, Clause 158 itself allows, but does not compel, employers to recruit a person from an under-represented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. Take the example of a primary school wishing to recruit. We all know that there is a relatively low proportion of male teachers in primary schools, and we all also know that it is good to have male teachers as role models for young boys. If a primary school had two or more candidates as qualified as each other for a post and one of them was male, the school could choose him on the basis of making its workforce more diverse, without the risk of a challenge. I acknowledge that there have been some misunderstandings about what this provision does, but it is in fact a very sensible, and in some ways quite modest, provision which reflects developments in European case law in this area.
The Bill also provides stronger provisions on enforcement, in Clause 123. It will enable employment tribunals to make recommendations, in a wider range of discrimination cases that benefit the whole workforce and not just the victim of discrimination. Tribunals can already make recommendations, but currently only in relation to the individual who has brought the discrimination case. In 70 per cent of cases, that person will have left the firm with which he or she has been in dispute, so no recommendation can be made. That leaves a rather unsatisfactory state of affairs. On the one hand, the rest of the workforce may face continuing discrimination and, on the other, the employer may face further claims. The ability to make recommendations means that lessons can be learnt from the case and unfair practices can be addressed. As a result, they could help to lessen the likelihood of future cases. Recommendations will not be directly enforceable but may be taken into account in subsequent relevant cases. I believe that this is a sensible and proportionate measure all round.
The Bill will have an important effect, through its definitions of direct discrimination and harassment, of providing protection for those who, while themselves not possessing a protected characteristic, are associated with someone who does-for example, by being a carer. That reflects the recent so-called Coleman case of a mother of a disabled child who claimed protection under the relevant EU directive on the basis that while she was not disabled she was associated with a person who was. The European Court of Justice agreed that the relevant directive applies in such cases and the Bill has been drafted to deliver that protection. We have gone slightly beyond implementing the court's judgment. In practice, the Bill will protect carers who look after, for example, elderly people as well as disabled people against direct discrimination or harassment by their employer or a service provider.
The Bill will provide a new protection, Clause 14, against discrimination because of a combination of two characteristics, which we call "dual discrimination". The Government identified a gap in the existing law,
15 Dec 2009 : Column 1410
The Bill makes important improvements in protection for disabled people. In the other House, a new Clause 60 was added to deter employers from inappropriate use of "pre-employment questions" about disability. This amendment, like a number of others already mentioned, was directly in response to concerns raised during scrutiny in the other House; that is, employers were unfairly screening out disabled people right at the start of the application process, without giving them a chance to compete fairly.
A further improvement in disability protection is Clause 15, which is intended to restore the protection for disabled people that was provided prior to the Malcolm judgment. Disabled people should be protected not just because of their disability itself but also because of something arising as a consequence of their disability. For example, a pub landlady might refuse to serve a man who has had a stroke, as she thinks he is drunk because of the way in which he speaks. He is not refused service because he has had a stroke, but because he has slurred speech, which is something arising as a consequence of his disability.
Finally, the Bill requires landlords to make reasonable disability-related changes to shared areas in residential premises, such as entrance lobbies, when they get a request from a disabled tenant or occupier-Clauses 36 and 37, and Schedule 21. Such changes would be at the expense of the requester.
I should like briefly to deal with some of the myths about this Bill. It will not force gay youth workers on the churches; it will not abolish Christmas; it will not force employers to employ black women; it will not do middle-aged white men out of a job; it will not ban the wearing or display of religious symbols; it will not force councils to support gay clubs; and it will not provide tax-free breaks for scientologists.
One further accusation has been levelled; that the Bill has not received sufficient scrutiny before coming to this place. I have to disagree, although I can see that noble Lords opposite disagree with me. The Bill was scrutinised and reported on by the Joint Committee on Human Rights. Ministers gave evidence to the Work and Pensions Select Committee which reported on the Bill and to which the Government responded. The Public Bill Committee held four evidence sessions with around two dozen representatives and a wide range of stakeholders. It also interviewed Ministers. The committee then scrutinised the Bill for a further
15 Dec 2009 : Column 1411
I look forward to future debates on this Bill in your Lordships' House, not least because I recognise and pay tribute to the huge expertise and knowledge that exist on all sides of the House on the subject. I look forward to engaging with that expertise and to learning from it. This is a Bill with considerable ambition and wide potential benefits that will have a real impact on people's lives. It is a Bill which, I believe, will command widespread support. I beg to move.
Baroness Warsi: My Lords, what a pleasure it is to stand up today and welcome this Bill to your Lordships' House. On a personal level, it is a privilege to be leading these Benches, supported on the Front Bench by the noble Baroness, Lady Morris of Bolton, and the noble Lord, Lord Hunt of Wirral. I am proud that we have a better gender balance on our team than the Government have. This is an area of law which I have been involved in for most of my life, and around the Chamber I see noble Lords with much experience and expertise which should ensure a detailed and lively debate.
I am sure I am not the only one who feels that the Bill has been a long time coming. We first heard of the Government's intentions to bring in a single Equality Bill in their 2005 manifesto. We then waited until June 2008 for Harriet Harman to outline the Bill in the Commons, and until March 2009 for the Bill to be published. It will only be in 2010, at the sad end of a Government on their last legs, that we can hope to see a single Equality Act. Nevertheless, let us hope that this long period of delay has served only to whet the appetites of noble Lords for the scrutiny and debate which such a large and complex Bill will necessarily require, and in which your Lordships' House is so effective. I hope that the waiting has increased the anticipation and enthusiasm for the positive provisions which the Bill brings forward.
We are pleased, in particular, with the fact that the Bill will be used to consolidate the existing large amount of equality legislation. At the moment there are nine pieces of equality legislation, more than 100 regulations and more than 2,500 pages of guidance and codes of practice. It is of the utmost importance that if these pieces of legislation are to work and help improve the situation, both employers and employees understand their rights and responsibilities. Legislation on the statute book is all verywell but good intentions will come to nothing if they cannot be translated into action and protection in the wider world. We therefore support the simplification and consolidation, which is the main thrust and purpose of the Bill.
It is sadly the case that, even today, many people in Britain face discrimination because of their race, religion, gender, sexual orientation, age and background. Let me give a few short examples. According to figures from the Office for National Statistics on 12 November 2009, the mean pay gap between men's and women's average hourly wage for full-time work was still 12.2 per cent. We acknowledge that a lot of work has been done to reduce the gap but it remains far too high. Another example is shown by a recent survey by Rethink, the leading national mental health membership charity, carried out on more than 3,000 mental health service users. They found that half of respondents felt they had to hide their mental health problems and 41 per cent were put off even applying for jobs because of fear of discrimination from employers. There must be real action to bring this and other forms of inequality prevalent in our society to an end. We therefore look forward, as we have for some time, to working closely with the Government to help the Bill on to the statute book.
I have already spoken about our support for the consolidation that the Bill will effect. We also support the major extension that the Bill introduces; namely, outlawing age discrimination. We support those clauses so long as-I am sure that the Minister will agree with us-legitimate businesses are still protected. As we move forward into Committee we shall look for reassurances which I hope the Minister will be able to give.
There are parts of the Bill, however, with which we are disappointed. Despite the extremely long time that the Government have had to hone and perfect it, we are still looking at a piece of legislation that represents, for many who were hoping for a great Equality Act, a missed opportunity. Despite the fanfare from the Government, who claim to want true equality, meritocracy and fairness, we are concerned that the Bill will not address the real issues and root causes of these problems.
All would, I think, agree with her here. However, it is unfortunately true that this is very easily said but less easily carried out. We on these Benches think that it is important to ensure that there are real outcomes. We are not satisfied with impressive rhetoric and good intentions backed up only with empty promises. One cannot simply legislate for equality; the merits of a responsible Government's intentions can only really stand on their results. We are worried that some of the Bill's proposals will once again merely represent expensive box-ticking and bureaucratic processes that, however well intentioned, will cost much but achieve little.
The Government's proposals to deal with the gender pay gap, for example, would enable Ministers to make regulations requiring all private and voluntary sector firms employing more than 250 people to report their gender pay gap figures and to face possible fines of £5,000 for failing to do so. We are worried that this blanket approach, restricted not just to businesses found guilty at a tribunal, will place a large burden of
15 Dec 2009 : Column 1413
We see now that the Government have conceded that implementing these proposals might be costly, bureaucratic and difficult. There is some speculation that we might see proposals limiting the application of the regulations to companies with more than 500 workers rather than the original 250. I look to the Government for clarification. We are delighted that they appear to have taken on board some of our concerns and recognised the potential difficulties in their proposals.
Nevertheless, the strategy of simply raising the threshold for gender pay gap audits does not seem the obvious solution. Are the Government suggesting that the size of the company correlates with the size of the gender pay gap? If so, can they produce any evidence of it? Further, we see once again that the date for publication of the metrics has been pushed back. Can the Government confirm that we will see the metrics in January before we enter Committee?
|Next Section||Back to Table of Contents||Lords Hansard Home Page|