§ 7.20 p.m.
§ First Secretary of State for Employment and Productivity (Mrs. Barbara Castle)
I beg to move, Amendment No. 17, in page 4, line 12, leave out from ' years ' to ' before ' in line 14.
As those of us who have studied the Bill know, the Clause as it stands allows tribunals to award payments of arrears of remuneration or damages up to a maximum period of two years, where a women is found to have been entitled to equal pay, with discretion to award less than this maximum in certain cases. The Amendment has the effect of removing that discretion. I suggest that the Amendment is an act of unexampled fair-mindedness unequalled by any Government.
An identical Amendment was moved in Committee by my hon. Friend the Member for Wolverhampton, North-East (Mrs. Renee Short). It was discussed in Committee and negatived, and no promise was, therefore, made that we would reconsider the matter or bring it again before the House on Report. There was argument on what exactly would be the effect of the Amendment, and I am not sure that the hon. Lady herself was entirely clear.
Since then, we have been thinking about this again, on our own initiative, and have decided that it would be right not to give the tribunal discretion to award less than the two years' entitlement where it exists. In reaching this view we had in mind the maximum period of arrears laid down in the Bill, two years, is less than commonly applies in civil cases where payment goes back to six years. What is more, we think it undesirable to open the door to employers who might plead ignorance of the law as a reason for not introducing equal pay. This would be dangerous.
The effect of the Amendment is that, where a woman ought to have been re 718 ceiving equal pay, the tribunal must award arrears up to a maximum of two years from the date when she commences tribunal proceedings. I am sure the House will welcome the Amendment.
§ Mr. Philip Holland (Carlton)
I am not sure what is the distinction between the tribunal awarding up to a maximum of two years and having discretion to award two years or less?
§ Mrs. Castle
There was some confusion in Committee, and that is why I tried to make the effect of the Amendment clear. The period up to two years for which the woman will be entitled to arrears will depend on the length of the employment during which she has not been getting the equal pay to which she was entitled. That is why the words " up to a maximum " are used. She might, for instance, have been in the job only for the qualifying six months, or a year. If it is established that she was entitled to equal pay during that period, she must be awarded the arrears.
§ Mrs. Renée Short (Wolverhampton, North-East)
I thank my right hon. Friend for making this concession. As she says, the Amendment was discussed in Committee and negatived; that does not mean that it was voted on and thrown out.
I was quite clear in my mind what I wanted the Amendment to achieve. I wanted to remove the arbitrary power given to the tribunal by the Bill as it stood to reduce the period as it saw fit. The Amendment means that the two-year period will not be altered, but that the tribunal will deal with every case on its merits. If the period of employment is less, that is all right. I see no reason why the tribunal should have power to reduce the period for its good reason which may not be to the advantage of the woman.
§ I hope that the House will accept the Amendment.
§ Amendment agreed to.
§ Mr. Albert Booth (Barrow-in-Furness)
I beg to move Amendment No. 44, in page 4. line 16, leave out subsection (6).
My purpose in moving Amendment No. 44 is to attempt to ensure that the Secretary of State will define the meaning of subsection (6) before we complete 719 Report stage. The subsection appears to be capable of several interpretations. It would not be stretching the accepted meaning of the English language to suggest that the subsection could be read to mean that any employer called before a tribunal will be deemed to be guilty of having failed to comply with the requirements of the Bill unless he proves his innocence. In my wilder trade union optimism I first read the provision in that way, but in the cool light of dawn I thought that I ought to question that interpretation.
The second point that should be defined is what is meant by the first part of the subsectionWhere a question arises whether a woman is or has been given equal treatment with men…Does this mean whenever a claim is brought before a tribunal? If that is so, the matter should be made clear, since it would follow that whenever a claim came before a tribunal the employer would have to prove that he is complying. Otherwise, it could be held that the question does not arise until some sort of prima facie case is established before the tribunal.
My third question involves whether the subsection is intended to define the grounds of a defence which the tribunal would have to accept and, if so, whether this is the only defence that could be accepted by the tribunal.
My last point relates to establishing whether the subsection could provide a loophole for an employer to enable him to pay considerably more to a male employee than a female employee on like work if he could show that there was any material difference whatever, other than a difference of sex, between the role of the woman employee and the role of the male employee. If that is the case, then the situation would be unsatisfactory for those who want to see the Bill work effectively. It would be better if the subsection were deleted from the Bill and we were merely to rely on the definition of equal pay in Clause 1. I hope my hon. Friend will be able to answer these queries.
§ The Under-Secretary of State for Employment and Productivity (Mr. Harold Walker)
Here again this matter 720 was dealt with at some length in Committee and some of these matters were raised then by my hon. Friend the Member for Barrow-in-Furness (Mr. Booth). I recall criticism of the opening phrase "Where a question arises…" on more than one occasion. In a later Amendment we have responded to these criticisms, and I will withhold until then my remarks on that matter.
I see from the proceedings in Committee that my contribution in elucidating the subsection was referred to by hon. Members opposite as an excellent explanation. I am not sure that I give frequent opportunity for such a comment, and I am now tempted to lean somewhat heavily on the remarks I made in Committee. However, I will eschew that temptation and will try, as briefly as I can, to explain the purposes of the subsection.
It is important to recognise that the opening phraseWhere a question arises whether a woman is or has been given equal treatment with men as required by an equal pay clause…uses the words "equal treatment". It is not a question whether she has established that she is on the same or broadly similar work, or is entitled to parity of treatment under the equalisation provisions of the Bill. That has already been established before she goes to the tribunal.
The subsection deals with the situation that may arise where a woman, having established her claim for equal pay beyond any doubt, finds that there is still a material difference between her terms and conditions and those of the individual with whom she has been able to establish parity. In that situation because of payment links, length of service, payment of merit money and other additions to remuneration, there may be legitimate reasons for the difference. The subsection will enable the woman in those circumstances to go to the tribunal. It is for the employer in such a situation to show that the difference in pay arises from a genuine material difference between her case and theirs.
I hope that I have made it clear that the subsection is necessary to deal with a situation that could arise. To eliminate the subsection, as my hon. Friend suggests, would make nonsense of the Bill. 721 Without the subsection, men and women on the same job would have to get exactly the same rate of pay regardless of the factors to which I have referred —factors which often separate man from man in the same conditions of employment. In view of that explanation, I hope my hon. Friend will withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.30 p.m.
§ Mr. Harold Walker
I beg to move Amendment No. 18, in page 4, line 16, leave out from first 'a' to end of line 20, and insert:'woman ought to be or to have been given equal treatment with a man as required by her equal pay clause, and he enjoys or has enjoyed by comparison with her any greater remuneration or other advantage, then it shall be for the woman's employer to show that this advantage is not the result of his '.
§ Mr. Speaker
I suggest that, with this Amendment, we take Opposition Amendment No. 19, in line 16, leave out 'question arises' and insert:'prima facie case has been established before an industrial tribunal as to '.and Government Amendment No. 20.
§ Mr. Walker
In replying on Amendment No. 44 I referred to the criticisms made in Committee of the opening words of the subsection as at present drafted. I gave an undertaking in Committee that we would look at these words to make them more clearly mean what I told the Committee they meant. I hone hon. Members opposite will accept that we have responded along the lines they suggested and have made the purpose of the subsection clearer by the addition of these words. Amendment No. 20 is a consequential Amendment.
To turn to the Opposition Amendment No. 19, this matter was dealt with at some length in Committee. I had hoped that the explanation I then gave made it clear that the question of whether a prima facie case had been established before the industrial tribunal dealt with a reerence was irrelevant and redundant. The prima facie case would have been established by virtue of the prior requirement for the woman to have established her claim for equal pay. The subsection 722 deals only with a situation where a woman having established her claim is not receiving equality.
Before entertaining a case under the subsection, it would appear that the tribunal would have to be satisfied that the claim for equal pay under the other provisions of the Bill had already been established. I do not wish to go over all the ground covered in Committee, but I shall listen with interest to see whether the hon. Member for Warwick and Leamington (Mr. Dudley Smith) has any new arguments to cause us to look at the matter again.
§ Mr. Dudley Smith (Warwick and Leamington)
We are always pleased to see improvements made to any Bill, particularly this Bill. I should like to thank the hon. Gentleman again for looking so considerately at the matter again, for taking the provision back and rewording the passage. Great objection was raised in Committee to the opening phrase "Where a question arises…" and am glad that the Government have removed that doubt. Their new drafting is clearer than was the previous one and is easier to interpret by those who will have to operate the Bill.
We still wish to put forward our own Amendment, Amendment No. 19, which has been allowed to be discussed with the Government Amendments. We believe that where possible there should be the utmost clarity in the Bill and that it should be spelled out to the individual. It is important that the provision should be clarified for the tribunal and those who appear before it, so that there should be a prima facie case established.
The object of our Amendment is to cut down on frivolous and malicious cases which might come before the tribunal, particularly in the early stages. Once this Bill is enacted I can foresee a whole rush of cases. I believe that the tribunals might be overburdened with cases. It is important that they should be able to select the wheat from the chaff and should not have great difficulty in deciding which cases need to be dealt with properly and which of them can be ignored.
Under the Bill an employer can be called upon to defend wholly unjustifiable and malicious charges. This would open up the opportunity to a small but significant minority of people, who could 723 be classed as mischief-makers, vexatious litigants, or someone with a grudge against an employer, to say, "I will take him before the Tribunal", thereby bringing about the opprobrium which would go with such an appearance, when in fact there was not a strong case on which to rest a claim. The employer would be placed in a difficult position.
I mentioned in Committee what happened in certain rent tribunals where feelings run very high indeed. In fact, pitched battles are fought out between one side and the other, and often the issue, whether the rent should or should not be reduced or a tenancy should or should not be preserved, is very much a side issue. We do not want these tribunals to become places where feuds can be fought out. We want them to be judicial in their approach. I believe that parties appearing before them, both employees and employers, should be seen in the same fair light by those who preside.
I realise that the Under-Secretary will not accept our Amendment, but I ask him to think again about it. There is still an opportunity, before the Bill becomes law, for him to consider whether he can go some way towards meeting us in establishing for the public at large that only genuine cases will be considered by the Tribunals. As my right hon. Friend the Member for Mitcham (Mr. R. Carr) said last night on a previous Amendment, we believe it is very important that the individual should understand clearly where he stands and what the law is.
§ Mr. Keith Speed (Meriden)
I intervene briefly to reinforce what my hon. Friend has just said. We thank the Under-Secretary for the better clarification of the words.
On the question of prima facie, I will not rehearse the arguments that I put in Committee. Suffice to say, everything that my hon. Friend has said about vexatious litigants and people who might wish to cause trouble by putting in frivolous or irrelevant claims is a possibility and the tribunals might be over-burdened by a large amount of work which would bring the whole system to a grinding halt.
If the Bill is to work we shall have to rely to a great extent on the good will of unions, of management, and, indeed, 724 of employees. If someone wishes to evade the provisions of the Bill, or any Bill—though the Bill is better through Amendments in Committee and on Report—there are various opportunities and channels through which evasions could be achieved. Therefore, it would be helpful, even at this late stage, if the Minister would consider again whether this point could be imported into the Bill.
§ Mr. Harold Walker
With respect and, I hope, with necessary courtesy, hon. Gentlemen opposite have not said anything new or in addition to the arguments that they deployed in Committee. I think that they still misunderstand the narrow purpose of this subsection. I am not sure that I would accept, but I could better understand, their arguments had they arisen under Clause 2(1), which deals with the broader front of access to the tribunals on the establishment of general claims for equal pay. However, this subsection deals only with the narrow area of possible claims before tribunals where claims have already been established to the same or broadly similar work. This subsection sharply narrows the possible scope for submission to the tribunal The only cases dealt with by the subsection will be those where, despite having established that case, a material difference in the conditions and terms of employment still exists. The tribunal will entertain a case under this subsection only where the claim for equal pay has already been established beyond any doubt.
I have little or no experience of the operation of rent tribunals, so I will not venture an opinion about the case law with which they have to deal. However, in the broad sphere of industrial relations we might more appropriately draw parallels with and look forward to the kind of precedental behaviour of tribunals that are already established and operating. In general, our experience of the rules of procedure which determine the way that they carry out their business, together with their good sense and experience, shows that they do not waste time on claims where no prima facie case has been made out.
§ Amendment agreed to.
§ Further Amendment made: No. 20, in page 4, line 23, leave out "theirs" and insert "his".—[Mr. Harold Walker.]