DISCRIMINATION BY WAY OF VICTIMISATION (Hansard, 18 June 1975)

§ Miss Richardson
I beg to move Amendment No. 8, in page 2, line 36, leave out 'against him'.

Mr. Deputy Speaker
With this amendment, we are to discuss the following:

§ Miss Richardson
The intention of the amendment is to deal with victimisation by third parties and with the operation of black lists against those who have instituted proceedings under the Sex Discrimination Bill or under the Equal Pay Act 1970.
I am sure that no one will deny the existence of black lists right across the board in all sorts of ways. They exist in employment, in the extension of credit facilities and elsewhere. It is no secret that people pass on information about whether an individual is considered a good and worthy person. It is a fact that that is what happens. Over the years various formulae have been sought to try to get rid of the existence of black lists. I understand that in the Standing Committee on the Employment Protection Bill there have been discussions about how blacklisting could be got rid of, and 1496 I know that the problem is to find a formula to do so.
With this amendment the clause would cover the eventuality that an employer, a Government Department, a credit company, a trade union or anyone else might victimise those who had complained against them under this legislation or under the Equal Pay Act.
In my experience, the classic example is that of those who offer credit facilities. They check the creditworthiness of applicants in a way which often amounts to snooping. There are companies which collect and compile information about people who apply for credit. What would happen if a person applying for credit had complained already about a credit company on the grounds of discrimination? His or her name could go on a black list. It is that that I wish to try to avoid. We all abhor this kind of blacklisting. If we have a chance through this legislation to stop up a loophole, I believe that we should use it.

§ Mr. Ronald Bell
I waited for the Minister to speak first but in a spirit of equality she defers to me. It seems to me that leaving out the words "against him" in these three sections would really bring Clause 4 outside the Long Title and, indeed, the scope of the Act, because it renders unlawful certain kinds of sex discrimination. When it is "against him" that is all right where the person has made a complaint against the respondent under the Act or the Equal Pay Act. But once it ceases to be against him it does not necessarily seem to be a case of sex discrimination at all and it would really be widening the Act to cover coercive provisions against people who happen not to approve of the policy of the Act but yet are totally opposed to sex discrimination. Therefore, it seems that, apart from being oppressive, this would not be in consonance with the intention of the Act.

§ Dr. Summerskill
I am grateful to the hon. and learned Gentleman for raising this point. I should explain that the victimisation provision in the Bill is a relatively new concept, although not wholly without precedent. There is an analogous provision in rent legislation. In drafting Clause 4 we sought to relate the victimisation closely to the original 1497 alleged discrimination, and did so by confining the concept of victimisation to a situation where X treats Y less favourably on the ground that Y has, for example, brought proceedings against X.
We must consider carefully before extending this definition of victimisation in the way proposed in the amendments. It is a fairly new, although I believe valuable, concept. However, my hon. Friend's amendments deserve consideration, and I should like an opportunity to look further at the points involved. In the circumstances, I hope that she will feel able not to press the amendments so that I can consider them before the stage in another place.

§ Miss Richardson
It gives me great pleasure to withdraw the amendments on the Minister's undertaking that she will look at them. I am most grateful for that and beg to ask leave to withdraw the amendment.

§ Mr. Bell
I beg to move Amendment No. 11, in page 2, line 42, to leave out from 'him' to end of line 4, on page 3.
My comments on this amendment are much the same. The amendment seeks to strike out paragraph (d) of clause 4(1). Paragraphs (a), (b) and (c) to which the previous amendment related all refer to discrimination which has occurred under the Act as it would then be, or the Equal Pay Act. Paragraph (d) goes much further and treats as victimised someone who has alleged that the employer, I suppose, or whoever it might be, has committed an act which would amount to a contravention of the Act. That is nothing to do with sex discrimination. The person complained against might be a man, an employer, and the person who makes the statement that X has done an act of discrimination could easily be another man. It could be anybody.
To bring in a sanction like this of X, the person of whom the statement is made, against Y who made it, is really a novel procedure in legislation. This means, in effect, that the provisions under the Act are being used for people who have a bias against someone who has said something adverse to them although there has been no question whatsoever of discrimination between those two 1498 people. I find this a most dangerous extension of legislative activity. Somebody disagrees with me, and he, for that disagreement and the antipathy arising out of it, shall be subject to penalties although there has been no question whatsoever of discrimination on the ground of sex between those two people.
I do not know whether this was thought through before it was done. It looks very much as though it was added on at the end, as a kind of attack on anyone who did not approve of the policy of the Bill. I hope that the Minister will realise the danger of this as a precedent. In previous debates this afternoon we have had quoted examples of things done under previous Acts like the Equal Pay Act and the Industrial Relations Acts and others where it is said "This may appear obnoxious but it has been done three or four times before". This will be the first precedent for something like this, and I regard it as constitutionally a very dangerous precedent. It is totally unnecessary for the purposes of the Bill.
I find it a little difficult to know how it got through the mesh, because it hardly seems to be inside the Long Title. I hope that the Minister and her advisers will give this careful thought, because we must not have oppressive legislation of this kind interfering with the ordinary antipathies, bias, prejudices, likes and dislikes of members of the community. The Bill is about discrimination on the ground of sex and nothing else. It should not go beyond that.

§ Dr. Summerskill
I have listened carefully to the hon. and learned Member for Beaconsfield (Mr. Bell). It seems that he is setting too little store by the safeguard provided in subsection (2), which provides that victimisation does not arise when one person treats another less favourably on account of allegations that that other person has made against him which are false and made otherwise than in good faith. The Government believe that this is a necessary safeguard and that it is sufficient.
Let me put two examples showing how the inclusion of subsection (1)(d) in Clause 4 will afford valuable and necessary protection. Suppose the Equal Opportunities Commission mounts a formal investigation into the activities of some firm and asks its employees about 1499 their employers' practices, for example with regard to recruitment or training. In good faith a foreman gives evidence to the commission which amounts to an allegation of unlawful sex discrimination by that firm. As a result he is promptly sacked. Without (d) that person would have no redress against the firm.
My second example also concerns employment, because it is here that the clause is likely to be of most effect having regard to the nature of the employee-employer relationship. A woman believes she has been discriminated against and takes up the matter with a trade union. The employer gets to hear of the allegation and victimises her in some way or another because of that. Without (d) Clause 4 might afford that woman no protection at all.
If the Bill is to make any impact on sex discrimination, men or women who feel that they have been discriminated against must not be deterred from asserting their rights or seeking advice and assistance. Nor must the EOC be hamstrung in its task of identifying and eliminating discrimination by a wall of silence which the threat of victimisation can so easily erect. I ask the House to reject the amendment.

§ Mr. Ronald Bell
The Minister has not quite got the point. I did not even refer to the safeguard that she has mentioned. I was aware of its presence. I wanted to focus attention on the main point which is the dangerous extension which this subsection constitutes. Let me deal with the points she has raised. She says that the person who has been dismissed because of the evidence he has given to the commission would not have a remedy under Clause 4. What does that matter? He has a remedy under the unfair dismissal provisions in other legislation. We do not have to have everything in this Bill. That is my objection. This has nothing to do with sex discrimination. Such a person would go to the industrial tribunal and claim that he had been unfairly dismissed. He could not fail.
If we look at the safeguards it will be seen that we are normally dealing with a case involving a false allegation. If the allegation is not false the employer will find himself in trouble. But he will have to prove that it was not made in 1500 good faith. That will be very difficult. How does he set about proving it? He has to prove that to extricate himself from the trouble he would be in under Clause 4(1)(d). This is nothing to do with sex discrimination.
First of all, such a person must prove that the allegation is false. One almost assumes here that the matter has not been adjudicated upon. That is normally the case. It would be necessary to prove that the allegation was made in bad faith. Malice is a difficult thing to prove because it requires a high standard of proof. In a case of dismissal or some such thing there is a remedy elsewhere. There is a remedy for ordinary breach of contract. Therefore, this special penalty, the pains and penalties praemunire, under the Bill is totally unjustifiable in relation to something which is not sex discrimination at all, and, therefore, it should not be covered by the provisions of the Bill.