§ Mr. John FraserI beg to move Amendment No. 3, in page 1, line 18, at end insert:
'and(iii) which is to her detriment because she cannot comply with it'.
§ Mr. FraserThe purpose of the amendment is to clarify the definition of indirect discrimination. During the Committee stage an amendment was proposed by the Opposition, and carried, to delete the word "unfavourable" before the words "condition or requirement" in the first line of Clause 1(1)(b). It was apparent during the debate on that amendment that the term "unfavourable" had given rise to some confusion. What I hope the amendment will do is to give added meaning to the clause.
Perhaps I may show how the subsection would work with the amendment. That may be the best way of explaining it. Indirect discrimination must have a number of ingredients, and I will list them. First, indirect discrimination must consist of the application to men and women alike of a requirement or condition which they have to apply if they wish to obtain a particular benefit or avoid a particular detriment. There must be an ostensibly identical condition or requirement. Secondly, the conditions or requirements must be discriminatory in their effect. Whilst being ostensibly equal, they must be discriminatory in their effect. There are two elements to this.
The first is their effect upon women generally, in that a much smaller proportion of women than of men can 1492 comply with them and, hence, qualify. Secondly, there must be a particular victim of indirect discrimination, and she must, for obvious reasons, be one of those women who are unable to qualify for the benefits.
It was in not distinguishing these two elements of unfavourable treatment that the previous draft was deficient, and we hope that the present wording adequately clarifies the matter by using the term "detriment".
The third element of indirect discrimination is that the conditions or requirements must be unjustifiable. This has already been touched upon earlier in the debate. In other words, they must be such that when looked at objectively they are basically irrelevant to the question whether and to whom the particular benefit should be made available.
I hope the House will consider that the wording suggested is an adequate and perhaps better substitute for the word "unfavourable" which was deleted in Committee.
§ Mr. AlisonCommenting on the Minister's amendments, which broadly we support and favour, he has already been kind enough informally to illuminate me on a particular aspect of the clause which left me a little puzzled.
I have two questions to ask, one on the matter of intention, to which I have already referred in an earlier debate, and the other concerning the Equal Opportunities Commission in its wide-ranging and generalised surveillance of this field.
First, concerning intention, I understand that intention is not affected by the fact that the subsection has to be triggered oft by an individual case because it can still be shown that an employer adopted certain criteria for the job which would have the effect of disadvantaging an individual when that person actually applied. Since we are talking about the lay courts' interpretation, does not the repeated reference to "her", the individual, in the introduction to this subsection mean that logically and in law it could be demonstrated that there could not conceivably have been any intention—because "her" must have been an unknown individual—in advance? With the very individualising of this phraseology here, it could be 1493 argued in law that intention cannot be inferred from the effect upon an individual who has to produce an individual case.
The Minister has helped me a good deal already by pointing out that these generalised criteria which could be produced by employers may well have an individual effect, and it is when that individual effect arises that one can infer backwards that an employer really meant to discriminate against women the whole time. The individualising of the whole subsection in applying to her a requirement, and the situation in which the individual has to apply and complain, suggests that intention might be very difficult to prove and quite easy to defend.
Secondly, because the whole misdemeanour of indirect discrimination can arise only when an individual makes a complaint and shows that the particular practice is to her detriment, is it possible for the Equal Opportunities Commission, as it were, to go round looking for cases of indirect discrimination? No such case of indirect discrimination can arise unless an individual complains. The Equal Opportunities Commission can hardly go round the country looking at employment situations and saying "This is a situation of indirect discrimination in which the proportion of women who comply is considerably smaller than the proportion of men who comply. This is an employment situation in which it is difficult to see any justification for having a strength or a height requirement. But, still, no one has complained. No individual has shown that it is to her detriment. So really the indirect discrimination situation does not arise, and we cannot do anything about it." The commission might have to put up an agent provocateur, an individual woman to apply for a job and to be turned down, to show detriment to her individually before carrying on its general work of surveillance as to the prevalance of indirect discrimination.
Perhaps the hon. Gentleman will comment on those points.
§ Mr. John FraserFirst of all, the new drafting does not affect the previous meaning about intention.
1494 Secondly, the drafting is in individualised terms because the two subsections, Clause 1(1)(b) and Clause 3(1)(b), are intended to give effect to individual remedies, and it is of the nature of the thing that it has to be in individualised language, but I am advised that they are effective in providing the remedy.
The hon. Gentleman pointed out that intention is difficult to prove in individual circumstances. He is right. That is why I hope that the House will agree later that the burden of proof for intention shall shift to the employer. I agree that intention may be difficult to prove. I think that we make it easier by reversing the burden of proof.
As to the inter-relationship between Clauses 1(1)(b), 3(1)(b) and new Clause 1, I have to hazard a guess as to the way in which the Equal Opportunities Commission will go about its business. On past experience with race relations, time and time again there have been situations where the Race Relations Board and others concerned with race relations have not had individual complaints, and yet there has been cause for concern and their apprehended cause for concern has sometimes turned out to be justified, with trouble breaking out in an establishment even though there has been no individual complaint. For that reason, we cannot say how the commission will use the new clause, but it looks for practices and arrangements which in its opinion could give rise to a case under Clause 1(1)(b) or Clause 3(1)(b).
If it looks as though the commission is being given the power to maraud, the person against whom a non-discrimination notice might be served has adequate safeguards. He can make representations to the commission. It may be that the threat of a non-discrimination notice may cause a change of practice, but even if that defence does not work for him he has the right of appeal to the tribunal.
We think that we have the balance about right by giving the Equal Opportunities Commission the right to make investigations where in the past individual complaints have failed to put matters right.
§ Amendment agreed to.