§ Order for Second Reading read.9.36 am
§ Ms. Jo Richardson (Barking)
I beg to move, That the Bill be now read a Second time.
I count myself fortunate in having drawn a place in the ballot for private Members' Bills. I had thought about whether I should move the Second Reading from the Opposition Front Bench, as I now occupy an august position there. However, I decided that as this is a private Members' Bill I would introduce it from the Back Benches. I then considered whether I should introduce it from the Back Benches and then nip round to the Front Bench to answer myself. I am glad to see that my right hon. Friend the Leader of the Opposition is present, and I hope that he will make a sympathetic statement.
I am doubly fortunate in drawing a place in the ballot, as this is the second time since I entered the House in 1974 that I have been lucky enough to so. On a previous occasion, I introduced what became the Domestic Violence and Matrimonial Proceedings Act 1976. It was a modest measure which helped battered women who suffered violence in the home. I was greatly assisted by the National Council for Civil Liberties. It has also helped me with this Bill. I was also assisted by the Lord Chancellor's Department as the Bill found favour with the Law Commission. This time, however, the Government have not volunteered any help. I hope that, when it receives a Second Reading the Government's draftsman will help to put it into its proper form.
I have been dependent once more on the NCCL for its great expertise and for the help with drafting that the lawyers it has been able to find have provided. I am indebted to it for the considerable work that it has done, especially in the past three months. We have drawn ideas and suggestions from many sources. They include the NCCL women's rights unit, the Equal Opportunities Commission—which has advanced much criticism of the way in which the Sex Discrimination Act 1975 and the Equal Pay Act 1970 have worked—the Trades Union Congress, some of its affiliated unions and the Labour party, which made a firm commitment to amend the Sex Discrimination and Equal Pay Acts in its manifesto al the recent general election. I have also been helped by the many women who have written to me about this issue and given me encouragement. The letters that I have received have been absolutely tremendous and very warming. I was heartened and pleased to receive a letter only a couple of days ago from the Greater London Council women's committee telling me that there is all-party support for the introduction of the Bill.
When people feel that the law is unfair, they are prepared to work to change it. All of us who have been associated with the Bill, including my hon. Friends, are committed to trying to change the law. None of us pretends that the Bill as drafted is perfect. It seeks to right many wrongs, but I have no doubt that there are some drafting defects in it. I have yet to read any Bill, whether it comes from the Front Benches or the Back Benches, that does not contain some drafting defects that can be put right in Committee.
581 As far as possible, we have tried to put the Bill into plain language. Not all Bills do that. I was interested to read a Home Office news release dated 1 December, which stated:Home Office wins 'plain English' award".The Home Office is one of the three Departments connected with sex equality legislation. I hope that it at least will welcome the plainer language in which we have drafted this legislation.
As the House well knows, private Members' Bills may not have as their prime purpose the spending of large amounts of public money, so I have been forced to leave out of the Bill some areas that I should like to have included, such as continuing discrimination in our social security laws and taxation. Also, I should like to have included the retirement age, which is at different levels for men and women. The official retirement age for men should be 60, not 65 as it is now. However, it is not possible to deal with that in the context of a private Member's Bill. I have therefore sought to cover those points by making it a duty of Government to ask each of their Departments to look at the legislation that already exists and legislation in draft to make sure that there is no discrimination in it. I hope that that will be one way in the next five years, which is the time limit that we have put in the Bill, of seeking to attain the objective of outlawing discrimination.
The first major Standing Committee on which I served in the House was that on the Sex Discrimination Bill. That Bill was a courageous attempt by the then Labour Government to make progress in women's equality, giving effect in Government terms to a number of attempts by private Members for some years before that. It was controversial. The Opposition, now the Government, fought against some of the provisions because they thought that they were unnecessary and went too far. My hon. Friend the Member for West Bromich, West (Miss Boothroyd) who was the Whip on that Bill, will remember that some of us on the Back Benches, notably my hon. Friend the Member for Wolverhamption, North-East (Mrs. Short) and three hon. Members no longer with us—the late Millie Miller, Maureen Colquhoun and Rod MacFarquhar—were always jumping up and down from the Back Benches to try to make the legislation tighter than the Labour Government had drafted it. We drew attention to many shortfalls that have turned out to be all too true.
People's attitudes have changed. We feel that the time has come to move on and make the legislation better than it was. Groups of people and individuals have become more frustrated at what they see to be an unfair and unwarranted limitation on their rights as individuals, and the continuing domination by men, confirming the traditionally accepted role of women as dependants and the inferior sex.
Not only women feel degraded. A growing number of men—not enough, I am sorry to say—are beginning to feel offended too and realise that there are inequalities against which they must fight if they want to talk genuinely about equal rights. Those rights extend at the moment to only 48 per cent. of the population, the 48 per cent. who are men. The remainder of the population—the majority —continues to be discriminated against in many areas.
Women are increasingly the sole breadwinners in the household. That is due to single parenthood, divorce or 582 widowhood. There are nearly 1 million single-parent families, almost exclusively headed by women. One in every 10 children now comes from a single-parent household. The traditional household of Tory mythology, with the male breadwinner, his dependent wife and two children, now accounts for only 5 per cent. of our population. For those who are married and have children, the woman's earnings are increasingly crucial in boosting the family income. Sixty-two per cent. of all married women work and 54 per cent. of married women with children work. Without their earnings, there would be three times as many families in poverty.
In spite of the Equal Pay Act, most women do not get equal pay. The Equal Pay Act covered women who could compare their job with that of a man, or that of a man doing broadly similar work. That is fine for people such as teachers, civil servants, doctors and others who, like us, count their job as a profession rather than simply as work. Women who work rather than have a profession are at a disadvantage because in the main they are paid much less for playing an equally valuable role and making an equally valuable contribution to society. Women who work in industries and services and whose work force is dominated by women have no men with whom they can compare their work, and they are condemned to a lower rate of pay. The employers continue to pay that lower rate.
The Equal Pay Act does not help at all. Because the procedures for testing whether discrimination has occurred are difficult under the Equal Pay and Sex Discrimination Acts, the question of deciding which one to complain under is crucial. For example, a complaint about equal pay before one gets a job would be made under the Sex Discrimination Act. A complaint about equal pay after employment has to be made under the Equal Pay Act. It is ludicrous that the two Acts are not fused so that everyone can understand what is happening. That is why my Bill, in effect, amalgamates both Acts and tries to use the spin-off effect of one upon the other. Thus the problem of deciding which Act to use would not arise. Legal opinion has long held the view that the two Acts should be fused.
The Bill will simplify the legislation and introduce the concept of indirect discrimination, which is in the Sex Discrimination Act but not the Equal Pay Act. That means, for example, that for the first time part-time workers will be able to claim as of right parity of their hourly pay with that of full-time workers. That in itself will represent a big stride towards equal pay for women.
Over the past few months the House has heard a good deal about the concept of equal pay for work of equal value. The Government were taken to the European Court for not introducing that concept into our laws. The Government then consulted a large number of bodies, hardly any of which—so far as I am aware—supported the way in which the Government proposed to introduce the legislation. They disagreed both with the content of the legislation—the way in which the Government viewed the concept, as translated into law—and with the fact that it was to be introduced as regulations rather than as an amendment to the existing legislation. However, we debated the regulations towards the end of July, before the recess, and they were carried. The concept of equal pay for work of equal value is extremely important to hundreds of thousands of women who cannot claim equal pay because there is no man with whom they can compare their work.
583 The regulations finally went to the House of Lords at the end of July. They then mysteriously disappeared from the Order Paper at the last moment. The hearts of the women's circles leapt. We thought that their Lordships had discovered that the regulations were no good and that they would be brought back again to this House. However, after the recess they were reintroduced into the Lords, only to disappear from the Order Paper again. They were finally reintroduced and passed last Monday. However, in speaking to the motionThat the draft regulations laid before the House on 6th July be approved",Lord McCarthy moved an amendmentthat this House believes that the regulations do not adequately reflect the 1982 decision of the European Court of Justice and Article I of the EEC Equal Pay Directive of 1975.That amendment was carried by four votes. The former Master of the Rolls, Lord Denning, said:I am not sure whether it would not be better to throw them"—the regulations—out altogether and make those concerned think again so that we get something clear and intelligible which ordinary people and ordinary tribunals can understand."— [Official Report, House of Lords, 5 December 1983; Vol. 445, c. 902.]What the Government have provided—and it will come into effect on 1 January — is unintelligible gobbledegook which will make it impossible for women to bring cases under the legislation in a meaningful way.
In clause 8 of the Bill, we have tackled the matter properly. We have set out simply and constructively how a woman can make a claim for work of equal value. There will be a number of different ways in which a woman will be able to show that her work is of equal value. She could rest her case on physical or mental effort, the training she has had, the stress that she undergoes, or the decision-making that she has to do. With the help of equality officers who would be appointed to help with the procedure, she would have a real opportunity to pursue her claim and make her employer give her equal pay for work of equal value. The procedure would be much simpler in every way, and I believe that women would benefit from it.
In the same area of low pay for women we have included provisions referring to homeworkers. Homeworkers are perhaps one of the most exploited sections of the community, and we probably do not realise the extent of that exploitation. We have tried to make it possible for homeworkers to claim pay equal to that of an employee working in a factory for the same firm. I am not an expert on homeworkers, but I understand that at present most of them have to regard themselves as self-employed. They therefore fall outside all the employment legislation and all the conditions which apply in an ordinary factory. Even if the Bill achieved nothing else, an attempt to end the exploitation of homeworkers would be of value.
§ Mr. Tony Marlow (Northampton, North)
I realise that the hon. Lady will not agree with me when I say that this is just one muddled measure in a muddled Bill, and that its effect would be to put a large proportion of homeworkers out of work. In using homeworkers, employers face considerable costs and difficulties. If they have to pay them as much as they would pay anybody else, they would not take them on. They will use the convenience of people who come to work.
§ Ms. Richardson
I do not understand what the hon. Gentleman means. If employers who had to pay proper 584 rates to homeworkers did not then take them on, presumably they would have to employ more people to do the same work. The hon. Gentleman is content to allow employers to continue to profit from paying scandalously low wages to people over whom they have no supervisory control. He said that I would not agree with him, and he was right.
The Bill is not only about women. It also seeks to correct some of the inequalities affecting men. I have already mentioned our difficulties about the retirement age. We have also included a statutory right to paternity leave. A growing number of men these days take a couple of weeks' leave when their spouse is having a child. We should encourage and applaud that trend. In most cases, the men have to take their annual leave, or part of it, or perhaps sick leave. No doubt some of my younger colleagues on both sides of the House have taken time off when their wives have had children. They have been lucky. They have simply had to tell the Whips what they intended to do. For most of those who are employed, it is not so easy. My friend, John Tilley, who used to represent Lambeth, Central, recently took two weeks off when his wife was having a child. He was able to do so without any loss of pay. Fathers should have a statutory right to be with their families, if they and the mothers wish it, in order to share in the birth.
The Bill tries to encourage a change of attitude and role. Under it, a mother who is returning to work will be able to swap her maternity leave with the father. If she wishes to return to work, or if it is better for her to return to work, he can assume her maternity rights and stay at home to look after the children.
§ Mr. Michael Howard (Folkestone and Hythe)
Perhaps the hon. Lady could help me with the provision in the Bill that provides for maternity leave. It is said to apply toa male employee who is the father of a child which is expected to be or has been born, or who is living with the mother of such child.If those people were not one and the same, could both claim paternity leave? If both of them could not do so, which one could? If more than one male employee was living with the mother at the time of the birth, would they all be entitled to paternity leave?
§ Ms. Richardson
That is a point that can be raised in Committee. There may be such cases, and they should be discussed in much greater detail. However, that is a matter for the Committee. The principle behind the clause is that the father of the child should have the right to have leave to be present when the child is born. To agonise about who is the husband and who is the father is irrelevant now.
The Bill reduces the qualifying period for maternity rights from two years to six months. At the time of the Employment Protection Act 1975, it was suggested that two years was too long a time for women to have to be in employment before being able to claim maternity rights. That has been proved to be true. Many women find that they are excluded from their rights because they have changed jobs. Therefore, we have reduced the period to six months. After all, under the present law, if they have changed jobs, they may be unable to claim, although they still need maternity pay.
I understand that the maternity pay fund has some reserves, because many women have been unable to claim. Therefore, it would not cost the Government much to 585 accede to my request. The Employment Act 1980 put great pressure on those women who wanted to claim that they should be reinstated in their jobs. The present procedure is extremely complicated, and militates against women returning to work when they want to do so. The number of times that they have to tell their employers that they are returning to work is ludicrous. The Bill tries to simplify that and to make the requirements much easier for them.
There is considerable discrimination in occupational pension schemes, and I have had to have a look at that issue with a fresh eye. It causes great resentment and hardship that the conditions for men and women are not the same. In all occupational pension schemes men can ensure that their widows benefit, but sometimes women cannot ensure that their widowers will benefit, although women have to pay the same contribution. Recently, I received a letter from the GLC.
§ Ms. Richardson
Yes, another one. I am a Member of Parliament for London. I hope that hon. Members will listen, because this is an interesting point. The GLC tells me that it has four women fire fighters and that they pay the same percentage of their salary into the occupational pension scheme as male fire fighters. However, under the existing scheme, which has been there for donkey's years, they are not allowed to nominate their husbands as the beneficiaries, should they be killed in a fire. However, male fire fighters can nominate their wives. The GLC has become concerned about that, and has taken up the matter. As recently as late November an exchange took place—I do not know whether it was in discussion or correspondence—with Lord Elton, Under-Secretary of State for the Home Department. Although Lord Elton accepted that it was unfair, he was reluctant to agree to a change, because it would affect other occupational pension schemes in the public service. Thus, the discrimination is widespread and should be dealt with. We have said that the Government should ensure that pension schemes do not discriminate against anyone.
§ Ms. Richardson
I apologise to the hon. Gentleman, but I should like to press on a little, because the Bill is complicated and it would be unfair to the House if I did not explain its contents.
§ Mr. Frank Dobson (Holborn and St. Pancras)
No explanation would get into the hon. Gentleman's crust.
§ Ms. Richardson
In addition to what I have already said, the Bill tries to tighten up loopholes in existing employment legislation. A decision in 1980 by the employment appeals tribunal laid down that a pregnant woman could not compare herself with a man in a sex discrimination claim. The woman in question at the time of the case claimed that she had been sacked because she was pregnant, and that she had therefore been less favourably treated than a man. Obviously, there is no such thing as a pregnant man.
§ Ms. Richardson
Some of my female friends think that if men were able to become pregnant they would 586 understand women's problems much better. However, pregnancy is a physical condition. From time to time men also suffer from physical conditions which necessitate time being taken off work. There is no justification for sacking a woman, or denying her employment simply because she needs time off work during her pregnancy. Men and women who are off work because of a physical condition should be treated similarly.
My next point may sound trivial, but it is important. The Bill puts an obligation on employers to display an approved summary of the Act on their premises, just as they have to display the Offices, Shops and Railway Premises Act and the Factory Act. I hope that that is a stride forward, which will enable women workers to know of their rights and duties. It also brings us into line with the 1975 EEC directive on equal pay.
We have also included a provision to ensure that British-based companies do not think that they can discriminate against foreign-based employees if their contract of employment with them was made in the United Kingdom. I understand there has been some abuse in that respect in the past.
The Bill outlaws discrimination in employment on the ground of homosexuality. There have been many disgraceful cases against both male and female homosexuals purely on the ground that they are homosexuals. No one can have any complaint about being denied a job because they are not qualified, or do not have the skills needed. However, to deny people the right to jobs purely because they are homosexual is wrong. The parliamentary assembly of the Council of Europe said in 1981 that member statesshould assure equality of treatment, no more, no less, for homosexuals with regard to employment pay and job security, particularly in the public sector.
§ Mrs. Anna McCurley (Renfrew, West and Inverclyde)
Does the hon. Lady think that there is a good case for knowing what the sexual proclivities of an individual are if he or she is to be a teacher in, for example, a residential school?
§ Ms. Richardson
Generally speaking, there is more danger to young girls from the sexual proclivities of hetrosexual men than there is likely to be from a few homosexuals. I am not saying that that is always right, but it seems to be wrong to take sexuality into account. If people misbehave, they misbehave, but such discrimination is a disgrace in the way that it is now practised and we propose to outlaw it by means of the Bill.
I thought that the goods and services provisions of the Sex Discrimination Act 1975 were pretty watertight, but although the Act makes it unlawful to offer a woman goods or facilities that are less favourable than those offered to a man, some companies ask still for a male guarantor. Do they do this when men ask for some goods or facilities for which a guarantor is required? Of course they do not. That is one other subtle confirmation of the attitude that women are either not to be trusted or are too stupid to be given facilities without the back-up of a man. I have in mind the number of women who come to my surgery to tell me about the difficulties that they are facing because of the debts that their husbands have accumulated and have left them to clear up. It seems that we are still living in the Victorian age if we require women to have a male guarantor before they are allowed to avail themselves of certain facilities. How, for example, does a one-parent 587 family, which happens to be headed by a woman, cope with this situation? Will she be required to go to her vicar or to a friend to explain that the mortgage company or the hire purchase company will not trust her and ask him to stand as a guarantor? This is ludicrous. It is a Victorian situation.
§ Mr. Patrick Nicholls (Teignbridge)
Does the hon. Lady appreciate that the only reason why a finance company or any other financial institution asks for a male guarantor is that it is more likely that a male guarantor will be in a full-time job and, therefore, will be more likely to discharge the responsibilities of a guarantor if called upon to do so? [Interruption.] If the hon. Lady is ignoring that reality, she is giving free rein to her feminist paranoia and ignoring the realities of life.
§ Mrs. Richardson
I did not hear everything that the hon. Gentleman said but I remind him that there are well over 3 million unemployed and that many of them are men. I hestitate to say that his point is stupid but it is certainly ludicrous.
§ Mrs. M. Beckett (Derby, South)
The hon. Member for Teignbridge (Mr. Nicholls) clearly has no experience of the situation that he described. Having been asked in the past to provide a male guarantor, I can assure him that no inquiry is made—[Interruption.]— about the status, the income or the employment of the guarantor. It seems that to be a man is considered sufficient.
§ Mr. Deputy Speaker (Mr. Paul Dean)
Order. I am finding it difficult to hear. There is a great deal of noise in the House.
§ Mrs. Richardson
I think that an entire speech could be devoted to discrimination against girls at school, which is continuing still, and the facilities that they are offered within the curriculum that is provided. Boys are still offered football and girls are still offered netball. Boys take design and technology courses—I am talking about most schools but not all — while girls take home economics. Perhaps we have not included sufficiently effective provisions in our sex equality legislation properly to tighten practices within education. I hope that we shall have the opportunity carefully to consider the matter in Committee. There is much experience upon which we can draw from teachers and others and there are many ideas to discuss and consider. I hope that strengthening amendments will be tabled.
Discrimination starts at home and it is taken up in schools. If girls and boys are confirmed in the roles that society traditionally sees them playing by the sort of subjects that they are offered, girls will have fewer opportunities for jobs in what are regarded as male-dominated industries. They will be confirmed in their traditional role as home carers, undertaking home economics, with cooking and the kitchen sink as the main things in their lives. We all want attitudes to change but that is something for which we cannot legislate. However, we can say that girls should have equal opportunities with boys at school.
It is appalling that so many schools discourage girls, when they reach the age of 12 or 13 years, from continuing with maths and physics. Those subjects are crucial if one is intent on gaining entry into some jobs. I have heard —I do not know how true this is—that in some schools 588 the standard of marking for girls is more stringent than the marking for boys, making it almost impossible for them to complete the course. Boys are pushed and encouraged into the more technical pursuits and girls should be similarly encouraged. This would give them better opportunities at work.
A more positive attitude in the education sector could break down job segregation. The Sex Discrimination Act 1975 allows employers to recruit women for training in particular work and to give existing women workers special training, but makes it unlawful to recruit women or select them for a particular job. This means that an employer cannot guarantee his female trainee a job when she has successfully completed her training. It means that few employers will undertake the training of women if they cannot employ them in the job for which they have trained them after they have completed their training.
It is understandable that employers take this view and it is stupid that the Act should be so framed. We have positive discriminate in favour of men in training but when we mention positive discrimination, or positive action, for women everyone throws up his hands in horror. It is time that we legislated to ensure that employers are able positively to discriminate where possible towards the women in their employ.
I apologise for keeping the House for so long, but I come now to my two final points. The Bill will deal with discrimination in private clubs that are open to both men and women. It is possible, and will remain possible, for clubs and groups that exist only for the purpose of activities relating to men or activities relating to women to continue; but some clubs, including working men's clubs and the posh London clubs, technically open their doors, and offer membership, to both sexes, but in practice discriminate against women members.
I know that someone will ask, "Why should we let women on to a snooker table?" I have heard it said that women would rip snooker tables. It is not that women cannot play snooker — we have women snooker championships—it is that men consider snooker to be a male preserve and they do not want women to interfere in it. It is laughable for women to be told that they cannot be trusted with a snooker table. When I think of how men cannot be trusted in the home to look after the furniture, and the number of coffee or tea cup and beer glass rings that there are on my tables because I cannot persuade a man to do something simple like putting a mat underneath his glass or cup, I am certain that women could take very good care of a snooker table.
That is another form of discrimination that should be outlawed. I was appalled to read in The Guardian the other day that the Club and Institutes Union has yet again denied women associate membership cards which would enable women members — who should in any case be full members—to go to other clubs, as men can.
§ Mr. John Evans (St. Helens, North)
Will my hon. Friend confirm that the National Union of Labour and Socialist Clubs has a policy of absolute non-discrimination written into its constitution, unlike the CIU?
§ Ms. Richardson
That is a shining beacon, and I wish that other working men's clubs did the same. However, the posh London clubs also practise discrimination. I have rarely been through the portals of some of the clubs along the Mall— I do not know what happens behind their 589 doors—but I know that they either do not allow women in or they discriminate against them when they enter. My Bill will put that right.
I have left until last the matter of sexual harassment at work. While preparing the Bill, and discussing it at meetings, I often heard it said, "Why do you want to include that? It does not exist. It is just making a joke out of the whole matter." However, it is a serious problem, and it is not a new one. Sexual harassment has been practised against women at work since time immemorial, but women were so embarrassed about it and found it so difficult to talk about, that it is only recently that the matter has been debated and discussed. Harassment ranges from sexist language to explicitly sexist calendars — [Interruption.]—to page three of The Sun, to the more threatening examples of women being touched up or asked for sexual favours and of being told, which many women have over the years, that they will not be promoted unless they submit to the sexual advances of someone who works higher up in their department. I assure those Conservative Members who seemed to think that my reference to calendars was trivial, that such matters offend many women.
§ Ms. Richardson
I am glad to hear my hon. Friend say that. We should begin with calendars and eradicate harassment right the way through the scale.
§ Ms. Richardson
Such harassment is not just deeply offensive, but is a manifestation of the male domination of society. It means that men still believe that they can treat women in that way and keep them in a submissive role. If it continues, it will be extremely dangerous to the liberty of women. Recently someone said to me, "Of course, women ask for it. It is the way they dress." I have heard that women can be sexually harassed bundled up in thermal clothing while working in a freezer factory, or wearing clothes suitable for a nightclub.
One young woman who worked in a company in the north of England recently brought a successful case of unfair dismissal. She worked in the personnel department of a fairly large firm. She went out with her colleagues for a celebratory drink, and during the evening the firm's accountant, who was not employed by it, pressed his advances on her—if that is the best way to put it—and he became so unpleasant that, after about an hour, she picked up a glass of lager and poured it over him. I would have done so an hour before. Nothing more was thought about the matter, but two days later on a Sunday night the woman's employer telephoned her and sacked her, because the angry accountant had told him that he had been insulted by the woman. She brought a case against the firm, and was successful, but it took her 11 months to do so and she almost had a nervous breakdown in the 590 meantime. She could not find a similar job during that period, because every time she went for an interview the employer would ask her why she had left her previous job, and she had to say that she had been unfairly dismissed because she had poured a glass of lager over someone. Women should not have to suffer such harassment, and if we include it in the legal framework we can eradicate it.
I repeat that the Bill has been supported by a wide variety of organisations and individuals——
§ Ms. Richardson
I shall make my final point, and then the hon. Gentleman can make his speech.
I shall end by quoting from a letter that was delivered to me by hand yesterday evening from the National Federation of Women's Institutes. In case right hon. and hon. Members believe that the Bill was dreamt up by a lot of trendy feminist groups, I am glad to say that the federation said:The National Federation of Women's Institutes is pleased to offer its support for your Bill, and to wish you every success at the second reading on Friday.We particularly welcome your Bill's comprehensive approach towards the promotion of equal opportunities as set out in Part VI. As you may know, the NFWI has for some time been campaigning for the equal treatment of women and men in taxation, in social security, in retirement ages, and in educational opportunities. We are much encouraged by the prospect that these areas, not covered by the EPA and SDA, would be subject to review in the light of the Bill's policy and objects. For too long we have seen minor adjustments here and there rather than the positive adoption of sex equality as a principle to be applied throughout social and economic policy.The amalgamation of the EPA and SDA is also a welcome proposal. We have been concerned to see continuing difficulties in interpreting these laws, the confusion over which Act to apply and the unjust results which ensue. Any measure bringing clarity and fairness into this area can only command our support … on behalf of our 360,000 members I am therefore delighted to welcome your Bill and to support its aims and objects.I hope that Conservative Members who may have reservations about the Bill will realise that an organisation which I am sure that they respect is in favour of it.
§ The Under-Secretary of State for Employment (Mr. Alan Clark)
It may be helpful if at an early stage I set the context in which this highly important subject should be debated in relation to the Government's attitude as many right hon. and hon. Members will wish to let us have the benefit of their views. With the leave of the House I shall do my best to answer their comments later.
This is a monumental Bill with 97 clauses and a money resolution. That is an unusual dimension for a private Member's Bill. None the less, I congratulate the hon. Member for Barking (Ms. Richardson) on her elevation to the Opposition Front Bench as spokesperson on this most important topic. I also congratulate her on the industry and singlemindedness that she and her helpers have demonstrated in the preparation of the Bill.
The Bill seeks to make many and far-reaching amendments to the Sex Descrimination and Equal Pay Acts. Its purpose is to repeal those Acts and replace them with a revised version. I am sorry to have to say that the revised version is not an improvement. The Government believe, as have predecessors of both parties, that the Sex Discrimination and Equal Pay Acts are good, sound pieces of legislation. They have fair and realistic objectives. It is practicable to comply with the obligations that they impose.
591 The Sex Equality Bill, no doubt because of the enthusiasm of its authors, lacks particularly the quality of balance. It is not fair or realistic, and it does not take account of the practicalities of the real world. I am obliged to draw hon. Members' attention to its deficiencies which I shall illustrate by referring to some examples from the Bill.
The Sex Descrimination Act is founded on the principle of fairness. It provides that access to jobs must be on the basis of merit, not on the basis of sex. Such a principle obviously makes sense to employers, too. There is no exception in the Sex Descrimination Act to the principle that an employer may not discriminate in filling jobs, whether he is recruiting or promoting.
The only circumstance in which he may offer any benefit to one sex but not the other is when training his work force. Then, he may offer training to his male employees or his female employees only, provided that he is training them for work in his employment in which the sex in question is currently significantly underrepresented.
Clause 51 of this Bill ignores the fundamental principle that access to jobs must be on the basis of merit not sex. It appears to provide that employers may lawfully recruit men only, or women only, should they so choose, provided simply that they train their new recruits. I cannot believe that this was the intended effect. I cannot believe that the hon. Lady wishes to provide that employers may lawfully reserve all their vacancies for men.
The Bill's drafters must have intended, although they have not so provided, that discriminatory recruitment should be restricted to circumstances where one sex is under-represented in particular work in the employer's work force. But such a provision is equally unfair. It would permit, for example, an employer to reserve all his managerial positions for women, whom he would recruit and train, regardless of how many better qualified men may be awaiting promotion. Fortunately no rational employer would ever wish to take advantage of such a provision. Nor do I believe that many women would want to be recruited on the basis of their sex, and not their ability.
I said that the Sex Discrimination Act had realistic objectives. By this I mean, first, that it tackles a genuine problem of sufficient seriousness to merit legislative intervention, a problem that could affect half the population and prevent them from using their talents. Secondly, while the Sex Discrimination Act clearly falls into the category of progressive legislation, it is not too far ahead of public opinion. Legislation which works primarily by changing attitudes will not be effective if it seeks to change those attitudes too far too fast.
The Bill contains a number of provisions which, it seems to me, fail on one or both of these tests of genuine serious need and widespread public support. Perhaps the two most striking examples are clauses 2 and 3, which extend the definition of sex discrimination to cover sexual harassment and discrimination against homosexuals in employment. It is far from clear how the provision on sexual harassment is intended to work.
Clause 2(4) provides:A person treats a woman less favourably within the meaning of subsection (1) (a) … by subjecting her to sexual harassment, which means unwelcome sexual advances, requests for sexual favours and verbal, physical, or other conduct of a sexual nature.592 But this clause does not in itself render anything unlawful, it merely sets the scene by defining discrimination. To find out whether discrimination by an employer is unlawful we have to read across to clause 6 on discrimination in terms of employment. From this it is clear that if an employer makes unwanted sexual advances in one of the contexts defined, in the terms and conditions on which he employes a woman, or in dismissing her, the provision could bite. However, the bill does not cover harassment from a fellow worker. The hon. Lady described the case of the accountant who behaved disgracefully. I accept the tenor of her argument about what is honourable and dishonourable in that context, but such an incident is not covered by her Bill. It does not really cover other employees who may harass women in the office. The only redress is against the employer.
§ Mr. Ian Mikardo (Bow and Poplar)
Is not that a perfect example of what the Committee stage of a Bill is for?
§ Mr. Clark
I have heard the hon. Member on many occasions in Committee and I appreciate the lucid way in which he argues his case, but he would be in difficulty in Committee on this matter. Relating definitions, the circumstances and the offence of discrimination against the employer is a problem of enormous complexity. I understand the honourable thought behind the provision, but as translated by the Bill it is surely misconceived.
The provision on homosexuals simply makes it unlawful for an employer ever to refuse a homosexual a job on the ground of his homosexuality. It makes no recognition of the fact that sometimes a person's homosexuality is relevant to whether he is a suitable candidate for a job. The teaching profession may be an example. In a limited number of circumstances, the current Act allows discrimination on grounds of sex.
I said that the Sex Discrimination Act imposes obligations with which compliance is a practicable proposition. One does not have to read very far into the Sex Equality Bill to find obligations with which it would be impossible to comply. For example, clause 2 provides thatA person discriminates against a womanifhe treats her less favourably than he treats or would treat a man, and cannot show that he does so solely on a ground other than her sex".This is the Sex Discrimination Act definition of "discrimination" with the addition of a requirement that the employer prove that his reasons for a particular recruitment or promotion decision, or even a decision to send an employee on a training course or to a conference, were entirely independent of considerations relating to the sex of the employee. But of what can such proof consist?
Clearly, employers would have at the very least to document fully all decisions affecting their employees, but how do they prove that the reasons given in the documentation were in fact the sole reasons? How can an employer ever prove that no thought that a man might be better for the job entered his mind?
Nor does the Sex Equality Bill make any recognition of the practicalities of running a business, as is illustrated by its proposals on paternity and maternity leave. Clause 13 is intended to give fathers the right to two weeks' paid paternity leave and to use some of the mothers' weeks of 593 leave of absence after the birth. I say "intended" because it is doubtful whether, as drafted, it would achieve those purposes.
Fathers would enjoy the same rights as mothers to reinstatement after such leave and to complain of unfair dismissal if not reinstated. The authors of this Bill are in effect attempting to extend to fathers rights that were specifically designed for women who bear children. The existing maternity rights cater for the phsyiological needs of mothers and babies, and it must be thought inappropriate to preach "equal opportunity" in this context.
If we look at the case for paternity leave on its merits, I know that leave for fathers at the time of birth and shortly afterwards can be a great help. But here we have the familiar problem of maintaining the balance between the rights of employees and the burdens on employers.
The new statutory rights proposed would cause great difficulties, administrative expense and inconvenience for employers, especially in small firms or where key employees are involved. Temporary replacements would often have to be engaged by the father's employer as well as the mother's. As most mothers are not absent for the full 29 weeks allowed under present legislation, in practice the leave taken by both parents would often add up to more than the leave taken by one. We must continue to allow the question of leave for fathers to remain a matter for individual negotiation and decision between employer and employee.
Although the authors of the Bill have not given this much prominence in their publicity, clause 13 also tries to extend the present maternity rights. The changes introduced by the Government in 1980 relating to the mother's right to return to work after confinement are all repealed. We made the changes in 1980 because employers were experiencing difficulties coping with this right and the existing provisions were positively deterring them from recruiting and promoting women.
Employment rights are no good without jobs, and it would be quite wrong to destroy the delicate balance between rights and obligations by repealing the 1980 provisions now.
§ Mr. Clark
I would rather not give way for the moment; I am still dealing with clause 13, which also reduces the qualifying period of service for maternity rights from two years to six months. The Bill's sponsors should not underestimate the extra burdens that this would place on employers and the deterrent effect that it would have on the employment of women of child-bearing age.
I doubt whether that deterrent effect would be much outweighed for employers by the consideration that male employees who might be living with pregnant women employed for six months by their own employers could also take leave of absence.
§ Mr. Caborn
Is the Minister aware that recommendations of the European Commission to the Social Affairs Committee of the European Parliament urge the improvement of the quality of family life and say, as a result of a two-year study into the matter, that there should be three months' leave for both parties? Those recommendations will be coming up for discussion in the form of a regulation.
§ Mr. Clark
I am aware of those recommendations, but recommendations by the Commission sometimes run outside what is practicable. I am sure that on reflection the hon. Gentleman will appreciate, as will Opposition Members who have been in government, that such changes would impose heavy burdens that are simply not appropriate at the present time.
§ Ms. Harman
What about the heavy burden that is placed on women who must work to make ends meet but for whom there is not proper maternity provision? And what about the heavy burden that is placed on a man who must go straight back to work as if nothing has happened when his wife has had a baby? Is it not a fact that families are being brought up and that babies are being born, and should not our pattern of employment reflect that reality?
§ Mr. Clark
I agree that it is a heavy burden, but under existing legislation there is generous maternity provision. The issue whether men should also benefit is set out in the Bill, many of the provisions of which are, as I say, contradictory and anomalous, but perhaps the hon. Lady will develop the theme of paternity leave for men if she has an opportunity to speak in the debate.
The Bill provides for women to claim equal pay for work of equal value as required by the European Court of Justice. This is no longer necessary. [Interruption.] As hon. Members will be aware, the Equal Pay (Amendment) Regulations, approved by the House on 20 July have been accepted in another place and will allow women to make equal value claims from 1 January of next year.
The Bill's authors have justified the proposed reduction in the qualifying period by arguing that the maternity pay fund has some spare cash. Going down to six months for mother could alone cost the fund over £20 million a year. To this should be added the cost of two weeks' paternity leave for fathers, which is evidently also to come from the fund. The maternity pay fund could not meet such new demands, even for one year, without running into deficit.
§ Mr. John Smith (Monklands, East)
The Minister should be careful not to mislead the House. What the other place passed was an amendment to the regulations stating that, in the opinion of another place, they did not conform with the requirements of the European Court.
§ Mr. Clark
Because the regulations have been approved and the opinion expressed in the amendment is, I am strongly advised, incorrect; we believe that we are in line with the European regulations.
In relation to equal pay, the Bill provides for women to claim equal pay for work of equal value as provided by the European Court. As I said, that is no longer necessary, but what is surprising is the difference between the way in which we have provided for such claims to be dealt with and the Bill's proposals.
At first sight the Bill's provision for an equality officer to report on the question whether two jobs are of equal value looks comparable to that allowing a tribunal to 595 commission a report from an independent expert. But there is a fundamental difference between the two officers. Under the new regulations the expert is to be a person designated by ACAS, an independent body which has no possible partisan interest in the proceedings.
According to the Bill, the equality officer will be an employee of the Equal Opportunities Commission. But the Bill also provides for that same commission to assist a claimant and even handle her case before the tribunal. The commission"s sense of integrity would of course, in practice, guarantee that there would be no conflict of interest. But surely it is unreasonable to expect a respondent to feel sanguine at having his case determined on the evidence of an official of the organisation supporting those who are claiming against him. I believe that this provision would be considered neither fair nor reasonable by employers.
The Equal Opportunities Commission has a statutory duty to review the working of the Sex Discrimination and Equal Pay Acts. I know that the commission intends to bring forward proposals for amendment in the latter half of next year, and we shall consider them most carefully.
It would have been interesting to hear the commission's views on the Bill. I know that it wanted to comment but was unable to do so in the short time available since the Bill's publication. I take this opportunity to record our appreciation of the constructive and sensible comments made by the commission during our consultations on the equal pay amendment regulations and the accompanying tribunal procedure regulations, which were largely altered in the light of the commission's recommendations.
The commission has a key role in assisting in the development of equal opportunity policies through legislative change where appropriate and through its many initiatives, such as the important Women into Science and Engineering Year which is to be commended for its valuable and practical approach to the serious issue of tackling the under-representation of girls and women in engineering. That point was made by the hon. Lady when she referred to the fact that very few girls do physics and mathematics courses of an advanced nature. As the hon. Lady probably knows, I have signed a number of designations under section 47 designating courses that are exclusively for women and girls.
I am sure that the House will understand that in my opening remarks I have not been able to deal with more than a few of the Bill's main provisions. There is scope for a lengthy critique on important but complex issues, such as indirect discrimination and the concept of the hypothetical man. Other right hon. and hon. Members may wish to develop that point.
I emphasise that, although the Government remain firmly committed to equal opportunities, many of the Bill's specific proposals are fundamentally misconceived and taken together, we have no option but to oppose them. Some proposals, such as those on maternity and paternity leave, would place unacceptable administrative burdens on employers and jeopardise the prospects for both men and women. Other proposals, such as the provisions on single sex recruitment, would surely have unintended ill-effects.
Even more importantly, I remind the House that a number of the Bill's provisions go well beyond what I believe public opinion is prepared to support in this sensitive field of legislation. I said that the Bill was monumental and certainly, whatever its effect, it will be 596 a monument to the industry and single-mindedness of the author and those who have assisted her. None the less, I believe that the Bill is impracticable, expensive and in many respects alien to public opinion, and I must urge the House to reject it.
§ Mr. John Smith (Monklands, East)
The Labour party give the Bill their total support. I wish to say how inadequate we found the reply of the Under-Secretary of State. It is typical of Ministers who are frightened to argue the principles that lie behind the Bill that they take refuge in pettifogging, legalistic criticisms, such as those to which we have just listened.
I can speak briefly because of the eloquent way in which my hon. Friend the Member for Barking (Ms. Richardson) introduced the measure. Our commitment to the Bill's sentiments pre-dates my hon. Friend's Opposition Front Bench responsibility, but her speech today amply demonstrated the wisdom of her appointment to those responsibilities.
The principle that lies behind the Bill—I hope that the House will not forget it — is that discrimination based on sex and sexuality is wrong. That is the first point that we wish to make in support of the Bill. Secondly, the plain fact is that the Equal Pay Act 1970 and the Sex Discrimination Act 1975 have been shown to suffer from important defects, such as those outlined by the hon. Lady. Those were useful and necessary pieces of legislation, but in a number of important respects they have been found to be inadequate. It is a measure of how far they fall below current international standards that the European Court ruled that the existing provisions for equal pay for work of equal value were illegal in terms of the European provisions. That was a sorry tale.
Only a few days ago, another place expressed the opinion that the regulations that the Government are offering, after having been found to have acted illegally by the European Court, are still in contravention of the provisions that the European Court wishes to see implemented. Not only have the Government been found to have acted illegally, but there is a strongly held opinion that they are still acting illegally in the methods used to try to put the illegality right. It is not sufficient for Ministers to say that the regulations still stand. By a clear and free vote backed by distinguished judges, such as Lord Denning, the other place showed that it thought that the Government were not only not acting in good faith in bringing forward the regulations but acting illegally. The other place came to that view because the regulations were over-complex, insufficient, bureaucratic in character and allowed market force defences and all sorts of other provisions that strike right at the heart of the objectives that the regulations were designed to achieve. The Government are failing in their obligation to observe the directive from the European Commission and going back on their commitment to be a genuine partner in the European Community.
§ Ms. Harman
Is not a striking contrast and telling difference to be found in the way that the Government have responded to the European Court's ruling on the importation of UHT milk, which will annihilate the doorstep delivery? The European Court of Justice made a decision on that matter in February this year, yet already regulations have been passed that will comply with its 597 ruling. However, in the summer of last year the European Court said that the Government were failing in their equality legislation and the Government still have not remedied that position.
§ Mr. Smith
I am grateful to my hon. Friend for a telling analogy of the Government's attitude. The Government have deliberately sought to bring in the minimum provisions that they could get away with on equal pay for work of equal value. We have had a sorry tale of regulations being introduced and then being withdrawn. In the other place, regulations were produced in October, mysteriously withdrawn, and they reappeared in December as the deadline of the end of the year marched relentlessly forward. The way in which the Government have approached this matter shows that they are simply dragging their feet on well-known commitments that they ought to be putting into force.
Clause 8 offers the Government a way out. My hon. Friend the Member for Barking has been helpful in bringing forward that provision because it allows the Government to escape from the problem and to conform to the requirements of the European Court.
There are other important matters in the Bill that are of current concern, including the problem of part-time employment which is becoming an increasing feature of our labour market. There are 800,000 more people in part-time employment than 10 years ago. It is important that legislation is put in place to ensure that those people are properly protected. In a recent paper to the National Economic Development Council the Chancellor of the Exchequer drew attention to the increase in part-time employment. He talked ominously about the need for real wages to be made more responsive to conditions in the labour market. That has alerted many people to the need to ensure that part-time workers are properly protected, and the Bill offers us such an opportunity.
The community faces another major problem with homeworkers because low pay is endemic among them. The Bill takes a major step to eradicate that exploitation. I hope that we shall receive a more considered reply on measures relating to part-time employment and home-workers than the Government have given so far. It is not good enough for the Government merely to say that some changes will cost more. That argument could have been put to Lord Shafesbury when he was trying to stop people being forced to climb chimneys. Every time we make such an advance, some cost will be involved. The cost must be evaluated in terms of the community's social objectives, the improvement in our standards of life, and the raising of the standards that we as a community want to see observed by employers. I hope that the Minister will give a much more considered reply on these matters.
The Opposition support the Bill. We have shown that the Government response is totally inadequate. Hiding behind technicalities will not stop the progress of this legislation. If it is defeated today, my hon. Friend the Member for Barking and others will ensure that it is brought back time and again for urgent consideration by the House.
§ It being Eleven o'clock, MR. SPEAKER interrupted the proceedings, pursuant to Standing Order No. 5 (Friday sittings).