MEANING OF "DISCRIMINATION" (Hansard, 25 May 1989)

§ Mr. McNamara

I beg to move amendment No. 83, in page 35, line 11, leave out 'requirement or condition' and insert `requirement, condition, policy or practice'. This matter arose in Committee and it is important and technical. Our arguments can be found by hon. Members if they look at the appropriate point in the Committee proceedings.

The purpose of the amendment is to tighten the provision dealing with indirect discrimination to deal with the problems thrown up by recent developments in case law in anti-discrimination legislation. At present, a complainant can prove a case of indirect discrimination only if he can show that the barrier that has prevented him from securing the post in question is a "requirement or condition". That could be interpreted by the courts in such a way as to include "policy or practice", thus rendering the amendment superfluous.

However, case law suggests that the courts interpret such provisions in a narrow way. Two well known cases—Meer and Pereira—have been dealt with in the Court of Appeal. In both cases a narrow interpretation has been applied by which, in order to show indirect discrimination, the complainant must show that the behaviour of the employer against whom he is complaining constitutes an absolute bar to the complainant's employment. Anything less is not indirect discrimination.

In practice, that means that an employer could decide to exercise a preference in favour of people who are not residents of west Belfast, east Belfast or Magherafelt. As long as the preference was not an absolute ban on the employment of people from those places, it would be legal. The amendment would ensure that such preferences were included in the definition of indirect discrimination.

A further point must be made which was not made in Committee. When the Court of Appeal was discussing the Meer case it made its decision on the understanding that legislative change would be forthcoming. The case was partially argued on the basis of forthcoming legislative change and the court stated that the case required Parliament to act.

The Government's main objection to the amendment is that it would change the definition of indirect discrimination and, therefore, has obvious implications for Britain's sex and race legislation. Nevertheless, it should be noted that the Government have promised to introduce an amendment which, while not changing the 1200 definition of indirect discrimination, will assist the Fair Employment Commission in dealing with employers who adopt dubious practices which fall short of indirect discrimination.

The full argument on that case is contained in paragraphs 623 and 624—pages 57 and 58—of SACHR's report. I will not weary the House by quoting that extensively. However, the case law is well argued and can be seen. I would be happy to introduce it into the debate if I felt that it would command the attention of my hon. Friends and other hon. Members.

It will be nonsense if we have a phrase in the code of practice saying that certain practices must not be used in terms of employment when seeking to engage new workers which, if challenged before an industrial tribunal, would have to be upheld on the basis of Court of Appeal decisions. That is not what the Government or the Opposition want. Therefore, I hope that the Government will consider the matter carefully. It would be terrible if, as was once said by one of my hon. Friends, the barrel of honey was ruined for a penn'orth of tar.

§ Mr. Viggers

I will not rehearse the arguments that have been the subject of discussion and correspondence between the hon. Member for Kingston upon Hull, North (Mr. McNamara) and myself. I understand the point he makes. We are contemplating the possibility of introducing an amendment which would operate on the following lines. It would place a duty on the commission to follow proceedings of all individual cases before the tribunal. It would give the commission the discretion to form an opinion, following its analysis of an individual case, that the respondent might fail to afford equality of opportunity. It would give the commission a discretionary power to inform the respondent concerned of its opinion that he should take action to promote equality of opportunity and provide, as with clause 13, that any person so informed may give a written and voluntary undertaking to the commission to take the appropriate action.

This proposal, which responds to suggestions by the Opposition, is still being considered and it is a very technical matter. It seems to have the merit of placing the key function of recommending action in the area of equality of opportunity on the commission rather than running the risk of compromising the tribunal's appellate role in pattern and practice cases by placing it on the tribunal. Moreover, the result is the same in that the employer is placed on notice that in the opinion of the commission certain action is necessary to promote equality, irrespective of the outcome of the individual's discrimination case.

I hope that the hon. Gentleman will accept that this matter is being considered and that we will take full account of the points that he has just made. We shall seek to bring forward some words which will take account of this fact if we are able to meet the points in the other place.