COMMONS AMENDMENT (Hansard, 3 November 1986)

Lord Young of Gralffham
My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 2, and with the leave of the House I shall also speak to the technical amendment to the Long Title, Amendment No. 21. Amendment No. 2 provides the second new clause which was introduced in another place to amend our legislation in the light of the Marshall judgment. The clause before us now amends the unfair dismissal provisions of the Employment Protection (Consolidation) Act 1978 so that a woman will be protected against unfair dismissal up to the same age as her male colleagues.
Section 64(1)(b) of the 1978 Act provides that employees cannot complain of unfair dismissal to an industrial tribunal if they have reached their normal retiring age or, in the absence of a normal retiring age, if they have reached age 65 if a man or 60 if a woman. Despite the amendments contained in Amendment No. 1, without change to these provisions of the 1978 Act, a woman could cease at an earlier age than a man to have a remedy against unfair dismissal. Subsection (1) of this clause therefore amends the 1978 Act so that 971 where there is no normal retirement age for the position, which is the same for both sexes, the right to claim unfair dismissal will extend to 65 for women as well as men.
Subsection (2) of Amendment No. 2 deals with the tapering of basic awards by industrial tribunals after a finding of unfair dismissal. At present, Section 73(1)(b) of the 1978 Act provides for these awards to be reduced by tapering after a man's 64th birthday or a woman's 59th birthday. Subsection (2) amends this so that tapering will begin at age 64 for both men and women.
Amendment No. 21 is a technical amendment to the Long Title, necessary if the new clauses in Amendments Nos. 1 and 2 are to be included in the Bill. I am sure that both sides of your Lordships' House will welcome this clause as a necessary companion to Amendment No. 1. I beg to move.

§ Lord McCarthy
My Lords, we welcome this amendment because, as the Secretary of State says, it is required to carry into effect the Marshall judgment. The only point I want to make is to emphasise once again the link with the redundancy payments position and the redundancy payments criteria. I think I am right in saying that the Secretary of State did not answer, at least at any length, the many points that were made in the previous debate about the link between redundancy payments and what the Government now propose to do about the Marshall judgment. That comes clearly into sharp focus as a result of Amendment No. 2.
Let me give a concrete example in a little more detail than I gave earlier. Let us suppose that an employer selects a redundant man in order to avoid redundancy payments. Let us also suppose that the general practice in his place of work is that people should he dismissed on grounds of redundancy on the basis of first in, last out. Let us then suppose that in order to avoid paying substantial redundancy, or any at all, some short-term employee is dismissed. I would argue—and I think that the Secretary of State will accept—that that would be thought by any industrial tribunal to be unfair selection, and therefore unfair dismissal, with grounds for compensation.
Now let us suppose that the Bill becomes an Act and an employer selects a 61 year-old woman also to avoid redundancy payments, and, as as I said earlier, given abolition of the rebate there is an additional incentive to do so. My question to the Secretary of State is whether this is unfair selection. If it is a man, it is unfair selection. It it is a woman, is it unfair selection?
The Secretary of State may say that only a tribunal could decide this matter, but surely now, if an employer were to go before an industrial tribunal in a circumstance of this kind, he could pray in aid this Bill. He could pray in aid the Secretary of State's refusal to deal with the redundancy payments point. Yet surely what is fair for a man in these circumstances should be fair for a woman, and if a woman were to 972 take a case of this kind to the European Court we can have very little doubt what it would say.
Therefore there must be a connection between the Marshall judgment and what is being proposed to deal with redundancy, and the Equal Opportunities Commission must be right in its recent publication when it stated: The Government regards the provision of redundancy payments as a matter falling under the EEC Social Security Directive and not under the Equal Treatment Directive. But the Commission doubts whether this is a proper interpretation of the position under the European Community law and notes that the European Court of Justice has recently reiterated the fundamental importance of the principle of equality of treatment between men and women, and that the Court has given strict interpretation to the clauses in the Equal Treatment Directive which derogate from that principle; in particular Article 1(2) which purports to remove the issues of social security from that Directive". In other words, the European Court says that you cannot remove issues of this kind by saying that they are issues of social security and, in all logic and in all sense, you cannot. Therefore I ask the Secretary of State what he proposes to do.

§ Lord Young of Graffham
My Lords, the noble Lord, Lord McCarthy, has suggested—if not on this amendment, a few minutes ago—that women should, like men, be entitled to statutory redundancy payments up to the age of 65 instead of losing their entitlement at 60. I readily agree that it is anomalous for redundancy payments to cease to be available to men and women at different ages. But state retirement pensions start at different ages and, because of the enormous cost of reducing the retirement pension age for men—whether we agree that it is £3,000 million or £1,250 million if the age is reduced to 60—I fear that this must continue.
For the present the cut-off ages for redundancy payments are linked to state retirement pension ages, as of course are many occupational pension schemes. I am sure it was because of their acceptance of the undesirability of breaking this occupational state pension link that noble Lords originally introduced Amendment No. 1D. I think it would be equally undesirable to disturb the link between redundancy payments and state retirement pensions.
It would also be unfair if a woman were allowed to receive redundancy payments up to the same age as a man. This would mean that a woman of 61, who unfortunately was made redundant, would be able to claim a redundancy payment and immediately receive her state pension. She would also not have to pay prescription charges if sick; she could in some parts of the country qualify for cheaper travel and other benefits offered to pensioners and even, if I may go so far, get reduced price hairdressing.
A man of 61 also made redundant would receive redundancy payment and unemployment benefit for one year and for one year only. After this time, he would have to rely on means-tested supplementary benefits, and indeed before he could obtain supplementary help he might first have to reduce his life savings and thus face old age with fewer resources than his female counterpart. I am sure that this would be seen to be unfair by the majority of people in this country. No one can dispute that in the past women have suffered from being required to retire at an earlier 973 age than men. We must prevent this in the future and we are doing so in this Bill. Equally, we must not simply transfer discrimination from women to men,
On Question, Motion agreed to.