COMMONS AMENDMENTS (Hansard, 3 November 1986)

§ Lord Young of Graffham

My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 1 This is the first of four new clauses introduced in the other place. I am sure all these clauses will be supported by this House, but the two clauses set out in Amendments Nos. 1 and 2 are a particularly welcome extension of equality for women in employment. These are the clauses which deal with the implications of the Marshall judgment of the European Court concerning retirement ages for men and women, which I undertook to bring forward and assured your Lordships there would be opportunity to consider, when the Bill was last in this Chamber.

Let me briefly recount the history of these clauses. The European Court of Justice ruled on 26th February 1986 that dismissal of a woman solely because she has reached state pensionable age which is different for men and women constitutes sex discrimination contrary to Article 5(1) of the European Community Equal Treatment Directive, and that the Article may be relied upon as against a state authority acting in its capacity as employer in order to avoid the application of any national provision which does not conform to it. The judgment meant that women employees of a state authority could rely directly on Community law to protect themselves from compulsory retirement at a different age from male colleagues; but the position of private sector employees was unclear. The Government were concerned to clarify matters and remove any anomalies between public and private sector workers as quickly as possible, and on 1st April we issued a consultative document proposing changes to bring our legislation into line with the judgment. The results, incorporating a number of improvements following our consultation, are before us now. The clause before us now will give women the right to work to the same age as their male colleagues. The second clause, which we shall be discussing shortly, will 955 protect them from unfair dismissal up to the same age. No longer will employers be able to assume that women's working lives finish earlier than men's.

However, before I examine in detail what Amendment No. 1 will do, perhaps I should briefly mention what the amendments will not do. This Bill does not touch the position of either state or occupational pensions. Of course these are of major importance in the question of retirement, and discrimination in retirement cannot finally be eliminated while different pension ages exist. However, As noble Lords will appreciate this is a complex area with wide ranging implications. European Law is progressing towards greater equality in pensions, with the welcome adoption this summer of the Directive on Equal Treatment in Occupational Social Security. It has long been this Government's policy to move towards greater flexibility and equality in state pension ages—to move for example towards a decade of retirement as suggested in the Green Paper on the Reform of Social Security published in June last year, within which both men and women could choose at what age to retire. But the costs are exorbitant—over £3,000 million to reduce men's state pension age to 60, and still unacceptably high to introduce a retirement decade. The Marshall judgment does not touch upon pensions and we would not wish to hold up the substantial step forward we are making on retirement age because of difficulties over the question of pensions.

Let me now turn to the details of the provisions of Amendment No. 1, which amends the Sex Discrimination Act. Subsection (1) amends Section 6 of the Sex Discrimination Act 1975. This is the section which makes it generally unlawful to discriminate on grounds of sex in the selection and treatment of employees, including dismissal of employees. Section 6(4) excludes from the general requirement not to discriminate provision in relation to retirement, and the new clause narrows that exclusion. It does not remove the exclusion entirely and does not alter the exclusion for provision in relation to death.

Paragraphs (a)(h) and (c) of the new Section 6(4) as amended by this clause broadly reflect the categories of discrimination set out in Section 6 of the 1975 Act. Paragraph (a) deals with the offer of a job, paragraph (b) with the period of employment, and paragraph (c) with termination of employment. I think it is easier if I deal with these in reverse order.

Paragraph (c) removes the retirement exclusion from dismissal and detriments resulting in dismissal or demotion. This means that it will be unlawful to dismiss or demote a woman for reasons connected with retirement when a comparable male employee would not have been so treated. It therefore implements the basic requirements of the Marshall judgment, and goes beyond this by including demotion, so that an employer will not be able to remove major responsibilities from women, or otherwise reduce their status, if he would not do this for a man of the same age. The phrase "subjecting her to any detriment" ensures that the new provisions relate not only to express dismissal, but also to constructive dismissal, where the employee is forced to 956 resign because of the employer's conduct. It also ensures that indirect discrimination is covered, to that, for example, an employer could not require part-timers to retire earlier than full-timers if this would be indirectly discriminatory against women.

Paragraph (b) removes the retirement exclusion from promotion, transfer and training, and thus makes it unlawful, for example, to provide that training will not be given to women over 60 but may be given to men up to the age of 65. Again, this goes beyond the strict requirements of the Marshall judgment but is clearly a welcome extension in keeping with its spirit. Paragraph (c) makes it unlawful to offer employment on terms which are discrimatory in the ways just described, in relation to dismissal, promotion, training and so on.

Subsection (2) deals with partners in a firm, as opposed to employees. It narrows the retirement exclusion in section 11(4) of the 1975 Act in a way broadly equivalent to the way subsection (1) deals with employees. Its simpler form reflects the simpler provisions of Section 11.

Subsection (3) defines dismissal from, employment and expulsion from a partnership to ensure that constructive dismissal or expulsion—in other words forced resignation—are covered and to cover any cases where a contract of employment was automatically terminated at a given age or after a certain period.

Subsection (4) narrows the retirement exclusion in Section 6 of the Equal Pay Act in a way broadly parallel to the narrowing of the Sex Discrimination Act by subsection (1). The Equal Pay Act covers working conditions laid down by the contract of employment, and subsection (4) gives employees whose contracts contain terms which are discriminatory in the ways I have already described a remedy under the Equal Pay Act before they are actually retired. Those then are the main effects of Amendment No. 1.

Employers, as a result, will have to change their retirement policies if at present their female employees are compelled to retire at an earlier age than comparable male workers. I would add that although I consider it would be unreasonable to require that all such retirement policies be equalised in less than 12 months, I very much hope that employers and unions who can make the necessary changes sooner will do so. I know that some have already been able to do so.

I hope noble Lords and Baronesses opposite will join with my noble friends in welcoming this clause as an important extension of rights for women. I beg to move.