Disability Discrimination Bill

HL Deb 18 July 1995 vol 566 cc168-86

6.28 p.m.

Consideration of amendments on Report resumed on Clause 4.

Baroness Turner of Camden moved Amendment No. 18:

Page 3, line 10, at end insert ("and occupational pensions").

The noble Baroness said: My Lords, I shall speak also to Amendment No. 19. The amendments are grouped also with Amendments Nos. 31 and 32 in the name of the noble Earl, Lord Buckinghamshire. No doubt he will deal with them as he feels appropriate.

In Committee, I moved a series of amendments designed to ensure that disabled people were not discriminated against when it came to membership of occupational pension schemes. I pointed out that disabled pensioners had a lower average income than non-disabled pensioners; that the changes to the state pension scheme had disadvantaged disabled pensioners since they were more likely than the non-disabled to have to rely upon state provision and SERPS; and that since the Government's policy was against discrimination in employment, they should also be against discrimination in one of the major non-wage benefits, which is of course the provision of occupational pensions.

The Government have actively encouraged people to belong to private pension schemes rather than to the state scheme. We may have our doubts about that, in particular as regards the sale of personal pensions where the circumstances of the individual concerned are not appropriate. However, the fact remains that that is Government policy.

Therefore, in a Bill aiming to end discrimination against disabled people, it makes sense that there should be a clear commitment to ending discrimination as regards the membership of occupational pension schemes. In Committee the then Minister, the noble Lord, Lord Inglewood, seemed quite sympathetic. However, for various reasons he did not like my series of amendments. He said: I cannot support his amendment but we shall consider this matter further and I shall come back to the House on the point at Report".—[Official Report, 13/6/95; col. 1704.]

Here we are at Report. We have tabled another amendment (No. 19) which provides that regulations may make provision for: the elimination of discrimination against disabled persons in relation to terms of employment relating to membership of an occupational pension scheme, with such modification as may be prescribed".

In other words, we have tried to meet some of the objections raised by the Minister at that time. We hope that this time the Government will see the justice of what we are proposing and will come back either accepting what we say or, if they cannot, producing their own alternative at a later stage.

Clearly, at a time when pensions are on everybody's mind and when there is constant talk of the need to provide for the elderly in one way or another, it would be inappropriate that a Bill intending to outlaw discrimination against disabled people should leave your Lordships' House without the vital provision that we suggest in these two amendments. I beg to move.

6.30 p.m.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the noble Baroness for raising this important matter and I hope that she will find my response helpful.

Perhaps I may first deal with Amendment No. 18. The purpose of this amendment is to include occupational pensions within the defined meaning of "benefits" in Clause 4. As my noble friend Lord Inglewood made clear during the Committee stage, Clause 4 is drafted in the same terms as Section 4 of the Race Relations Act 1976. It has never been suggested that that Act has failed to cover entitlement to occupational pension benefits. It is easy to see why that is so. Clause 4 applies both to "terms of employment" and to "benefits", which is already widely defined. A person's entitlement to a pension from his employment will normally be a term of his contract, and even where it is not a term it is so plainly a benefit that I cannot believe that courts or tribunals would have the slightest difficulty on the point. I cannot agree to the amendment as it would throw doubt on the existing wording of the Race Relations Act, but I hope that this assurance will enable the noble Baroness to withdraw her amendment.

I turn to Amendment No. 19. It provides the power to make regulations to deal with the detailed issues which may arise regarding the application of Part II of the Bill to occupational pensions. Amendment No. 32 seeks to disapply Clause 6(5) in the case of discrimination relating to benefits in employment. It also disapplies the subsection in relation to occupational payments.

Your Lordships will be aware that Clause 6(5) enables regulations to be made to specify additional circumstances in which less favourable treatment is taken to be justified. It may be that the noble Baroness intends that the question of justification of less favourable treatment in pensions should be dealt with separately by regulations made under the new regulation-making power that she is proposing in Amendment No. 19. However, we must take great care to understand the possible effect of this Bill upon occupational pensions. We must accept that there will he cases in which less favourable treatment will occur for wholly justifiable reasons.

There might be two types of cases in which occupational benefits for a disabled person might justifiably be less than those for a non-disabled person working next to him. The first is that pensions are almost always linked to pay. If there is a justifiable difference in the pay received by the two workers—perhaps, for example, because the disability means that the disabled person has to work fewer hours—it must be right that the pension can also reflect that difference. I cannot believe that your Lordships will wish to require the employer to have to arrange for a full pension in such circumstances.

The second reason is that the disability might create actuarial risks which the employer or the pension fund should not have to take. For example, depending on the circumstances, we believe that an employer who takes on an employee who is terminally ill can be justified in refusing such a person cover under any scheme he operates for death-in-service benefits. The removal of any justification in the case of these benefits and payments would place quite unwarranted burdens on employers. For that reason, the Government cannot accept these two amendments. I hope that with that explanation of what we envisage, the noble Baroness will be able to withdraw her amendment.

Baroness Turner of Camden

My Lords, I thank the Minister for that explanation, although I do not entirely accept it. He may have a point as regards the first amendment. However, I would point out that under the Government's own legislation it is no longer possible to make the membership of a pension scheme a contractual obligation; it is wholly voluntary. We are talking about the right of access to pension schemes.

As regards the second amendment, I note what the Minister says about actuarial considerations and he may have a point. However, I do not believe that he has much of a point in regard to the disabled person who does not work the same number of hours or who receives a different amount of pay. We are not talking about people receiving exactly the same pension. Usually people who belong to pension schemes have a pension that is related to their pay. If they are receiving less pay because they do not work so many hours that is normally reflected in the pension. I see no difficulty with that.

That is why, as regards the actuarial point, we specified in our amendment that there should be regulation-making provision. If regulations were made it would be possible to deal with some of the points that were raised by the Minister in opposition to the amendments.

I am by no means satisfied that there should not be provision written into the Bill to cover access to occupational pension schemes. I believe that it is important that it should be clearly evident that disabled people may have access to occupational schemes. We suggested that regulations should be made in order to make provision for that. However, I do not intend to press the issue to a Division at this time. I shall think most carefully about what the Minister said. There may be an opportunity to raise the matter again on Third Reading when we resume after the Recess. I beg leave to withdraw the amendment.

Baroness Seear

My Lords, perhaps I may clarify a point that the Minister made. He said that it would be obvious that one would not give a pension to anyone who was terminally ill. What does he mean by "terminally ill"? If he means anyone who has a progressive illness that will ultimately lead to death he is including someone who may be ill for a very long time. Unless it is a short terminal illness I do not believe that we should have on the record of Hansard that it is taken absolutely for granted that because someone is terminally ill he will not be considered for a pension. HIV is a case in point. One could say that a person suffering from HIV is likely to die—of course, we are all more than likely to die—but such a person could be ill for a long time. Given that widows' pensions are connected to occupational pensions it is important that we should not write people off because they can be loosely described as "terminally ill".

Lord Mackay of Ardbrecknish

My Lords, this is the Report stage and I am not sure whether I am entitled to come back. However, I can understand the point which the noble Baroness makes. The simple fact is that if an employer is faced with someone who has a terminal illness and he is prepared to employ him there may be a difficulty in admitting him to a pension scheme which has death-in-service benefits. The reasons are obvious. The actuarial calculations would be extremely adverse in those cases. Here we are talking about cases in which there may be justification for what, on the face of it, looks like discrimination. I do not wish to become involved in arguments as regards death in five, 10 or 15 years. As the noble Baroness says, there is in any event an inevitability about it. If, when a person is taken on, he has a clear terminal illness which means that he will die before he reaches retirement age and will therefore trigger off death in-service benefits and the occupational pension scheme decides that that person cannot be accepted, that should be a reasonable defence against discrimination. That is the point that I was trying to make.

Baroness Seear

My Lords, I still think that it would be helpful if the record in Hansard could leave at least some doubt about the matter because death may take 15 or 20 years.

Baroness Turner of Camden

My Lords, as I said, I shall not press the amendment to a Division, although the noble Baroness, Lady Seear, has raised an extremely important matter. We have said that there should be regulations and I believe that account could be taken of actuarial considerations in those regulations. But in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

6.45 p.m.

Lord McCarthy moved Amendment No. 20:

Page 3, line 10, at end insert: ("(4A) It is unlawful for an employer to advertise employment in such a way that the advertisement indicates, or might reasonably be understood to indicate, that an application would, or might be determined to any extent by reference to—

1. (a) the successful applicant not having any disability within the meaning of the Act; or
2. (b) the employer's reluctance to take any action of a kind mentioned in section 7.

(4B) For the purpose of securing compliance with the provisions of sub-section (4A) above and the restriction of difficulties arising out of those provisions the National Disability Council shall be empowered under the terms of section 34(3) below to establish Local Conciliation Committees as and when required. (4C) It shall be the duty of every such committee—

1. (a) to receive and consider any complaints of advertisements in contravention of subsection (4A) above;
2. (b) to make such inquiries as they think necessary with respect to the facts alleged in any such complaint; and
3. (c) where appropriate, to use their best endeavours by communication with the parties concerned or otherwise to secure the settlement of any difference between them, including, where appropriate, the withdrawal or reformulation of any advertisements which the committee considers is in breach of subsection (4A) above.

(4D) Proceedings in respect of any contraventions of this section shall be limited to those set out in this section.").

The noble Lord said: My Lords, this amendment aims to attack in a more effective way than is done on the face of the Bill the practice of discriminatory advertising. There is no doubt that that practice is as much a problem in the area of disability as it is in the area of race or sex. Discriminatory advertising—for example, statements such as, "only the fit need apply", or "candidates must not have a record of physical or mental instability", or "above average health is an advantage"—are all too common. That is accepted on the face of the Bill because Clause 12 introduces a remedy of a kind in order to try to deal with the practice of discriminatory advertising. We are saying that the method adopted to deal with that matter is weak and almost non-existent.

It is weak and it is difficult to improve it beyond a certain degree in the absence of an effective commission. We are not debating that this evening, but we shall debate it on Thursday. However, in a sense the amendment assumes that we shall be unsuccessful; it is a pessimistic amendment. If there is no commission to parallel the way in which discriminatory advertising is swept up in relation to race or sex, we ask whether anything more can be done in the Bill as it stands. The amendment suggests that something can be done. It draws on the example of other kinds of non-discriminatory legislation; for example, the race relations legislation of 1965 and 1968. In a sense, this amendment is a model of what was done to deal with discriminatory advertising at that time.

Therefore, the Bill admits that there is a discrimination problem. Clause 12 provides that where a complainant is seeking to show before a tribunal that he has been discriminated against, he can advert to an advertisement. He can say, "I have an advertisement here", and he can use that in presenting his case. It would be fair to say that that means that if a person can show an advertisement which is germane to the non-appointment of a disabled person, then that becomes a particularly coercive piece of evidence which changes the onus of proof. From that point, it is up to the employer to demonstrate that there is no discrimination, given the fact that there is that discriminatory advertisement.

That is very limited. A case would have to be established which connected the person to that advertisement before it would have any effect at all in any kind of tribunal activity. This amendment seeks to try to find a way to make that situation more effective. For example, the Sex Discrimination Act lists specific examples of the words which cannot be used in advertisements—salesgirl, postman, stewardess. The 1976 race relations legislation provides that you cannot say in an advertisement that you wish to appoint persons of a given race, colour, ethnic or national origin. There is nothing of that kind in this Bill.

I suppose that there is nothing of that kind because there is no commission. If phrases of that kind are used and there is a body like the EOC or the CRE which may take a wide variety of action—formal investigation, non-discrimination notices—then one can do something about discriminatory advertising.

Nevertheless, we believe that something could be done—that is the point of the amendment—if the approach adopted in race relations legislation of 1965 and 1966 is followed. At that time local conciliation committees were established which could investigate both specific and general complaints. They could bring together the parties and attempt to reach agreement or procure the withdrawal of an offending advertisement. Success or failure would be reported to the appropriate commission. It is thought generally that that procedure, although it lacked coercive force—it certainly lacked the coercive force of more recent legislation—went a long way towards cleaning up the problem of discriminatory advertising. It was rarely necessary to invoke the limited powers available in that period.

Therefore, this amendment builds on that model. It begins with a definition of what is a discriminatory advertisement, and we take that from Clause 12 of the Bill. Secondly, it gives the consultative council established under the Bill the power to set up conciliation committees to deal with allegations of discrimination. It makes it clear that although there can be conciliation, as there was in relation to the old race relations board, there is no coercive power as there was not in the 1965 Act. Therefore, we are asking for a provision which goes some way beyond the present Clause 12 in the absence of a commission. I beg to move.

Lord Addington

My Lords, I believe this is a sensible and reasonable amendment in that it seeks to bring together parties in order to discuss the problems. I hope that the Government will look favourably upon that approach to the problem.

Lord Monson

My Lords, if this amendment were accepted, would it apply to the armed services in the future? Would they not be able to advertise in future for fit, young recruits?

Lord Henley

My Lords, the noble Lord, Lord McCarthy, has explained how his amendment empowers the National Disability Council to set up local conciliation committees. He described them as similar to those set up under the 1965 race relations legislation to investigate and deal with job advertisements which are unlawful under the first part of the amendment.

Such advertisements would indicate either that the application could be determined by reference to the successful applicant not having a disability or that the employer was reluctant to make a reasonable judgment.

During Committee stage we had a fairly extensive debate on the role of the National Disability Council. My noble friend explained at the time that it will be an advisory body charged with providing high level policy advice. It is not part of its role to investigate or police this legislation, nor would it be appropriate or necessary for it to be empowered to create the network of local committees that the noble Lord suggests.

Nor do the Government believe that the creation of yet another tier of bureaucracy is either necessary or desirable. The right organisations for dealing with complaints under Part II are ACAS and the industrial tribunals. But, perhaps more fundamentally, I do not believe this amendment would have the desired effect. Why should employers always risk a complaint to one of these local bodies even if they were perfectly justified in saying that people with particular disabilities need not apply? The requirement could be perfectly reasonable. The point made by the noble Lord, Lord Monson, is perfectly valid. Obviously it is open to people like the Armed Forces to make it quite clear that in looking for recruits they need fit and healthy young recruits. Under this amendment, it might be that an employer saying that fitness was necessary for a physical fitness instructor could find himself under investigation by a particular local committee, should that committee so wish.

Baroness Hollis of Heigham

My Lords, is this correct? The whole thrust of the Bill in terms of the armed services and the rest of it is that where a disability is relevant to the performance of that job the employer may not be required either to interview that person or to offer him a job or whatever. It is like the absurd case of someone entering a restaurant wearing sunglasses and being offered a menu in Braille. Is he therefore being discriminated against? That applies only if the condition is relevant, that person is unfavourably treated and it would have been reasonable for the employer to have acted differently. The Minister may be giving the House a false impression of what the law will do.

Lord Henley

My Lords, the noble Baroness has taken rather an odd example. I was drawing the attention of the House to the possibility that the local committee of the sort that the noble Lord, Lord McCarthy, might want to set up, in fits of gross over-enthusiasm, might wish to investigate cases that I do not think were appropriate. I do not think it would be right so to do.

Baroness Seear

My Lords, I used to sit on one of these committees under the old Race Relations Act. They were run entirely by voluntary people and there was nothing bureaucratic about them. They might have been regarded as rather amateur but certainly they brought people together to discuss the issues. They played a small part in the conciliation process. It was not a matter of arbitration but rather of conciliation on the part of local people acting on a voluntary basis. I believe that even the secretary was unpaid. Those committees worked rather well. They were not revolutionary and they did not achieve great results, but they offered useful advice.

Lord Henley

My Lords, I am most grateful to the noble Baroness. I daresay they need not be necessarily bureaucratic; I was saying they are unnecessary. I also have to say that in the case of an individual of the sort who put in the most grossly discriminatory sort of advertisement of the sort that we all thought was particularly awful, I have severe doubts as to whether he would actually take much notice of a committee of this sort. It seems very odd to create an offence, which is what this amendment does, without any sanction against that offence other than, as the noble Baroness puts it, a collection of rather worthy souls, unpaid and voluntary, going round saying, "Can we have a chat"? The sort of person who will put in the sort of advertisement that the noble Baroness and others are talking about is the sort of person who, as it were, would put up two fingers to such an approach.

Baroness Seear

My Lords, I do not think I was worthy or the sort of person who wanted to go round having a chat. I remember that my particular conciliation body was chaired by an extremely well known industrialist on whom the noble Lord himself would, and I daresay has, relied on many occasions.

Lord Henley

My Lords, I daresay that might be the case. What I am saying is that for an amendment of this sort to create an offence without an appropriate sanction seems an odd way to go about things. I think the sort of people who would be likely to be grossly in breach of the sort of offence that the noble Lord is creating are not the sort of people who would respond particularly well to such an approach.

Let me turn to our own approach and explain that. Obviously I share with the noble Lord and both noble Baronesses a desire to end discriminatory and unfair advertising. I am pleased to note that the amendment leaves in place our approach under Clause 12, and I hope that the noble Lord does at least recognise its value. I believe that perhaps his amendment is supposed to be "belt and braces", but I believe that on this occasion our braces are perfectly adequate.

We are opposed to advertisements which blatantly suggest that disabled persons will be discriminated against. We are not aware, however, that such advertisements exist in the sort of numbers that the noble Lord implied. We would also be opposed to advertising which might tend to put off disabled applicants, whether intentionally or not, who might be able to do the advertised job. The Government's approach is the best way to ensure that employers take more care to ensure that advertisements give a fair description of what is genuinely required for the job. If a disabled person who meets the advertised requirements is refused the job, the employer will be at risk of tribunal proceedings, carrying the real sanction of an award of compensation.

We have heard that the amendment seeks to bring the Disability Discrimination Bill into line with other anti-discrimination legislation. But this fails to take into account the very real differences between disability on the one hand and race and sex on the other. In all but the very rarest of cases a person's race or sex does not affect his or her ability to do a job. I believe that cannot be said of disability and I hope that the noble Lord recognises that. There might well be legitimate reasons why an employer will want to mention certain health requirements in a job advertisement. I mentioned the physical fitness instructor. There are obviously other less obvious ones. There is obviously the case of the Army, mentioned by the noble Lord, Lord Monson. An amendment of this sort is an unnecessary and unreasonable restriction on employers and I think will demotivate disabled people who may think they have a chance of getting a job for which they are not suitable.

The noble Lord also said that the only way in which the Government's clause could be of any use to disabled people is if they actually apply to a tribunal. This is not the end of the matter, however. It will be made clear to employers in the code of practice that one consequence of not taking care to ensure that their advertisements reflect justifiable job requirements is that a tribunal claim against them could well be successful if a disabled person is turned down who could do the job despite what the advertisement says about health requirements. In considering advertisements, employers will be well advised to consider the duty of reasonable adjustment in identifying health requirements which might be overcome by such an adjustment. No employer wants to trigger a tribunal complaint unnecessarily. The Government's approach will effectively put a stop to any blatant discrimination—if it exists—and will also be effective in making job advertisements fair to all employers and disabled people. As I have explained, I believe our approach in Clause 12 is the right one—

Lord Rix

My Lords, I am grateful to the noble Lord for giving way. I wish to refer to a question which arose at the previous stage of the Bill. The noble Lord, Lord Inglewood, stated: A firm of below 20 employees is not subject to Part 11 of the Bill and hence will not be covered by Clause 11".—[Official Report, 27/6/95; col. 678.] I believe that Clause 11 is now Clause 12. I understand that the smaller firms are not covered by this clause which the Government have put forward. It seems to me strange that this cannot be so. We can perhaps agree that firms with 20 employees or fewer will not be subject to the full rigours of this Bill as regards employment, but surely an anti-discriminatory clause could be included somewhere in the Bill, or in regulations, which states that an employer with 20 or fewer employees could not produce an advertisement which was discriminatory and indeed derogatory towards disabled people. It seems that that is possible.

I must apologise to your Lordships' House for only having found anecdotal evidence on this matter so far, but I know that such advertisements have appeared in the past, even in the theatrical world. We want to make sure that they do not appear in the future. Can the Government extend Clause 12 in some way to cover the smaller employers as well as the larger ones? Otherwise discriminatory advertisements could appear.

Lord Henley

My Lords, if the noble Lord has evidence of that kind I should be more than happy to look at it and consider it in due course. However, I do not think that there is a case for extending Clause 12 to firms of fewer than 20 employees, for the very reasons that we gave for exempting such firms from Part II generally. As I said, if the noble Lord wishes to put evidence to me I am always prepared to consider these matters. However, I have not seen any great evidence of abuse in this field and a vast number of discriminatory advertisements of that kind.

I believe that our approach is about the right one. I believe that it provides the right balance between the need to prevent employers from discouraging disabled people in a discriminatory manner and the need to ensure that employers are able to advise potential applicants of the genuine physical and mental requirements of a specific job. On that basis, I hope that the noble Lord will feel able to withdraw his amendment on this occasion.

7 p.m.

Lord McCarthy

My Lords, the noble Lord says that he has no evidence of this being a problem. With the best will in the world, and without wishing to be personal, I remind the noble Lord that he has come to this Bill rather late and somewhat recently. If the noble Lord had read almost any of the considered evidence submitted by the various interested bodies which have made representations to us on this side of the House, and I am sure to noble Lords on that side of the House, he would know that their correspondence is full of examples of discriminatory advertising. It is standard form, just as it was standard form in relation to sex and race before the legislation in those areas. To come here today and say that there is no evidence of it and no concern about it frankly will not do.

I turn first to the remarks of the noble Lord, Lord Monson. As I understand it, under Clause 56(7) the armed services are specifically excluded from the Bill. As I recall, in Committee we on this side of the House sought to have them included. Therefore, the noble Lord's arguments do not have a great deal of force. Anyway, even if they were included, as we said at the time, there are always the provisions in Clause 6 of the Bill which set out the circumstances in which less favourable treatment is justified. Clause 6(4) sets out the kind of circumstances in which an employer requires people who are not disabled, such as the armed services. Those exceptions mean that there would have been no difficulties from the point of view of the armed services if we had been successful in Committee in having the armed services included in the Bill. Therefore, I do not believe that we need to bother with those arguments.

I turn to what the Minister said. As the Minister said, most of what he said has been said before. That is quite true. This is a consultative committee. It has no power. That is what we are trying to change. He said that the Government do not like quangos. We know that, but they have set one up. All we are trying to do is to add a little to the functions of that quango.

The Minister said that he did not like my definition of what should be contained in an advertisement for it to be unfair and discriminatory. I lifted the definition from Clause 12(1) (e) (i) and (ii) of the Bill, because I thought that if I had a different definition of discriminatory advertising I might be in trouble. Therefore, I have used the Government's own definition.

Therefore, the only argument which the Government have, which was answered by the noble Baroness, Lady Seear, from her past experience, is that if this were done nobody would go to the conciliation committees. The Government say that British employers who discriminate through their advertisements would not go. Most employers discriminate because they do not know that they cannot discriminate, and when it is pointed out to them they say, "I am terribly sorry, I did not realise we could not say that". The Government say that they would not listen to the wise words of the conciliation committee. I have to tell the noble Lord again that that is exactly what was said in 1965. It was said, "They won't go". But they did go. Very rarely did employers not go to the conciliation committees of the Race Relations Board and refuse to consider what was suggested. I would not go so far as to say that the whole problem of discriminatory advertising was settled. That was one of the reasons why we had to have another race relations Bill. However, it made a considerable impact.

Some people would not go to the conciliation committees, but some would. Some people would listen. They would listen more than this Government will listen. We may think about the matter again and bring it back at Third Reading but, in view of the time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Meaning of "discrimination"]:

Lord Henley moved Amendments Nos. 21 to 23:

Page 3, line 20, leave out from beginning to ("cannot"), in line 21 and insert ("to whom that reason does not or would not apply; and (b) he").

Page 3, line 22, leave out ("under section 6").

Page 3, line 23, leave out subsections (2) and (3) and insert:

("(2) For the purposes of this Part, an employer also discriminates against a disabled person if—

1. (a) he fails to comply with a section 7 duty imposed on him in relation to the disabled person; and
2. (b) he cannot show that his failure to comply with that duty is justified.

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) For the purposes of subsection (2), failure to comply with a section 7 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5) If, in a case falling within subsection (1), the employer is under a section 7 duty in relation to the disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 7 duty.

(6) Regulations may make provision, for purposes of this section, as to circumstances in which—

1. (a) treatment is to be taken to be justified;
2. (b) failure to comply with a section 7 duty is to be taken to be justified;
3. (c) treatment is to be taken not to be justified;
4. (d) failure to comply with a section 7 duty is to be taken not to be justified.

(7) In this section "section 7 duty" means any duty imposed by or under section 7.").

The noble Lord said: My Lords, I spoke to Amendments Nos. 21 to 23 with Amendment No. 10. I beg to move the amendments en bloc.

On Question, amendments agreed to.

Clause 6 [Circumstances in which less favourable treatment is justified]:

[Amendments Nos. 24 to 32 not moved.]

Baroness O'Cathain moved Amendment No. 33:

Page 4, line 21, at end insert: ("( ) In preparing a draft of any regulations under this section, the Secretary of State shall consult such organisations representing the interests of employers and of disabled persons and such other persons as he considers appropriate. ( ) Where the Secretary of State proposes to issue regulations, he shall publish a draft of them, consider any representations that are made to him about the draft and, if he thinks it appropriate, modify his proposals in the light of any of those representations.").

The noble Baroness said: My Lords, Amendment No. 33 is grouped with Amendments Nos. 40, 68, 72 and 79. All the amendments follow the same pattern. They all seek to achieve consultation on a consistent basis.

The Government now recognise specific consultation on three areas in the Bill, namely, in Clause 52 regarding fees for public service vehicles, in Clause 3 on guidance, and in Clause 38 concerning the issue of codes of practice. However, there are five areas where there is no such commitment. That results in inconsistency.

There is no commitment to consultation in Part II relating to employment. That is dealt with in Amendment No. 33, which relates to circumstances in which less favourable treatment is justified. The amendment, proposed by the CBI, seeks a specific requirement for consultation when the Secretary of State drafts and issues regulations which amplify or change the circumstances in which less favourable treatment may be justified.

Similarly, Amendment No. 40 also relates to Part H concerning employment. The pattern is the same. The amendment seeks a requirement for the Secretary of State to consult organisations representative of employers and of disabled persons when making regulations.

Amendment No. 68 relates to the regulation-making powers under existing Clause 15(4) which outlines the circumstances in which less favourable treatment may be justified. Amendment No. 72 is concerned with consultation, particularly in view of the fact that the main impact of the legislation will be through secondary legislation and additional burdens will fall on employers and business.

Finally, Amendment No. 79 relates to the regulation-making power in Clause 20(3) and amplifies the circumstances in which less favourable treatment may be justified in discrimination in other areas. That relates to Part III of the Bill. It relates specifically to discrimination in relation to premises.

Any attempt to diminish this demand for consistency of approach to consultation could he reinforced by the failure to afford proper consultation in the new government amendments. I beg to move.

Lord McCarthy

My Lords, we are pleased to support the amendments. The noble Baroness put them down either very late last night or early this morning. By the time I got round to them it was too late to amend them. That is why I want to say what I shall say in a moment, because although. we support the amendments we would want to add to them. How will the noble Baroness feel if her amendment is successful? How do the Government feel about the amendment? Amendment No. 33 states: In preparing a draft of any regulations under this section, the Secretary of State shall consult such organisations representing the interests of employers and of disabled persons and such other persons as he considers appropriate". Why should not the amendment include "employers and employees"? I request an answer to the question. The point was made in Committee by the noble Baroness, Lady Seear. That seems to me reasonable, useful and balanced. Amendment No. 16 inserts such a provision on the face of the Bill. However, if noble Lords can remember that far back this afternoon, that amendment was swept away by the success of the Government's previous amendment. We did not move Amendment No. 16, so we are bringing that discussion in now.

If one is to specify on the face of the Bill who should be entitled to consultation so that they know—that right would be on the face of the Bill—surely it is reasonable that we should not only include employers but representatives, and organisations of employees—trade unions, professional associations or other such bodies. After all, this Bill is half an employment Bill. Those people know what workers are likely to feel about the legislation and whether they are likely to resist some of the provisions. Those persons should be able to help and should be in favour of the intentions and aims of the Bill. That is why we should like such a provision in the Bill. We wish to know what noble Lords think about it.

Lord Campbell of Croy

My Lords, on a point of procedure, in moving Amendment No. 33 and speaking to the other amendments my noble friend has had the opportunity to put forward ideas and principles which she considers should be in the Bill. However, I assume that she will accept the proposal by the Government to leave out Clause 6. We discussed that in previous amendments. Therefore, the provisions of Amendment No. 33 would not remain. Is my noble friend proposing that something along the lines that she has put forward should be inserted in the replacements that the Government will put forward? Will such a provision be moved again at Third Reading? Alternatively, is she happy with what the Government propose to insert instead of Clause 6?

7.15 p.m.

Lord Swinfen

My Lords, I too should like to support the group of amendments. They are extremely sensible. It is quite obvious that there will be considerable variety in the kind of disability that people have who seek employment with regard to the equipment which has to be used, premises, the working practices, and so on. Therefore, very considerable consultation needs to take place. I am very glad that my noble friend has brought the provisions forward.

I should have thought that the suggestion made by the noble Lord, Lord McCarthy, was not necessary, and that employees would be covered by the words, and such other persons as he considers appropriate". However, I was rather concerned by the noble Lord's comment towards the end of his remarks. He intimated that some workers might be liable to resist the employment of disabled people. Yes, there will be some workers who would wish to resist the employment of disabled people, possibly through fear or prejudice. However, I should not have thought that in a Bill of this kind he would wish to put in any provision that would endanger disabled people and might possibly lead to discrimination against them. I am sure that the noble Lord did not mean that he was advocating any form of discrimination. However, I was rather worried by the words he used.

Lord McCarthy

My Lords, perhaps the noble Lord will allow me to explain. We know from the race, sex and disability aspect—the noble Lord knows better than I do—that there is resistance. I am saying that trade unions help to overcome that resistance. That is why they should be referred to on the face of the Bill.

Lord Addington

My Lords, I had noted the deletion of Clause 6 regarding the amendment moved by the noble Baroness. The basic principle of co-operation and exchange of information is one of the most important factors regarding removing discrimination. Such a provision will help.

I suggest that employer and employee organisations have an equally strong part to play. The simple fact is that they often bring forward individual concerns. I shall not waste time discussing the correct form of words. It is simply that those groups or bodies must find some input into the process.

I shall be interested to hear what the Minister says about the noble Baroness's amendment. The general thrust of her amendment is essential. If such a provision is not in the Bill we shall court more trouble and very soon find ourselves with another Bill.

Lord Henley

My Lords, perhaps I may briefly deal with the Clause 6 point. Until we reach Amendment No. 35, Clause 6 will still be in the Bill. Therefore, it is quite right and proper for my noble friend to move her amendment. Of course, I am hoping that the House will agree to Amendment No. 34 as it has already been discussed with Amendment No. 10, which has been accepted by the House. As to my noble friend's attitude after Clause 6 is removed, that is a matter for her, as is the matter as to whether the wording of a specific amendment ought to be changed to include the word "employees" as well as "employers".

I wish to speak briefly as to why we do not think these amendments are necessary, and to reassure the House that we have a genuine commitment to consult as widely as possible. I can assure her that we shall do so. It does not mean that it is right to place an obligation to consult on the face of the Bill. The same people and organisations do not always have similar interests in all of the powers. Indeed, one use of a power might be of particular interest to some organisations and another use of the same power of interest to entirely different organisations.

This might be the case, for example, where reasonable adjustments are concerned as some may be quite narrowly focused and be of concern to particular types of employer or particular sectors of industry or owners of particular types of buildings. We cannot cover everyone in this way. The use of the words, organisations representing the interests of employers and of disabled persons seek to identify the key interests. However, this may not involve the right interests when the powers—

Baroness Seear

My Lords, the noble really cannot get away with saying that those words obviously identify the main interests. Employees are a very real interest. If we wish the provision to work we have to get the employees on our side. It is quite untrue to think that there are not prejudiced people among employees. Employees have exactly the same proportion of saints and sinners as every other group in the community. They include people who are extremely prejudiced. If people are involved in introducing disabled people, they will accept them. If disabled people are imposed on them, they will not—and I speak from experience.

Lord Henley

My Lords, I think that the noble Baroness slightly over-reacts. I have given the assurance that all appropriate people would be consulted. What I sought to say was that I do not believe that it is necessary to identify such a list on the face of the Bill. I believe that it identifies the key interests; one could add employees as well. However, I seek to argue that it is not necessary to have the provision on the face of the Bill. Does the noble Lord wish to intervene?

Lord McCarthy

My Lords, the noble Lord keeps saying that it should not be on the face of the Bill. He never gives any reason why it should not be on the face of the Bill.

Lord Henley

My Lords, has the noble Lord not been listening to me? I was going to explain why it was not appropriate to list all those who should be consulted when on certain occasions there might be one group of interest which is relevant to consult, on other occasions it might be the whole gamut set out on the face of the Bill, and on other occasions it might be a much smaller group. It would not be right to impose a duty under the Bill to consult every body, every group or every interest on every occasion.

I have given a commitment and I have been trying to make it clear that it is entirely right and sensible to make that commitment to a practical, wide-ranging, timely consultation exercise before we use the powers. But the regulations—

Lord McCarthy

My Lords, can the noble Lord not see the difference? It is a difference between rights and privileges. If the name of a group is on the Bill, it is consulted, it knows it is consulted and it prepares itself for that consultation. No one says that because there are names in the Bill the Government cannot consult other people whose names are not in it. But if we wish to put the names of groups in the Bill, at least those people will know that they will be consulted. Otherwise it is entirely at the discretion of Ministers.

Lord Henley

No, my Lords. Again the noble Lord has not listened to me. I shall go on to explain it. I have said that there will also be occasions when it is not necessary to consult individual people. The regulations will exist far into the future and I do not believe that they should hind us to consult on occasions when it is not necessary to do so. For example, let us say that we are consolidating the regulations. That is a purely technical act which the noble Lord will understand. Does he suggest, as the amendments do, that we must go out and consult all the relevant interests merely for an act of consolidation? That is what the amendments say.

Lord McCarthy

My Lords, the Minister knows perfectly well that a consolidation Act is entirely different. If he wishes to bring forward amendments saying, "but not a consolidation Act", he can, if he wants to be silly.

Lord Henley

No, my Lords, if we are consolidating regulations, under the amendments we would have to do that. There would also be occasions when we only need to make or amend regulations covering a narrow area, say of reasonable adjustment. I believe that it would then be right to consult purely those who are appropriate. They may not necessarily be organisations representing employers as a whole, they may be organisations representing one group: the financial sector, the heritage sector or whatever it is. It would be wrong to impose a burden on the Government or those whom we consult of an unnecessary exercise. Remember, there is a burden on those whom we consult.

I am clear that we will consult and I can give that assurance to my noble friend. We shall consult in the most appropriate way for whatever regulations are under consideration. In the light of that commitment, I hope that my noble friend will feel able to withdraw her amendment despite the various obscurities suggested by the noble Lord opposite.

Baroness O'Cathain

My Lords, I thank the Minister for his reaction to my amendments. I am puzzled and slightly worried about the way the debate has gone. The Opposition obviously wish to consult employees, and that is a valid point. However, the point I make in moving the amendment is the lack of consistency. For the sake of neatness, we should be consistent on the face of the Bill because in some areas the wording is "consult" and the wording is specific about who is consulted, whereas in others it is not specific.

I absolutely accept that the Minister will consult. With everything that has been said on Second Reading and throughout the Committee stage, every time consultation has been brought up and again this evening there is the commitment to consult. I cannot understand why, if the Government have made that commitment—and I believe them—they still think it is better to have a Bill which is inconsistent on its face. Whereas in three specific areas there is consultation with named organisations or their representatives, in other areas, they are not prepared to do that.

It is a difficult problem. I do not wish to press the amendment to a Division tonight. I shall reconsider it and will almost certainly come back to it on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 34: Leave out Clause 6.

The noble Lord said: My Lords, I spoke to Amendment No. 34 with Amendment No. 10. I beg to move.

On Question, amendment agreed to.

Clause 7 [Duty of employer to make adjustments]:

Lord Henley moved Amendment No. 35:

Page 4, line 24, at end insert ("occupied by the employer").

The noble Lord said: My Lords, in speaking to Amendment No. 35, I wish to speak also to Amendment No. 38.

Amendment No. 35 is necessary in order to make it clear that the duty of employers to make reasonable adjustments where any physical feature of premises causes substantial disadvantage to a disabled person in comparison with those who are not disabled refers only to an employer's own premises. It clarifies that employers are not under a duty to make reasonable adjustments in respect of, for example, features of the disabled person's private house. It would also not apply to some other employer's premises in the case, say, of a travelling salesman or to the disabled person's private home in the case of a homeworker.

It may help at this point, to mention the issue of employers who are in rented property and the implications for the duty of reasonable adjustment. The status of terms and covenants in leases is an important matter. There must be a question as to whether or not covenants in leases are relevant to reasonable adjustment. We believe they are and we believe that there should be a limit on the extent to which covenants can prevent reasonable adjustments being made. Otherwise employers in leased buildings would be absolved from the need to make any adjustments—however reasonable—that were in any way in breach of the covenant. We will be giving this matter our careful consideration and making our position clear on this at Third Reading, when we shall table any necessary amendments.

Turning to Amendment No. 38, as noble Lords are no doubt aware, it is the Government's view that the duty on an employer to make an adjustment should provide a fair balance between what we can legitimately ask of employers and the needs of disabled people.

We have listened carefully to the concerns raised in another place and by employers and consider that it would be helpful to list the key criteria for "reasonableness" on the face of the Bill. We believe that the principal factors which should be taken into account in determining whether it is reasonable for an employer to take a step are as follows, in no particular order of priority: the first is the extent to which the step would prevent the effect in question. For example, if the only adjustments possible could make no more than a small improvement to the output of someone who was significantly under-productive, then they might not be reasonable if they were costly or disruptive.

The second is the extent to which it is practicable for the employer to take the step. For example, it might not be reasonable for an employer needing an employee urgently to have to wait for an adjustment to be made to allow a disabled person to be employed. That is more likely to be the case with smaller employers but could apply to larger ones. Also, an adjustment would not be reasonable if it is impossible because the employer would be in breach of health and safety or fire laws were it to be made.

Thirdly, there is the cost to the employer of taking the step. Cost includes use of staff and other resources and disruption, as well as direct money costs. We have always said that many adjustments will involve little or no cost to the employer. But some clearly do and it is obviously right that that should be taken into account.

Fourthly, there is the extent of the employer's resources. Although the size of a business is not necessarily an indication of the resources available, it is more reasonable for an employer with considerable resources to make an adjustment with a significant cost than for an employer with few resources. Also, it would not normally be reasonable for an employer to spend fewer resources on retaining a disabled person than on recruiting a replacement.

Finally, there is the availability to the employer of financial or other assistance with respect to taking the step. A step is not unreasonable if the availability of help from an outside organisation or from the disabled person would compensate for the factors that would have made it unreasonable. For example, it might be unreasonable on grounds of costs for a particular employer to provide a laptop computer with a Braille keyboard. However, if a suitable one could be loaned or borrowed when needed, for example under the access to work scheme, or if the individual has a suitable one he could provide, then the employer could not successfully claim that provision of the laptop was unreasonable because of the cost.

The code of practice would, of course, give further examples and guidance on the question of reasonableness. I hope that the House will be reassured by the criteria which this amendment proposes to set out on the face of the Bill. I beg to move.

Lord Carter

My Lords, it is interesting to see the way in which the Government have presented the amendment, because it relates to one which I moved in Committee about reasonableness on the part of public authorities. I was interested in the point which the Minister made about the covenants in property agreements by which the landlord, presumably, would not unreasonably be able to prevent an employer who was a tenant asking for improvements to the building to enable access.

The reason I raise the point is that I have a case in mind in which I am involved at the moment. It is of a company which employs disabled people and it has taken on an office in which a condition of the lease was that the landlord should provide a ramp for wheelchairs.

The landlord wishes to do so, but in order to do so the ramp has to be on the pavement, on the public highway. The highway authority has resisted that at the moment for various technical reasons with which I shall not bore the House.

I moved a probing amendment on the basis that a public authority should not be unreasonable in its attitude towards the provision of disabled access. The answer that I believe the Minister gave was that in the example that I gave the Town and Country Planning Act would take precedence over this Act and it could be pleaded in aid if it had been said that it would not be right to provide the access, namely a ramp for wheelchairs, even if it seemed to be reasonable to do so. I believe that the Minister said that the Government are considering this matter in the terms of the regulations that they may draft. They may have to think extremely carefully about the relationship between the employer tenant, the landlord and the public authority if the disabled access has to be provided on land that is owned by the public authority.

7.30 p.m.

Lord Henley

My Lords, I note the point that the noble Lord makes. His first point on covenants was in a sense something that I was flagging up. It is a problem that we perceive. It is wider than one thinks when one considers the number of employers who are in leased accommodation. I wanted merely to flag it up and say that we shall return to it at Third Reading.

Perhaps I may also examine the question of the three-way relationship between the landlord, the tenant and the local planning authority which might be in a position, either as the landowner or purely as the planning authority, whereby it might also have an interest. I accept that there could be complicated relationships. It might be better to pursue that by means of correspondence if it is felt that something is needed either by way of regulations or further amendment, along with amendments relating to covenants, at Third Reading. I am prepared to consider that, and I am grateful for the opportunity that the noble Lord has given me of flagging that up as well. I beg to move.

On Question, amendment agreed to.

The Earl of Courtown

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that Report stage begin again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.