HL Deb 13 June 1995 vol 564 cc1723-84

House again in Committee.

Clause 4 [Meaning of "discrimination"]:

Lord Wise had given notice of his intention to move Amendment No. 26:

Page 3, line 16, at end insert: ("( ) For the purposes of this Part, references to an employer who discriminates against a disabled person shall include references to an employer who—

  1. (a) treats a person who has a physical or mental impairment that does not have a substantial and long term adverse effect on his ability to carry out normal day to day activities, as having a substantial and long term adverse effect on his ability to carry out normal day to day activities; and
  2. (b) treats a person who does not have a physical or mental impairment as having a physical or mental impairment that has a substantial and long term adverse effect on his ability to carry out normal day to day activities.").

The noble Lord said: It is unfortunate that this amendment was not grouped with the first amendment of the noble Baroness, Lady Hollis. I could not contact her this morning to discuss it. I was unsure whether or not I could speak to it as it had not been grouped. However, both the noble Baroness, Lady Hollis, and the noble Baroness, Lady Farrington, have raised issues on this amendment which primarily seeks to ensure that a further group of disabled people are protected by the measures in the Bill. At this late hour I do not wish to reiterate many of the arguments that have been put forward. I am sure that it will be a great pleasure to your Lordships to hear that I do not intend to move the amendment; rather I will read very carefully what has been said and perhaps come back to it at a later stage.

[Amendment No. 26 not moved.]

On Question, Clause 4 agreed to.

Clause 5 [Circumstances in which less favourable treatment is justified]:

Baroness Hollis of Heigham moved Amendment No. 27:

Page 3, line 19, leave out from ("if") to end of line 23 and insert ("he shows that one or more of the conditions mentioned in subsection (4) below are satisfied.").

The noble Baroness said: I am sure that your Lordships are waiting in anticipation to see whether I will follow the eloquent path so swiftly followed by the noble Lord, Lord Wise. Alas, I feel that we must visit—your Lordships may say revisit—this issue. This is an amendment about the test of reasonableness. The amendment is concerned about whether, when and under what circumstances it is legal to discriminate against someone with a disability.

We all accept that there will be occasions when it is legitimate for an employer to discriminate against a disabled person. Those circumstances are set out in Clause 5(4). The conditions are: that the disabled person is unsuitable for employment; that the disabled person is less suitable for the employment than another person and that other person is given the employment; that the nature of the person's disability significantly impedes the performance of his duties; or that, in the case of training, the nature of the disabled person's disability will significantly reduce the value of the training either to him or to the employer. Regulations also allow for additional circumstances to be prescribed.

It is regrettable but we all accept that no one sensibly presses that blind people should become van drivers or, perhaps more controversially, that someone with a history of recurring violent schizophrenia should become a teacher of special needs children. We do not ask for positive discrimination but equal rights. A disabled person should not be disqualified by virtue of a disability that is not substantially relevant to the job to be performed. It is important for the Government to understand that under the amendment it will still be open to the employer, as under the race and sex legislation, to choose the best person for the job, so long as in his judgment the employer is not improperly influenced by conditions of the disability, as with race or gender, when these are not relevant to the job under consideration.

So far so good. However, the employer is allowed to discriminate, not if one of the four conditions is objectively met, but if in his opinion one of those conditions is met. If it is not unreasonable for him to hold that opinion, even though he may be wrong to do so, he is allowed to discriminate; in other words, those four conditions are not a test of whether or not he may discriminate but a test of whether or not he considers that he may discriminate. It is not a test of the disabled person's suitability but a test of the employer's state of mind.

I am sorry that the noble Lord, Lord Renton, is not here. We sparred on this issue a little earlier. What we have here is not a relatively objective test as to whether or not the disabled person can do the job, but a subjective test—the very thing that the Government went to great lengths to deplore on the first amendment—of whether or not the employer can hold such an opinion. Even though most people may not hold that opinion, it may still be within the realm of reasonableness. A disabled person's rights to fair treatment have been transmogrified into the employer's right to hold an opinion.

We are very uneasy about this. It would be very difficult for any disabled person to demonstrate to any tribunal that it was beyond the realms of reasonableness for the employer to hold the view that he did, even if the employer objectively was empirically wrong to do so. It is relatively straightforward for a tribunal to judge as an empirical matter whether or not the employer's behaviour is reasonable. What our amendment seeks to do is precisely that. It is much harder to do that if we leave the Bill unamended, because then the test is whether or not it is reasonable for the employer to hold the opinion that he holds. That is an inquiry into the state of mind of the employer—the very grounds on which the Government rejected the very first amendment today. As the Bill stands, one is asking industrial tribunals to adjudicate not on behaviour but on opinions, which is to follow a slippery slope.

In the brief that RADAR was kind enough to provide to me reference was made to the case of Hampson v. DES heard in 1989 in the Court of Appeal. That set out the ground rules for sex and race legislation. In that judgment, Lord Justice Balcombe said: It is not sufficient for the employer to establish that he considered his reasons adequate". Quite so. However, under this Bill without the amendment it will be. I suggest that disabled people are as much entitled to protection in law as is provided for under sex and race legislation. Without the amendment, if the employer thinks his reasons are adequate they will not be so protected. I beg to move.

Lord Addington

The noble Baroness has moved one of the more important amendments that we are to discuss today. If we refer just to opinion we are not even talking about informed opinion. We are referring to prejudice and to somebody who in effect does not know what he is talking about. If this is to be taken into account, we may as well not have large chunks of this Bill, for the simple reason that someone can make a judgment without knowing anything about the matter and just proceed on. If the Government are not prepared to accept this amendment, or something very like it, they will do damage to many of the good points in the Bill.

The Government always tell us that economics dominate everything. The opinion of an employer affects the way that many disabled people perceive their worth in society.

Unless the Government are prepared to accept an amendment along these lines, they are effectively wasting a good deal of their time and ours in putting this Bill on the statute book.

Lord Inglewood

Following the exchange of views between my noble friend Lord Renton and the noble Baroness, Lady Hollis, earlier today, it will come as no surprise if this particular amendment is not withdrawn.

Clause 5 deals with cases in which it is justifiable for an employer to treat a disabled person less favourably. To make a small point—some people might say that it is a pedantic point—the definition of discrimination is to treat a disabled person less favourably without justification. It is not in fact the case that, if actions fall within the scope of Clause 5 of the Bill, that, strictly speaking, can be described as discriminatory. In Clause 5(1) it is necessary that, in the employer's opinion, one or more of the conditions in subsection (4) are satisfied and that it is reasonable in all the circumstances of the case for him to hold that opinion.

A number of points have been raised in relation to that matter. I should like to spend a moment making one or two comments on them. First, it is not in fact the case that the proposition that something is reasonable is not the same as the proposition that something is not unreasonable. Secondly, reference was made to the fact that employers might be able to do something "even though most people do not hold the opinion". The fact that most people do or do not hold a particular opinion has very little bearing in this regard. Finally, we have had some discussion about inquiries into states of mind. It was not made clear whose state of mind was involved. Reference was made to the judgment of Lord Justice Balcombe.

The key words in the Bill as drafted are: it is reasonable, in all the circumstances of the case, for him to hold that opinion". The test of reasonableness here is an objective test. The judgment is not made exclusively from the perspective of any one person. If the matter goes to a tribunal and ultimately to the court, the assessment is made by the person sitting in judgment on whether it is reasonable for an employer in those particular circumstances to have acted in the manner that has been alleged. It is important that we are clear about that. It is not simply a subjective approach to the problem. It is an objective approach, bringing in a test of reasonableness which is a very well recognised test in English law.

The effect of the amendment is to ignore the fact that an employer is entitled to have legitimate opinions about whom he employs. It would make the conditions in subsection (4) become purely factual tests. It wholly ignores the important questions of judgment involved. To my knowledge there is not any wholly factual test of suitability for a particular job. It is certainly not a question of whether someone can do the main functions of a job. Suitability goes wider than that. Several applicants might meet such a test, but the employer still has to choose from them which is the most suitable. That must be a matter for the employer's judgment. This amendment removes the judgment from the employer and gives it to an industrial tribunal. A tribunal would have to decide whether applicant A, for example, was less suitable for the employment than applicant B.

The amendment also takes no account of the facts known to the employer at the time—if a disabled person performs badly at an interview (after any reasonable adjustment of course), under these amendments there would still be the "factual" question of whether he (or she) was "really" the most suitable candidate after all—which could be aired all over again before the tribunal. That would be quite wrong.

It is not a matter for a tribunal to make decisions of that sort. It is for the tribunal to decide whether it was reasonable in all the circumstances for an employer to believe that the individual was unsuitable. That is right. After all, we are dealing with the question of whether there was discrimination. We are not asking the tribunal to decide who was the most suitable candidate.

We must all recognise that it is important to create a proper balance between the concerns of disabled people and the legitimate interests of employers to make decisions in the best interests of their business. We shall certainly listen very carefully to the points that are made on this clause. But I cannot accept the suggestion contained in the amendment that tribunals are to pay no regard to the many legitimate issues of judgment faced by employers. There is ample protection for disabled people in the requirement that the employer's opinion must be reasonably held. I hope that that has given some reassurance to the noble Baroness.

Baroness Farrington of Ribbleton

I wonder whether the Minister can be pressed a little further on comparisons with cases which are taken before tribunals on grounds of sex discrimination. It is my experience that the issue that is considered is the issue of the most suitable person to have been appointed to the job. Ultimately, the criteria necessary for consideration as a candidate have to be met by people who are put on a short list. But then further desirable or advantageous qualities which the individual candidates possess and bring to the job, which are not necessary but desirable, are considered in detail by a tribunal. A comparison is made particularly between those qualities which are the desirable qualities for the person making the appointment. Those are then assessed and it is necessary for the employer to demonstrate that there was justifiable choice between the candidate who got the job and the candidate who was unsuccessful.

I cannot see why a different line is being taken in the light of the response that has just been given on behalf of the Government when the issue is one of disability discrimination. Surely the case that needs to be put by the employer needs to be equally strong when the discrimination is on grounds of disability as, for example, when the discrimination occurred on grounds of sex.

Lord Inglewood

I hope that I can be helpful to the noble Baroness. She has raised a question which is of great significance. The starting point of the Bill has been made clear on a number of occasions. We do not consider that the way to deal with discrimination in regard to disability is the same way in which one deals with problems of sex or race. I said that as a back-drop to my further remarks.

So far as concerns this particular Bill, we are concerned to ensure that there is no discrimination against disabled people on the basis of their disability, if I may so shortly describe it. Therefore, it does not follow that if someone does not get the job there has been discrimination; neither does the inverse proposition apply, which is that there can only be no discrimination if that person does get the job.

Perhaps I may explain how the process works. It is necessary for an employer to assess the merits of the candidates, however many there may be, as they are. Having assessed those merits, it is then necessary for the employer to "add on" reasonable adjustment. We may come later to arguing exactly what that means, but here we are looking at the concept.

One then adds on, by virtue of the reasonable adjustment provisions, advantages to particular employees who may be disabled. Once one has done that, one has to compare the candidates against each other in the ordinary way, if there were no disability issues present at all. I hope that that describes how these particular procedures would work. That is the basis on which any tribunal, were one to be ultimately involved in the matter, would approach the problem.

Baroness Farrington of Ribbleton

I must press this matter further. In the Minister's answer he said that comparison must be made between the candidates to assess whether discrimination had or had not occurred. Yet the proposals in the Bill do not allow the same degree of examination of that issue to the point of who was appointed and who was not, and whether the judgment on appointment was based on unfair discrimination against someone with a disability. The guidelines would not be as stringent as in a case brought on grounds of sex or race. Surely that process must be the same. I fail to see how the Government can say that they are protecting against discrimination on grounds of disability, but only partially protecting. Surely the stringency should be the same whatever the issue which is the alleged discrimination.

Lord Inglewood

The noble Baroness is obviously much more familiar with sex and race discrimination legislation than I am. I fear it is possible that I may have unwillingly and unwittingly slightly misled her. As regards these provisions, and as far as the test of whether or not discrimination has taken place in the context of an individual, it does not matter about the other people who might be interested in the particular job. Let us assume that we are talking about a job because it makes a description easier.

The issue relates to the individual concerned. If he or she is a disabled person as defined, there is a duty on the potential employer to follow the process of reasonable adjustment. That will vary from individual to individual depending on the nature of their particular disability. The general measure is described in Clause 6. Once that has occurred it is for the potential employer to determine whether or not the particular person fits the case. What the potential employer cannot do is to say that a particular individual is unsuitable because of certain aspects of his or her disability where reasonable adjustment would have ceased to be a problem for him. That is the way in which we approach it. If at a later stage some criticism is made of an employer and the matter goes to a tribunal, the argument will relate to that particular issue. As regards any one individual, the characteristics of anyone else who may have applied for the job will not be directly relevant.

Baroness Hollis of Heigham

That was a very helpful exchange. From what the Minister has said it seems to me that the problem is worse than I had assumed. The Minister seems to be saying, in response to my noble friend, that what the employer can do is to say that X is unsuitable because "reasonable cost" would not make him suitable even though the employer was misinformed because "reasonable cost" would have made him suitable.

If I understand the Minister correctly—we all accept that judgment is involved, and I do not believe that anyone challenges that—he has given any employer carte blanche to parade his prejudice and call it his judgment. I do not see how we can protect, as I am sure we wish to do, disabled people under this Bill in this way.

The Minister referred to the tribunal and said that it would decide not whether a person was the best candidate, but whether discrimination had occurred. As I am reminded, reasonableness is not simply a matter to be determined by a tribunal acting as an industrial jury. The phrase is that it is a "legal term of art" for which there is binding authority in unfair dismissal law requiring an interpretation allowing an extremely wide range of discretion to the employer. "Reasonable" is understood by industrial tribunals to mean something within a band of reasonableness. Only if that action is outside that band of reasonableness can it be characterised as not reasonable.

The noble and learned Lord, Lord Denning, in the case of British Leyland v. Swift (1981) said: The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view; another quite reasonably take a different view".

In other words, an employer's opinion can be said not to be reasonable only if no reasonable employer would have held that opinion. That is the problem we are up against. We have gone down the slippery slope into a subjective assessment of whether all reasonable employers would have acted in that way, and, if even one did, it would be acceptable under the Bill as framed.

We are dealing with what is in the employer's head, which is a subjective test. That is what we are asking that the rights of disabled people should depend upon. Having received some extra paper, I do not know whether the Minister wishes to comment. It would be helpful. It is important to push the Minister further to see what is his thinking before deciding what we do about the amendment, perhaps on Report.

9.15 p.m.

Lord Inglewood

The noble Baroness is trying to push me as far as she can. I fully understand that that is the name of the game. The first point the noble Baroness made was about an employer parading his prejudice. If an employer paraded his prejudice, however wide the bands of reasonableness might be, he would have left those bands behind him.

I return to one of the key features of the way in which the Bill has been drafted. It was a point to which I alluded in my earlier remarks. In simple terms it is that the tribunal will not usurp the employer's role. I tried to make that clear in my earlier remarks. The employer operates within a degree of flexibility. I concur with the comments of the noble and learned Lord, Lord Denning, in this context. They struck me as being helpful. They underpin the case that the Government are making. Individual employers, be they businessmen or whatever, will operate within a band which, according to their particular circumstances and approach, they will wish to adopt in conducting the affairs with which they are dealing. That is called judgment. It is called discretion.

Beyond certain limits, one enters territory which any ordinary person, be he a member of a tribunal, a High Court judge, or any other sensible person, would clearly say is unreasonable. What we believe is appropriate in the context of this Bill is, on the one hand, to help disabled people by ensuring that their disability is not held against them in a discriminatory manner, while at the same time ensuring that those people who are responsible for running the business, those people who are employing people, can still exercise that discretion which any reasonable judge of what they were doing would allow them to do. That is the crucial point which is at the core of the Government's approach. I hope that I have described it clearly and in a way which, if not accepted by the Benches opposite, is at least understood.

Baroness Hollis of Heigham

I was disappointed in that reply. How can we ensure a disabled person's rights not to be discriminated against in the field of employment? If two employers are faced with an identical job situation and, let us say, with a person with the same degree of impairment, one could make one decision and the other could make a different decision. Everything the Minister has said suggests that in a situation with two identical job descriptions and two identical candidates in, let us say for the sake of argument, an identical field, one employer could make one decision and another could make a different decision, because, as the noble and learned Lord, Lord Denning, said, there is a band of reasonableness within which one employer might reasonably take one view; another might reasonably take a different view.

The difference between those two employers is not about anything that is objective, it is about their state of mind. It is their perceptions; it is their attitude. It is no good saying it is their judgment or discretion; it is attitude. If whether a person has a case or not depends upon the employer having that attitude, then we have gone down the slope I feared, which is the slippery slope of subjective judgment.

When it suits the Minister, because we are worried about perception, as in the first amendment, or, had we spent a little more time on it, the amendment moved by the noble Lord, Lord Wise, the Government insist we are talking about objective disability. When it comes to discrimination, it suddenly becomes subjective discrimination, because it is all about judgment and the test of reasonableness.

The Government cannot have it both ways, otherwise disabled people will lose out on the test of disability and the test of discrimination. The Government will have set it up in that way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 28:

Page 3, line 21, at end insert: ("( ) the employer has taken appropriate expert advice as a basis of his opinion; and").

The noble Baroness said: To some extent the amendment follows on the previous discussion. It purpose is to ensure that the employer's opinion about the extent of disability is not merely trivial or based on prejudice; perhaps rejecting a disabled person because his appearance is not deemed suitable for the employment in question. The effect of the amendment would be that an employer would have to seek expert advice on the suitability of the disabled person to carry out the essential duties of the employment.

Under the Further and Higher Education Act 1992 the funding councils for both further and higher education are required to have regard to the needs of students with learning difficulties and disabilities. In order accurately to assess those needs and to make appropriate provision, the funding councils are required to seek expert advice. The amendment would require potential employers to seek appropriate advice in order to arrive at an accurate and informed assessment as to whether a person's disability would be likely to prevent him or her from being able to carry out the duties associated with the prospective employment.

The organisations which specialise in assisting the disabled can provide numerous examples which appear to indicate that what is proposed in the amendment is necessary. Perhaps I may quote an example that I have been given by one of those organisations. Within the past year a partially sighted employee was dismissed from his employment with the National Car Parks organisation because he was unable to carry out his duties with the small screen provided with the computer in the office. Had the employer been obliged to seek expert advice, he would have discovered that the employee could have done the work quite well with a larger screen and, moreover, that the cost of providing the screen could have been borne under the access-to-work scheme.

If we are to take non-discrimination seriously we must ensure that such cases do not happen and that people who could quite well carry out jobs are not kept out of them through ignorance or prejudice. Earlier today we had a great deal of discussion about the organisations to be available to give advice and I hope that we shall not now revisit that discussion. However, it appears that, as regards students, expert advice is available for funding councils under the Further and Higher Education Act 1992 and therefore it ought to be available to give advice to employers to the kind of circumstances to which I have referred.

I hope, in particular in the light of our recent discussion, that this time around the Government will be prepared to lend a favourable ear to what we have been saying. I beg to move.

Lord Addington

I support the amendment for the simple reason that it removes many of my objections to the part of the Bill that we discussed in the previous amendment. Surely, informed opinion is to be preferred over uninformed opinion. If an employer is making a decision on the grounds that he knows what he is talking about, as opposed to what he perceives from an uninformed point of view, he is more likely to make a reasonable decision.

A provision such as this should be included in the Bill. We should ignore the idea of acting on prejudice. If we remove the possibility of uninformed prejudice, we shall remove many of the situations in which discrimination is taking place. I hope that the Government will take the proposal on board. If not, they will be creating more situations in which the courts and tribunals must sit. Requiring people to take on board knowledge will help on all sides.

Baroness Gardner of Parkes

I find this amendment rather worrying as it seems almost to indicate that we wish to discriminate positively in favour of disabled people. I do not think that disabled people would want that. This is meant to be a Bill to avoid discrimination, but it should not impose very considerable burdens, and I consider that to have to take advice from an "appropriate expert" would be extremely costly.

In our last debate it was said by the noble Baroness, Lady Hollis, that employers would have different views. I can tell the noble Baroness that experts too have different views, and half a dozen experts would have half a dozen different views. Therefore, that presents a problem.

I have sat on an industrial tribunal for 20 years. Every aspect of every case is considered extremely carefully. In 20 years, I believe that there has been only one case on which there was disagreement among the three members of the tribunal. Usually as the facts emerge, it becomes quite clear cut, one way or the other.

Baroness Lockwood

I am surprised that the noble Baroness, Lady Gardner, regards this as a positive discrimination aspect of the Bill. It merely seeks to provide advice to employers before they take certain decisions which might lead them to an industrial tribunal. In that event, the tribunal would have to decide and give advice.

When we discussed the matter earlier, one problem that was referred to was the fact that if there is no central body to assist individuals, there could be many individual cases going to different tribunals and the different tribunals may make different judgments.

If there were someone or a team of people who were centrally based who could give advice on what is regarded as "reasonable", then the number of cases to go before tribunals would be reduced. But assuming that cases go before tribunals and that, because of the vagueness of the clause, appeals are taken from the tribunals to an appeal court, then you would begin to have a legal code on the interpretation of the legislation.

In that case, it would be extremely helpful for advisers to be available to advise on what was the authoritative interpretation. Inevitably, in the early stages, mistakes will be made. But we want to minimise those, to have what would be a national code on the interpretation of the Act. The proposal made by the amendment would be a great help in that respect.

Lord Rix

Would it not be possible for the amendment to be amended so that it reads that: the employer has taken appropriate expert advice from the National Disability Council", whatever that may end up as being? Surely that is the body to be put in place to give advice on all such cases.

Lord Monkswell

Perhaps we should consider the situation from the point of view of the employer. He has difficult decisions to make when dealing with disability and the employment of disabled people.

As the Bill is currently drafted, the interpretation is that it is down to the employer, in his reasonable opinion, to make a judgment. We must be concerned with a situation where the employer, not taking any advice from anybody, says, "I think this is reasonable". He engages in a course of action; he does not employ the disabled person because he thinks that it is reasonable not to do so; he is then taken to an industrial tribunal. That tribunal then says, "We do not think that what you did was reasonable". Therefore, the tribunal finds against him.

It seems to me that it would be useful for the employer to be able to offer in his defence that he had taken expert advice. That is the way that I would read what is proposed by the amendment. If an employer is faced with a claim of discrimination, it would be a good defence to be able to say that he had taken expert advice regarding the action that he took. I see it as a support for the employer rather than the other way round.

9.30 p.m.

Baroness Gardner of Parkes

I should like to take up the point just made by the noble Lord, Lord Monkswell. I quite agree with him. I think that it would be very desirable for the employer to take such advice. However, I believe that the proposed amendment is placing an obligation on the employer.

Baroness O'Cathain

I should like to support the remarks just made by my noble friend Lady Gardner of Parkes. It seems to me that if we put such a provision into the Bill we would have a situation where, again, we would be loading additional costs on the employer. After all, an employer who runs a business and is used to employing staff must take a reasonable view of employment in every operation, unless he is a real cowboy employer. If he does so, surely, based on his experience and expertise, and his judgment, he is credited with being able to make such a decision. If the matter goes to an industrial tribunal, I am quite convinced that a reasonable employer would obtain expert advice at that stage to ascertain whether or not he had made the wrong decision. However, to say to an employer that he must take expert advice at every stage in such situations would be to put much onus on him as regards extra costs because expert advice does not come cheap.

Lord Ashley of Stoke

I am less concerned with the poor employer, as the noble Baroness put it, than I am with the poor disabled person who may suffer such discrimination. I see that the noble Baroness wishes to respond. I give way.

Baroness O'Cathain

The last thing that I would like the noble Lord, Lord Ashley, to think is that I do not consider disabled people. I am involved in the proceedings solely because I believe that the Bill will enable disabled people to have an able-bodied existence in every way throughout life—for example, in employment, in access to goods and services, and so on.

I sincerely hope that what I said will not be taken to mean that I do not take such matters into account. That is my starting point. However, I am also aware that if employers are overloaded with costs at every turn, their competitiveness will be so eroded that they will not have the ability to employ anyone, let alone disabled people, because that business will not be a success.

Lord Ashley of Stoke

If I may say so, it is a very old story to say that the provision would overload employers with excessive costs and interfere with competition. Indeed, we have been through it many times in both this and the other place. But, in point of fact, that is not possible under the Bill because it specifically says that there must be no unreasonable burdens placed on the employer. Therefore, the noble Baroness can rest a while and not worry about the poor employers because the legislation will prevent any excessive burdens being imposed upon them.

It puzzled me to hear the noble Baroness, Lady Gardner of Parkes, arguing against expert advice for employers. To me, that is a very strange kind of thesis. I do not see how the proposal can be classified as discrimination because employers need expert advice; indeed, it is certainly something which would be wholly beneficial for them. All we are asking is that employers do take "appropriate expert advice". What is wrong with that?

Baroness Gardner of Parkes

I believe that it would be excellent for advice to be available to employers, as the noble Lord, Lord Monkswell, suggested. However, as I see it, the amendment would place an obligation upon the employer to get such advice. That is the difference.

Lord Ashley of Stoke

The amendment seeks to place an obligation on employers because some employers need such advice. I have in mind those who are prepared to discriminate and who will not take such advice. That is why we want to impose an obligation upon them. They are the kind of people who will say, "No one will tell me how to run my business. If I want to discriminate, I will do so". It is because there are such employers that we seek, as reasonable people, to put the reasonable obligation upon all of them to obtain such advice. That is all.

Lord Vinson

Will the noble Lord be kind enough to tell me how many people he has employed in his life and how many problems regarding the difficulty of trying to come to a fair judgment he personally has had experience of?

Lord Ashley of Stoke

I can tell the noble Lord that I was a shop steward for many years—

Lord Vinson

That is not the same!

Lord Ashley of Stoke

I will answer the question in a moment. I learnt that there are some employers one has to talk to with a strong voice. I do not apologise for not having been an employer but I can tell the noble Lord that I have had eight years of experience in industry working closely with workers of all kinds and negotiating closely with employers as a shop steward, so I think I know what am talking about.

Lord Vinson

Thank you very much for making that point and thank you for making it clear that you have not actually employed anybody nor gone through the difficulties that that involves. Thank you.

Lord Ashley of Stoke

I am glad to respond to the point because it does not in any way vitiate the points I am making simply because I am not an employer. I think that was one of the cheapest debating points I ever heard in either Chamber. It is of no relevance. I should like to ask the noble Lord—

Lord Lucas

May we return to the Bill please?

Baroness Seear

I would have thought that it was not at all unreasonable that the Government should pay for this expert advice. In the old days one used to get any advice from the factory inspectors. Sometimes it was good and sometimes it was not, but at least one got it for nothing. If the Government want to implement this measure, I see no reason why they should not lay on the available expert advice, if they can find it. I must say I am a bit bothered as to where all these experts are going to come from. To picture the small employer with about five employees—these are the people you will get trouble from—finding the right expert advice and paying for it seems to me to be living in cloud cuckoo land. We want something of this kind to be done, but I am bound to say that I do not think the measure in the form in which it appears here will work. But I do think that at least the Government might take responsibility for the cost of providing advice and should tell us where these experts are to be found. We are inclined in this Chamber to speak as if there were a whole lot of independent experts floating around.

Baroness Hollis of Heigham

There will be!

Baroness Seear

Yes, and three-quarters of them will not be worth the money one pays for them. That is one of the big difficulties. I think the objective behind this issue is right, but we need to think it through a great deal more carefully than it has been thought through up till now.

Baroness Farrington of Ribbleton

I speak as someone who has made many appointments and been an employer since 1977; and I speak as someone who has been taken before an industrial tribunal and cross-questioned on two cases of alleged discrimination. I was found guilty in one of them, although I was not present when either of the appointments was made. Those appointments involved staff who were already in our employment and they concerned promotion, which is a matter which has not been raised so far in our debate. I would say that the matter of what constitutes appropriate advice must be a matter of judgment.

Drawing on that experience, what concerns me is that there was a period of time when a bald assertion used to be made by people appointing head teachers, for example, that a woman head teacher was unable to exert the disciplinary control necessary for a school which contained boys, either a co-educational school or a boys' school. That assertion was made. However, it was possible to obtain expert advice that that assertion was nonsense. It was also asserted that it would be impossible for teachers with a fairly severe physical handicap to be able to teach children in a classroom. Expert advice demonstrates that it is possible, all other things being equal, for teachers with quite serious physical handicaps to be good and satisfactory teachers. I am not arguing for automatic appointment in those circumstances.

What worries me about the debate to which I have just listened is that most people who discriminate—in my experience which stretches over many years—do so through ignorance rather than through prejudice. The problem with discrimination through ignorance is, by its nature, that those who are ignorant do not know they are ignorant.

Therefore, the issue is to require people to check what is possible. There are many voluntary organisations which can offer evidence that it is possible for somebody who is blind to be a hotel receptionist, for example. People should also be required to check whether it is possible and reasonable to make minor adaptations to equipment.

It may be that the amendment will not be pushed to a vote tonight. However, I feel that those who believe that there is an army of people who are knowledgeable, well read and up to date in what is possible, or that there is a mass of people out there just waiting to be prejudiced are both wrong. The problem is that we have grown up in a society—and I have spent 55 years in such a society— where the "do they take sugar?" approach permeates our whole attitude. Therefore, we have to require employers who are minded to say that a particular person could not do a particular job because they cannot see, are not physically mobile, cannot hear, or for whatever reason, to check those bald prejudices at the beginning. It is in their interests, but not only in their interests. It is also in the interests of people who are trying to break out of the vicious trap that they have been pushed into.

Lord Carter

Before the Minister responds, perhaps I should say that I am qualified to satisfy noble Lords opposite. I am an employer and I have employed disabled people.

I am not sure whether the Committee is aware that there is a substantial growth area in disability awareness training. If Members of the Committee opposite are worried about the lack of experts who can advise employers about problems relating to disability, large numbers of people are available. They are disabled people.

Lord Rix

I am sorry to intervene again. I must also declare an interest. I have been an employer for 49 years.

I suggested earlier that the national disability council might well be the arm to which the amendment could be referred. Unfortunately, as it is presently constituted under Clause 23(4) of Part IV, The power conferred by subsection (3) does not include power to confer on the Council any functions with respect to the investigation of any complaint which may be the subject of proceedings under this Act". I hope that that is something that we shall consider when the amendments of the noble Lord, Lord Swinfen, are moved on Thursday.

If that point in relation to the national disability council could be considered closely that would satisfy Amendment No. 28 in regard to the appropriate expert advice. That advice could come from the national disability council itself.

9.45 p.m.

Lord Inglewood

We have had a worthwhile, sparky and useful debate on this subject. It seems to be held in some parts of the Chamber that there is a shortage of experts on this topic in the outside world. There is certainly no shortage of experts in this Chamber this evening.

The effect of the amendment would be that an employer would have compulsorily to seek expert advice every time he had to make a judgment about how to deal with a disabled person for a reason which related to the disability.

Perhaps I can begin by referring to a point raised by the noble Baroness, Lady Seear. In Clause 7 of the Bill, there is a threshold below which Part II of the Bill will not apply. As currently drafted, that threshold is 20 employees. Therefore, the types of case with which the noble Baroness was concerned would probably fall outside the scope of what we are discussing now, certainly in a legal if not in a practical sense.

We do not differ in believing that employers ought to seek help and assistance, if they need to do so, when making a decision about whether less favourable treatment is justified. The duty under the clause is unlikely to be fulfilled in many cases unless the employer is either knowledgeable or seeks advice from a knowledgeable source on disability. However, where we differ is about the need to make it compulsory to seek appropriate advice before he can make the decision.

There are many factors involved in coming to a final decision about, for example, taking on an employee. An employer may or may not need to seek advice about any particular factor during that process. However, a large employer with wide experience of employing disabled people might not need to seek advice because he may already have that knowledge or it may be available in-house. It is not clear though whether that would satisfy having taken "appropriate" expert advice. What does "appropriate" mean in this context? To go back to where I began, who is an "expert"? When all is said and done, one is at perfect liberty to take advice from whomsoever one wishes.

The noble Lord, Lord Rix, raised the question regarding the National Disability Council. I have not been able to check the provisions of the Bill. However, I believe that I am right in saying that the council will not investigate complaints. But it could offer advice and no doubt if it were asked it might have some views. Perhaps I may be forgiven for promoting my own profession. It is always possible to seek expert advice from a lawyer if one cannot obtain it from elsewhere.

With regard to the point made by the noble Baroness, Lady Seear, free advice is normally worth what one pays for it. One has to be a little careful about that.

Baroness Seear

The factory inspectors on the whole gave quite good advice for nothing.

Lord Inglewood

However, there will be much helpful advice available from the Employment Service and placement and counselling teams. No doubt many other bodies will be able and willing to provide effective advice. I refer to voluntary bodies and citizens advice bureaux about which we spoke earlier. It is not for the Government to restrict employers' ability to seek their own appropriate advice, nor indeed to fund all the advice that an employer may feel he needs or wants.

It is clear that there will be many cases, perhaps a majority, in which an employer could fulfil his duty without the need for any advice. In a case where the employer may need advice there are a number of options open to him. The Government believe that the decision as to whether or not advice is needed must remain with the employer, as must the decision as to where he obtains that advice, if he needs it. That seems to us sensible.

As noble Lords will see when we debate Clause 26 later, the code of practice will give guidance on the ways in which an employer can fulfil his duties and will be subject to wide consultations. I hope that that will reassure Members of the Committee.

Contrary to what has been suggested, the Bill requires that an employer's opinion must be reasonably held. I do not wish to go back over the debate on the previous amendment. In cases where there is a genuine uncertainty about the effects of a particular disability, tribunals will ask what steps an employer took to examine that issue. As my noble friend Lady O'Cathain said, on occasions there will be an evidential need to show that advice has been taken to establish the position of the employer. On the other side of the coin—it was a point made by the noble Lord, Lord Ashley—the people who most need the advice will not take it. One can take as much advice as one wishes; but one will not act properly on it. That will not advance the case of the disabled person one jot. We believe that the approach outlined is the right way to deal with the problem, and not to impose an unnecessary and burdensome procedural requirement of this kind.

Perhaps I may touch briefly on two further points. The noble Baroness Lady Turner cited a case relating to someone working for National Car Parks. I do not know the details of the case, but it seems to me that on the basis of what she described the circumstances would be discriminatory and the provisions of Clause 3(2) (d) of the Bill would come into effect. There would be a duty in those circumstances for an employer actually to carry out reasonable adjustment.

I wish to touch briefly on the point made by the noble Baroness, Lady Lockwood, about a code. Guidance will be provided on these matters. But it inevitably will be the case that where a new legal order comes into being, it will take time for a code to develop. That is inevitable. Unfortunately, no doubt over time there will be decisions which go to industrial tribunals; and tribunals—and beyond them possibly the courts—will make judgments which will then build up the code. However, that will take place over time. One cannot instantly accomplish that bearing in mind the nature of the judicial process.

I hope that Members of the Committee will feel reassured by what I said about the practical help and guidance which will be available to employers of disabled people. I do not believe that we should place unnecessary requirements on employers. It is on that basis that I invite the Committee to reject the amendment, if it is put to the vote, or the proposer to withdraw it.

Baroness Hollis of Heigham

Before my noble friend responds to the Minister and decides what to do, I should like to ask the Minister a question. I was surprised by something he said and I may have misunderstood it or there may be some aspect which I did not understand. In response to the noble Lord, Lord Rix, he suggested that there was a body, the National Disability Council, which could help. The noble Lord, Lord Rix, asked whether that body could give advice to individuals, employers and organisations and be the expert body. As I recall, the Minister said that it could do so but it would not have the power to investigate complaints. He gave the impression that the body could give advice to employers and organisations but not investigate complaints. Can the Minister tell me where in Clause 23 or Schedule 3 that power can be found?

Lord Inglewood

In my remarks to the noble Lord, Lord Rix, I said that I had not turned up the relevant provisions of the Bill before I made my comments. Institutionally, the body cannot give advice, but the point I wished to make to him was that if someone were casting around, with nowhere else to go, they might find they could be helped by contacting that body. It would not be able to give expert advice but might help as a longshot on where a person might find it.

Lord Rix

Before the Minister sits down, as far as I read Part IV of the Bill, it seems to lay down that the National Disability Council can only give advice to the Secretary of State. It seems to me to be onerous for a person seeking employment to have to go to the Secretary of State to get matters clarified.

Baroness Hollis of Heigham

That is the point I hope the Minister will address. I can see no powers under Part IV, Clause 23 or the relevant schedule that would allow any direct giving of advice by the National Disability Council to anyone other than the Secretary of State, except through the mechanism, say, of the code, at the request of the Secretary of State.

Lord Inglewood

The noble Baroness is quite right; she cannot see that provision in the Bill and I must have seen the wrong wording. The answer is that the NDC cannot advise on employment matters although it will be involved in issuing codes of practice to businesses on the provision of goods and services. I should not have tried to think on my feet.

Baroness Hollis of Heigham

Given that the Minister accepts that there is a need to give advice, and that in response to the suggestion of the noble Lord, Lord Rix, he accepted that the National Disability Council might be an appropriate body to give such advice, can we express the following hope? It is that when we revisit the subject in Committee when we reach the National Disability Council, the Minister will make it clear, as he has done, that he would welcome the council having that additional function.

Lord Inglewood

In my comments, I made it quite clear that the Department of Employment is in a position to give advice. That seems to cover the noble Baroness's point.

Earl Russell

I listened carefully to the Minister's reply. As a Liberal, I can understand the case that he made against compulsion, but there is still a problem. I have not heard an answer to the point made by the noble Baroness, Lady Farrington, that those who are ignorant do not know that they are ignorant. I wonder whether there is a case for reconsidering the wording of Clause 5(1). Perhaps the words which constitute a red rag to some of us on this side of the Committee are the words "in his opinion". I understand what the Minister said, that that is subject to a test of reasonableness. But an employer reading it in a hurry—one is always in a hurry when one has a lot to do—may see it as simply entitling him to think what he thinks. Would it not be better to have a phrase suggesting that the employer must have good cause for believing that one of the conditions in subsection (4) is satisfied? That would give a rather plainer signal to the employer that there is a burden of proof which he must shoulder.

Lord Inglewood

I have a feeling that we are going back to what we were debating three or four weeks ago in the context of the Jobseekers Bill. As I understand the way the Bill has been constructed, the change to which the noble Earl referred would not add anything to what is in the Bill. We are always willing to contemplate the detail of the drafting and we will put our minds to the detailed drafting of the clause. There is nothing that is incapable of improvement. However, I do not believe that the form of words which the noble Earl proposes as an amendment would in any way alter the substance.

Earl Russell

I admit that the change I proposed was cosmetic, but the effect of a cosmetic change may occasionally be interesting.

Lord Swinfen

Before my noble friend replies to that, the court can decide whether there is good cause much more easily than whether someone holds a correct opinion. Opinion is nebulous where good cause is not.

Baroness Farrington of Ribbleton

It is extremely important that we establish beyond any shadow of doubt that ignorance will not be a defence and that somebody saying they had never known anybody who had a serious or difficult disability managing to work in a particular job or particular set of circumstances could not be considered to have good cause. Therefore the onus is on the employers to take advice if they are about sweepingly to use prejudice to rule out of consideration all the suitable people who happen to have disabilities.

Lord Inglewood

I think I can most easily respond to that by simply saying that ignorance is not an excuse. The whole point here is that the person concerned has to act in a reasonable manner. I talked earlier about the band of reasonableness which the noble Baroness, Lady Hollis, has referred to, quoting, I think, the noble and learned Lord, Lord Denning. Ignorance is way beyond the band that "reasonableness" encompasses.

Referring to the point made by noble friend Lord Swinfen, I really do not think that applies. Our courts are very experienced and are used to dealing with matters such as these. They can come to these conclusions perfectly satisfactorily on the basis of the wording that is contained in Clause 5.

Baroness Turner of Camden

We have had an extremely interesting debate on what I thought was a very simple amendment. I want to make the point very strongly that in drafting this amendment, we had not in mind positive discrimination. We wanted to ensure that decisions, when they were made by employers, were made on the basis of experienced opinion rather than on the basis of prejudice. I think, as has become apparent during the debate, a number of noble Lords on all sides of the Committee believe that many employers are prone to prejudice in regard to the appointment of disabled people.

I myself for a long while was in charge of staff, though not specifically as an employer, and I always did my very best to abide by the quota system that we then had. Sometimes it was a bit difficult because not all disabled people were willing to register under the quota system; but I, along with many others in the employing situation, did my best to ensure that disabled people did have a fair chance to obtain employment. It is quite true that many employers exist who will give disabled people a chance of reasonable employment.

The problem about legislation is always that you have to legislate for the worst possible people. The reason for legislation is to maintain standards. If all employers were reasonable employers, decent employers and fair-minded employers, we would not need legislation of any kind—just a few injunctions from the Government. We need legislation because there are bad employers, ignorant employers and employers who will probably not abide by legislation unless it has some force behind it. Because of that we wanted to have something written into the Bill which would make it necessary for employers not to rely simply on prejudice or on what they thought to be the situation with regard to the possibilities of the disabled person being able to conform with the requirements of the job, but that they would have to take skilled and expert advice in order to do so. I believe, as my noble friend Lord Carter has said, that there will be plenty of such advice available.

I believe that it is necessary to have some measure of compulsion; otherwise I really cannot see the legislation working in the way the Government say they want it to work. As to the point raised about the National Disability Council, my noble friend Lady Hollis has dealt with that point adequately, although I would point out, as I understand it, that the council will have a relatively small budget: something like £250,000. So it is not going to have very much money available in order to provide the kind of expert advice and assistance that is envisaged in the original amendment.

Obviously, I shall not press the amendment to a vote at this hour of the night, but I am not very happy about the way in which the Government have responded. I note that there will be a code of practice. I note what the Minister has to say about the case that I quoted, and that a clause in the Bill would have covered the situation in regard to that particular employee. Nevertheless, we ought to look again at the situation with a view to perhaps coming back with something redrafted on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Baroness Turner of Camden moved Amendment No. 29:

Page 3, leave out lines 35 to 37 and insert: ("( ) the disabled person is unable to satisfy an important requirement or qualification relating to the employment; or ( ) the disabled person is less able to satisfy an important qualification or requirement relating to the employment than another person and that other person is given the employment;").

The noble Baroness said: In moving this amendment I should also like to speak to Amendments Nos. 30 to 33, 35 and 36. These amendments all cover much the same kind of ground and have much the same kind of objective. They are concerned with the whole issue of suitability.

The purpose of this amendment is to replace the somewhat open-ended defence as to whether a disabled applicant is suitable with the more job-related criterion as to whether the disabled person is the best person for the job in terms of the job's important qualifications or requirements.

A defence related to whether the employer reasonably believed that a disabled person was or was not suitable could risk allowing an employer to shift the blame for discrimination to the prejudice of customers or to other employees. To allow such a defence is likely to drive a coach and horses through the legislation, and perhaps even bring the law into disrepute. An employer who attempted to defend refusing to appoint a black man to a sales position because the customers would not like it, would clearly get short shrift, and very rightly so because such less favourable treatment would clearly not be lawful. But what about an employer who refuses to appoint a disabled person to a sales post because it might disturb the customers? The employer might well argue that this meant that the disabled worker was less suitable than a successful candidate who was not disabled.

The employer might unfortunately be able to demonstrate that his customers would prefer to be served by someone who was not disabled. What will happen if the employer defends his decision on the grounds that the disabled person made other employees feel uncomfortable? Surely this cuts across the grain of legislation intended to prevent discrimination.

The proposed wording attempts to preserve the merit principle and would not interfere with the right of employers to choose the best person for the job, based on qualifications and requirements laid down.

Similar considerations inform the other amendments which are grouped with this one. Again, we are concerned that there should be appointment on merit, but that people should not be debarred simply because they are disabled and some other kind of excuse be used, stating for example that for some other reason they would be unsuitable. All the amendments in this group cover much the same sort of situation.

The amendment that refers to essential duties, again, refers to duties that are essential to the job. The intention is not to allow a situation in which an employer could discriminate against a disabled employee for not being able to perform what could be regarded as a peripheral function of the job rather than the core requirement. I believe that all the amendments are self-explanatory. They cover the whole issue of whether or not it is reasonable to allow the employer to rely on suitability in the broad terms stated in the Bill, rather than on ensuring that individuals are assessed on their ability to do the job involved and on the merits of the individual in each particular case. I beg to move.

Lord Renton

I wonder if it has occurred to the noble Baroness that the amendments she proposes are contrary to the interests of disabled people. I deal first with Amendment No. 29 which puts the burden of proof on the disabled person to satisfy what is described as an important qualification or requirement relating to the employment". As I read the clause, which is quite complicated, the burden is on the employer. It is not fair to shift the burden of proof to the disabled person as Amendment No. 29 does.

I refer to Amendments Nos. 30 to 32. Those amendments could not be made to the Bill if Amendment No. 29 were to be accepted. I am glad to see that the noble Baroness agrees with me. Those amendments are alternative to Amendment No. 29. I believe that those amendments give the employer better reasons than they give to the disabled person. Referring to Amendment No. 33, quite frankly it is unnecessary and adds nothing to the meaning or effect of the subsection to which it relates. Therefore, I would be astonished if the Government felt able to support any of these amendments.

Baroness Lockwood

The amendments may not be well drafted. I will not argue about that. But the principle behind the amendments is an important one. I should have thought that they would be acceptable to the Government. The Government said in their consultation document that appointments should be made on the basis of the merits of the person to do the job. The principles that my noble friend has elaborated are precisely those; in other words, the person who applies for the job, whether or not he is disabled, should have the necessary qualifications to do it. Maybe the wording of Amendment No. 29 is unfortunate in that it seems to place a responsibility on the applicant, but surely all applicants for a job have to set out their qualifications to do the job. It is on that basis that they would be appointed. Their disability would be taken into account only if it meant that they could not perform the functions of the particular job.

Lord Renton

If the noble Baroness will kindly look at paragraphs (a) and (b) of the subsection she will find that they do exactly what she hopes and believes they should do.

Lord Inglewood

I am grateful to the noble Baroness, Lady Turner, for introducing this large number of amendments in a generalised manner. They all relate to the same point. I hope that the Committee will agree that the appropriate way to respond is to try to deal with them on that basis. I am also grateful to my noble friend Lord Renton who has raised a number of points which I would otherwise have raised. I agree that he would be right to be astonished if the Government accepted these amendments. The Government are not inclined to do so.

The purpose of this group of amendments appears to be to restrict the conditions set out in Clause 5(4) on which less favourable treatment may be justified. It must be remembered that we start from the proposition that the Bill does not make it unlawful to treat a disabled person less favourably than someone else for reasons wholly unconnected with the disability. We all recognise that no matter who the individual—disabled or non-disabled—may be, there will be circumstances where it is entirely appropriate to treat him or her less favourably than others, for example where that individual cannot do a particular job. However, in the case of a disabled person one cannot get away from the fact that it may be the disability which, even after reasonable adjustment, makes him unable to do the job. It would be unreasonable to say that, no matter what the effects of a person's disability, the employer will not lawfully be allowed to take them into account and that if he does so, he will be treated as having discriminated against the disabled person.

Discrimination under the Bill arises only where a disabled person receives less favourable treatment for a reason related to the disability. Clause 5 is concerned with defining the limited circumstances in which employers can be justified in such treatment. I believe that it is important that the employer should be able to make the judgment as to whether an applicant is less or more "suitable" without unnecessary restrictions on the factors that he can take into account. That would be very likely to include whether the individual was unable to satisfy an important requirement or qualification or perform the essential duties of the job or was less able to do so than another applicant.

Simply relying on the concept of "important qualification or requirement" or "the ability to perform essential duties" removes much reasonable discretion from the employer. For example, it is not entirely clear what the noble Baroness has in mind in suggesting the words "important requirement". I presume that they are intended to cover factors such as specific experience. However, that is a vague term which is not defined. It risks causing uncertainty both for employers and disabled people as to what can or cannot be taken into account. There is also a risk that employers would be unable to select the best person for the job if, for example, the disabled person had the "important qualifications and requirements" in that narrow sense but was still less suitable, or even entirely unsuitable, for some other reasons—for example, by not having some less important qualification relating to a duty which nevertheless could not be readily transferred to another person.

The proposals in the Bill recognise that, where matters for which an employer is responsible place a disabled person at a substantial disadvantage because of the effects of the disability and it is reasonable for the employer to make an adjustment, he should do so. That is made clear on the face of the Bill in Clause 6(3) and might include, for example, allocating some of the disabled person's duties to another person if that is reasonable for the employer in all the circumstances.

I agree with the noble Baroness that the issue of the performance of unimportant or non-essential duties needs to be addressed. However, the provision to do so already exists in the Bill. An employer has a duty to make reasonable adjustment. If an employee cannot perform certain duties and they are unimportant or non-essential duties, it may well be reasonable not to require him (or her) to do them and they can be reassigned, or in some cases dropped altogether, in line with a reasonable adjustment provision.

However, there may be cases in which it would not be reasonable in all the circumstances for an employer to reallocate even relatively minor non-essential duties. Generally, somebody has to carry out those duties. They do not become irrelevant because an employer is going to employ a disabled person. In those situations it is important that we allow employers the scope to make the decisions which best meet their business needs. It is not an unfettered scope. An employer will need to bear in mind that he may be called upon to satisfy an industrial tribunal that his decision was reasonable in all the circumstances.

In today's competitive environment, we should not in any way restrict employers in recruiting the most suitable person for the job, after taking account of any reasonable adjustment. It is important for the employer and the individual that there is no compulsion on employers to employ unsuitable or less suitable disabled people. To suggest otherwise would be unreasonable. I am sure that disabled people genuinely do not want jobs that they cannot do. This Chamber does not want to force employers to employ people who cannot do their jobs or who cannot do their jobs as well as others, even when all reasonable steps have been taken to minimise the effect of any disability. Disabled people want a level playing field. That is what the Bill seeks to achieve.

We should not restrict employers in making decisions which only they can make in any particular situation. Employers must be free to choose the most suitable person for the job, while making any adjustments that are reasonable. There is sufficient scope in the Bill to allow disabled people to challenge employers if they believe that they have been unjustifiably discriminated against. I ask the Committee to reject the amendments on those simple grounds.

Baroness Turner of Camden

I spoke to this group of amendments in a generalised way because I felt that they covered much the same ground. As I indicated to the noble Lord, Lord Renton, they were in fact alternatives. With regard to the points that he made, at present the burden of proof is on the person who is seeking a job. If you are looking for a job, you go along and present yourself with your qualifications and experience. The amendment would mean that the disabled person would simply present himself or herself and say that they could not do the job and would not be bothered whether or not there would be some quite subjective view held by the employer as to suitability simply because of their disability.

We agree absolutely with the Minister that we want people to be appointed for work that they can do. There is no point at all in trying to force disabled people into jobs that they are simply unable to do. I say again to the noble Lord, Lord Renton, who thought that my amendment was not to the advantage of disabled people, that the reason why I tabled these amendments was because I was advised to do so by organisations which have a great deal of experience of looking after disabled people, like RADAR and the RNIB. I am sure that they know what they are talking about when they say that disabled people are concerned about provisions in the Bill which would give the impression that maybe the employer could make subjective and uninformed decisions about their ability to do the job for which they applied.

It is not my intention at this late hour to press the issue to a vote, but this is an important question. We may very well return to it at Report stage when we see what the Minister has to say. I hate the term—

10.15 p.m.

Lord Renton

I am grateful to the noble Baroness for giving way. We must remove the misunderstanding which is in her mind as regards the burden of proof. In the opening words of Clause 5 which we are now discussing, the noble Baroness will see, For the purposes of section 4, an employer is justified in treating a disabled person less favourably than he treats, or would treat, others". That makes it quite clear. Subsection (2) makes it even clearer by using the words, Where a duty is imposed on an employer by or under section 6". There is no doubt whatever that the burden of proof in these circumstances would have to be on the employer. The noble Baroness's amendment shifts that burden to the disabled person.

Baroness Turner of Camden

My understanding is that if an individual felt himself or herself to be disadvantaged and took the case to a tribunal, then the onus of proof would be on the person who brought the case. That would be the disabled person, would it not?

Baroness Gardner of Parkes

This is a very important point which must be clearly established. It makes a very big difference at an industrial tribunal as to which side bears the onus of proof and even in terms of how the case is presented; who has to open and who has to respond. It is very important that we know the answer.

Baroness Hollis of Heigham

This is a situation where it would be helpful to have the Minister's guidance on this matter.

Lord Renton

May I help? Most certainly, when a person takes a case to an industrial tribunal the burden at first is on the plaintiff—that is to say, the person who has made the complaint. But as soon as that person refers to Clause 5 the burden of proof shifts to the employer.

Lord Inglewood

I am very grateful for counsel's opinion!

Baroness Hollis of Heigham

But is that within the bounds of reasonableness?

Baroness Turner of Camden

I shall read Hansard with even greater interest than usual tomorrow morning. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 to 33 not moved.]

Baroness Masham of Ilton moved Amendment No. 34:

Page 3, line 39, leave out ("would") and insert ("(in the case of an applicant for employment) would at the time he took up employment").

The noble Baroness said: This is a probing amendment designed to clarify the drafting. Clause 5 deals with circumstances in which less favourable treatment of disabled people by an employer is justified. For such treatment to be justified, an employer has to be satisfied of certain conditions, one of which is that, the nature of the disabled person's disability significantly impedes, or would significantly impede, the performance of any of his duties".

There are two possible interpretations of that. The first is that an employer can take a reasonable view of the capacities of an existing employee, or of an applicant for employment, in order to make a decision relating to that person at that time. That is entirely acceptable and sensible.

The other interpretation is that an employer would be justified in taking a view about the future capacities of an employee, or applicant, in order to treat him less favourably, on the grounds that the person's disability might at some point render him incapable of undertaking the job or, indeed, a job to which he might be promoted. That is unacceptable. Indeed, it seems to make a nonsense of the Bill. The whole point is to keep disabled people in employment, doing jobs that they can do at the time. It would be wrong, especially in the case of those with progressive conditions, to allow discrimination on the basis of necessarily uncertain future prognostications. After all, at some point in the future we are all likely to be incapable of doing some jobs.

The amendment changes the drafting regarding the condition in question to read as follows: the nature of the disabled person's disability significantly impedes, or in the case of an applicant for employment would significantly impede the performance of any of his duties". I hope that that is what is meant and that that version will make it clear. The amendment is supported by the Multiple Sclerosis Society and other organisations dealing with various disabilities. I beg to move.

Lord Hamilton of Dalzell

I have been listening to the debate for the whole of the afternoon, and it seems to me that there is one aspect of this matter which is missing. On the previous amendment we debated on whom the onus of proof should lie; whether it should be on the disabled person or the employer. When faced by a disabled person and deciding whether he can do the job, the employer is in a quandary. Although he might go to the council and obtain legal advice, what I believe the noble Baroness, Lady Turner, said was that he would start with an assessment.

I am chairman of the Queen Elizabeth Foundation which is a training college for disabled people. We always start with assessment. Having assessed what we believe the disabled person is capable of, we train that person in some expertise and he ends up with qualifications. At the end of the day those disabled people obtain jobs. Even in the recession, 50 per cent. of our people are obtaining jobs.

I note that the object of the Bill is to drum reluctant employers into employing disabled people, but there are many employers who would be willing to employ disabled people if it were not for the uncertainties that exist. The uncertainties which surround the employment of disabled people are caused partly by the stringent regulations which apply to the able-bodied.

It is possible to employ someone, as I did, who happens to go sick from a variety of diseases. For four years, that person went sick for six months. He would return for the statutory three months and then go sick for a further six months. One could not get the doctors to say that he was unfit for work, and one could not get rid of him because what he did was always within the law. The only way of getting rid of that passenger within a small business, which required everyone to be active, was to reorganise the business in order to abolish his job and make him redundant. Such things cause anxieties in the minds of employers.

I have always taken the view that the Bill will do little good because employers will negotiate their way around the regulations if they do not wish to employ disabled people. There is a positive element, which one should examine, which would have been much more productive. For years the Government have run an extremely good scheme called the sheltered employment scheme. It means that when people take on disabled employees they are not employed by the company but by a middle agent. Therefore, if the employees fail to live up to their fitness or whatever they can be passed back to the original employer with no problem.

That scheme has had a marvellous effect because it has enabled employers to take on disabled people who then often come off the register. I wish that the Government would put more money into this scheme because it gets people out of the stocks and into employment and they become taxpayers instead of a burden on the Exchequer. It is an extremely rewarding business. The argument goes around and around but one must understand the problems on the other side of the equation.

Lord Ashley of Stoke

I would not like the noble Baroness, Lady Gardner of Parkes, to believe that I am anti-employer. Some of my best friends are—dot, dot, dot! The essence of the attitude of some of us to the Bill is that most employers are good but some discriminate partially out of ignorance and others partially out of malevolence. It is a small minority but legislation is required to deal with them.

The noble Lord, Lord Hamilton, misunderstands the purpose of the Bill and certainly misunderstands disabled people generally. He gave an example of an employee going sick as being typical. According to excellent research relating to absenteeism, disabled people have a better record than able-bodied people. His example was by no means typical and most employers recognise that.

We are concerned with the employers who will not play the game and who require legislation to keep them in order. That is the point of the Bill.

Lord Rix

Am I not right in stressing the fact that the Bill involves not only employment but the right of access for disabled people to goods, facilities and services, that it is unlawful to discriminate against disabled people and so forth? This part of the Bill is about employment, but the Bill itself is on a larger scale and that should be remembered when commenting on the various amendments.

Lord Hamilton of Dalzell

Perhaps I may respond to the noble Lord, Lord Ashley. I agree that disabled people have a better record as regards absenteeism, but I do not agree that employers do not have fears when it comes to employing someone with a disability.

Baroness Farrington of Ribbleton

Perhaps I may raise an issue which troubled me when we discussed the legislation preventing, inhibiting and dealing with discrimination on the grounds of sex or race, and it troubles me now. There is the danger that a patronising view will creep across all debates on the issue; that somehow it is about being good to the people who are in danger of being discriminated against.

Frankly, I believe that we should look at the issue in a totally different way. If the person who is best able to do the job is disabled, of a minority ethnic group or a woman, we as a country cannot afford the luxury of losing that skill and having someone less competent doing the job. The issue needs to be set out in that way. I continue to stress my opinion that in the context of that philosophy we are in danger of treating those with disabilities less fairly than those who are discriminated against because they happen to be female or black. This legislation should not be treated as doing good, although moral arguments are important. It should be dealt with on the basis that we cannot afford to waste the talents of so many people.

10.30 p.m.

Lord Inglewood

As the noble Lord, Lord Rix, said, we have had many interesting discussions on the Bill but they may not be relevant to this particular part of the Bill. I hope that the Committee will forgive me if I concentrate my comments on the amendment in question.

As the noble Baroness, Lady Masham, pointed out, the effect of this amendment would be that an employer would not be able to take into account the significant effect of the disability on a disabled person's performance of his duties if that effect would occur some time in the future.

We all recognise that if we are serious about tackling discrimination against disabled people we must not stop merely at prohibiting less favourable treatment. We must also require employers to take reasonable steps to help disabled people overcome any limitations imposed by their physical or mental impairments. Having done that, however, we must still recognise that some disabled people will, nonetheless, be unable or less able to do a particular job. In those cases, regrettably, we must allow that less favourable treatment is entirely justifiable.

There will be circumstances in which an employer may quite reasonably treat a disabled person less favourably because of an expected deterioration in ability to carry out his duties. In the case of an applicant, I do not consider it right that an employer should always have to take on the disabled person—and have to go through all the administrative arrangements in taking on that disabled person—only to have a perfectly valid reason a short while later for discharging that disabled person or transferring him to another job.

Where the disabled person is an applicant for employment, it is certainly our intention that a significant expected deterioration in performance should be addressed as an issue of "suitability" under Clause 5(4). But that will not necessarily be the case for an existing employee. Let us not forget that the amendment is not restricted to applicants for jobs. It covers a wider ground. The grounds of justification in paragraph (c) could apply; for example, in the case of a decision on what kinds of work to give to a person whose disability is expected to worsen.

I have listened carefully to the points that the noble Baroness has made. I must make it clear that I am not persuaded by this amendment. I recognise the concerns about progressive conditions or disabilities which are likely to worsen, but the answer cannot be to ignore the reality of the situation. How, then, will an employer know how to treat someone lawfully who may not be able to do the job for very long; or someone who may need different adjustments over time; or someone whose productivity declines although the employer is prepared to keep him on? These are the sort of issues on which we expect to be able to give guidance in a code of practice. They are not easy issues and the answers will differ from case to case, so we will not be able to make the position clear for everyone in every circumstance. But we will be consulting employers' organisations and disability organisations and we will hope to go some way to meeting the concerns that underlie the amendment.

I hope that that will provide some encouragement to the noble Baroness and that bearing that in mind, she may feel able to withdraw the amendment.

Baroness Masham of Ilton

I thank the Minister for his reply which will be looked at carefully. We shall see what happens at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 to 37 not moved.]

Clause 5 agreed to.

Clause 6 [Duty of employer to make adjustments]:

Baroness Masham of Ilton moved Amendment No. 38:

Page 4, line 31, at end insert: ("( ) providing dedicated parking facilities; ( ) providing assistance for him to move from his parked vehicle to his place of work.")

The noble Baroness said: This amendment is straightforward and uncomplicated. The amendment adds two very important aspects to enable severely disabled people to be able to work. Having a dedicated parking place, should it be necessary, and assistance for the disabled person to get from his vehicle to his place of work may be the only assistance that he needs.

Being the founder and president of the Spinal Injuries Association, I know that our members are people who have broken their necks and backs through accident or who have suffered injury to the spinal cord through illness and are paralysed and use wheelchairs. Many of our members are young and may cover a very wide span of professions; for example, teachers, university lecturers, doctors, computer operators, accountants, administrators and so on. Once in the building, such people could carry on with their work. It would be the best thing for them and by far the most economical for the country. We should remember that they are taxpayers.

Many employers are fearful of severe disability, but once they realise what a person can achieve, their attitudes change. To include the amendment in the list of examples is very important, otherwise the need will not be highlighted, which is vital to some disabled employees if they are to be able to take up employment. If a disabled person, using a wheelchair, cannot get into a building, that is an excuse for him to be rejected for employment. I beg to move.

Baroness Darcy (de Knayth)

As we are talking about access and facilities, perhaps I may just say how much I appreciate the extra space in the Chamber today. Surely it is an excellent example of reasonable accommodation, at reasonable cost, when we are dealing with a Bill which is entirely to do with disability. Indeed—

Lord Carter

I apologise for interrupting, but would the noble Baroness also expect that such "reasonable" space will remain available for other Bills, or only those concerning disability?

Baroness Darcy (de Knayth)

That would depend on the proportion of disabled Peers to non-disabled Peers. I also think that if, perhaps, there were a bunch of amendments regarding the disabled, one would have to do what is reasonable. I shall not commit myself further than that, as I did not have notice of the question. It certainly takes me back 25 years to the "mobile bench of four" when all four of us sat together for the proceedings on the Chronically Sick and Disabled Persons Act.

I support the amendment. As I believe my noble friend said, it is not mandatory; it would only put the options of such provisions in the minds of employers as regards doing something which may be needed. I believe that it is important to include such examples because, otherwise, having seen the other list of things, employers may say, "These people are asking for yet more provision", whereas, as my noble friend said, it may be the only help that such people need.

Lord Addington

I should like to support the amendment for the simple reason that it is probably the best and clearest amendment that has been tabled today. We know exactly why it has been put forward and exactly what it would achieve. A person who is confined to a wheelchair is, effectively, only disabled while he has to travel somewhere that is not designed for wheelchair use. The provision would remove the problem of disability. If only all the problems which arise under the Bill could be solved so easily!

Lord Ashley of Stoke

I support the amendment very strongly. Not only is it the clearest that we have seen, but we have also had the best speeches so far in tonight's debates. If the amendment is accepted, it would mean that severely disabled people would be able to use their talents and fulfil their potentialities. That is the great raison d'être of the amendment. I very warmly support it.

Baroness O'Cathain

I should point out that not every place of employment actually has parking facilities. I am just wondering whether the noble Baroness would like to take the matter away and have another look at it. For example, there could be opportunities for disabled people to work with computers in, say, a fashion boutique in the middle of Regent Street, or somewhere, where there would be no parking facilities.

Perhaps there is some way of dealing with the situation whereby there would be the ability to transfer someone from a car which has transported him to a place, without necessarily providing parking facilities. To narrow the provision down in the way suggested might actually cause something of a problem. I am just trying to help.

Lord Swinfen

My noble friend Lady O'Cathain is quite right but at the same time this is purely a list of examples and therefore it would not necessarily be able to be applied to every premises. However, I support the general idea. While I am on my feet and as the mobile Bench has been mentioned, I should just point out, if I may, that Members of the mobile Bench do not just speak on Bills dealing specifically with disability; they speak on many other subjects. There are many other Bills which look as though they have nothing to do with disability but which have a great effect on disabled people. If some alteration to the Chamber could be made for better accommodation of our mobile Members, that would be a good idea.

Lord Inglewood

Let me say right at the beginning that I have considerable sympathy with the intention behind this amendment, as indeed I think everyone who has spoken on this amendment in the Chamber this evening has. However, the amendment, as drafted, can be interpreted as being wide-ranging. For example, where an employer has existing car parking facilities for his employees it might well be reasonable, depending on the circumstances, that he should, under the duty in Clause 6, have to allocate a dedicated car parking place to a disabled employee who finds it very difficult or impossible to use public transport. However, I do not think—this is the point that my noble friend Lady O'Cathain raised—that an employer who does not have any car parking places should be required to consider having to provide a dedicated car parking place for a disabled employee.

Although I can see that there would be circumstances when it might be a reasonable adjustment to help a disabled person from a parked vehicle, I am much less clear about the scope of the second example. What sort of steps is it intended the employer may have to take in providing assistance for a disabled employee to move from his parked vehicle to his place of work? Does this mean that an employer has to make arrangements to meet a disabled employee who parks his car two miles away and then provide assistance for him? More fundamentally, I suspect that a person who needs this kind of assistance may have very serious mobility problems which could also require other forms of assistance, making this a minor aspect and therefore not a good example to single out.

I am not persuaded that this amendment should be accepted. Subsection (3) after all only sets out examples of illustrative steps. We must resist the temptation to add an ever-increasing list of examples. That would distort the Bill and could be seriously counter-productive if it seemed to imply the list was intended to be largely exhaustive. We believe these matters are better addressed in the code of practice and I can assure the noble Baronesses that we have taken note of their concerns.

Baroness Hollis of Heigham

Before the noble Baroness tells the Committee what she wishes to do with this amendment, I wish to make two points to the Minister. First, I think he has failed to give due weight to the argument that was made by both noble Baronesses that what they were doing by adding these two additional examples to a list was introducing into, if you like, the mental framework of the employer yet another way in which, at reasonable cost and at reasonable expense, he could overcome what would otherwise be insuperable barriers to employing disabled people. In so far as it adds a different dimension to what may or may not be a hurdle to their employment, that surely should be welcomed.

Secondly, when the Minister gave what I would call his destructive analysis of why this amendment might not be right and said that the parking might be two miles away and how unreasonable that could be, I have to say that every example here is subject to the same sort of criticism, if one wished to make it. That applies to the adaptation of premises, to modifying equipment, how expensive that equipment will be, or how many rooms, floors or buildings away it will be situated. We do not mention that; we do not need to. We are talking about a sensible response to the framework of the Bill. I would have thought that the substantive point being made—I think the Minister ought to take this on board—is that I suspect if the Government had thought of these two examples themselves they would have included them in the Bill in the first place. But because they have not been suggested by the Government Benches but rather by the Cross-Benches, and the Government did not think of them, they are resisting them at this point. I think at this stage the Government could say this is a helpful further illustration of a way in which an employer can overcome what would otherwise be an insuperable barrier for disabled people.

Baroness O'Cathain

I hate to prolong this debate, but I hope I can make an additional point. Frankly, looking at this Bill, the more examples one includes, the more people will think, "Oh my goodness!", and ask themselves whether it is worth being an employer. There is an element of that.

Baroness Masham of Ilton

I thank all Members of the Committee who have supported the amendment. I point out to the Minister that it sets out a list of suggestions, as the noble Baroness, Lady Hollis, said, putting the idea into the mind of the employer. These are reasons for turning someone away without even being given the opportunity to be interviewed. It is only a suggestion that an employer "may", not "shall", do this. I feel very strongly about this issue because I know so many excellent and skilled individuals who have broken their necks. All they need is a helping hand to get them in to their place of employment.

I have no intention of dividing the Committee tonight, but I shall certainly bring the matter back at the next stage. I hope that the Minister will think about the matter. Perhaps he will speak to one or two people who are in that position. I can bring them along and introduce them to him.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Baroness Turner of Camden moved Amendment No. 39:

Page 4, line 31, at end insert: ("( ) Where an employer has made an adjustment listed in subsection (3) to enable a disabled person to take up or retain employment with him that adjustment shall be one of the terms and conditions of employment to which the employee is entitled by virtue of his contract of employment.").

The noble Baroness said: The purpose of the amendment is to try to ensure that reasonable adjustments made to enable disabled persons to undertake employment are protected by the acquired rights directive. This is a probing amendment put down in order to obtain from the Government a commitment that disabled workers, especially in the public sector, will not lose adjustments that enable them to retain employment should their employer be taken over or should the service provided be subjected to compulsory competitive tendering.

As the Committee will know, the EU acquired rights directive is given effect in UK law by the Transfer of Undertakings (Protection of Employment) Regulations 1981. The intention of the directive and the regulations is to ensure that any workers whose employer changes as the result of a transfer of the ownership of the business retain their acquired employment rights: their contracts of employment remain and they retain the right to claim unfair dismissal or redundancy compensation just as if they had been employed for the qualifying periods fixed by law. In addition, any dismissal that is directly related to the transfer is automatically regarded as unfair. However, importantly, the new employer is in exactly the same position as the old employer with regard to any changes in terms and conditions. There is therefore no guarantee that terms and conditions will remain unchanged. Similarly, an employer may implement dismissals for economic, technical or organisational reasons.

It thus seems to us that vulnerable people like disabled employees need extra security written into legislation. We believe that there is a degree of uncertainty as to whether, for example, adjustments made to enable a disabled person to retain employment would need to be continued by the new employer.

Moreover, should the new employer have fewer than 20 employees he or she will not be required to make any adjustment at all, as we have already heard. Therefore, if the new employer is significantly smaller than the original one the disabled person could be at a significant disadvantage.

The matter could be put beyond doubt by ensuring that this amendment or something like it is included in the Bill. I await the Government's response with interest. I beg to move.

Lord Swinfen

I intervene on this amendment to ask a question of my noble friend the Minister. If an employer removes the reasonable adjustments that have been put in place to enable a disabled employee to undertake his work, would that be construed as constructive dismissal?

Lord Inglewood

I hope my noble friend will forgive me. I did not hear the crucial part of my noble friend's question as to what it was that might be construed as constructive dismissal.

Lord Swinfen

My noble friend was consulting at the time. I intervene only to ask whether, where reasonable adjustments have been put in place by an employer to enable a disabled employee to undertake his work properly and the employer then removed those adjustments for one reason or another, thus making it difficult or impossible for the disabled employee to undertake his work satisfactorily, that could be construed as constructive dismissal.

Lord Inglewood

It is important that we are clear about the nature of the rights of a disabled employee. Those rights owe their origin to statute and depend upon a relationship between the employee and the employer. The fact that they are not contractual with any particular employer means that if the identity of that employer changed the statutory rights as defined in the Bill do not necessarily alter.

The effect of this amendment would be that any adjustment made by an employer for a disabled employee so that he could take up or retain his employment, and which was listed in Clause 6(3), would become a term of his employment contract. As I understand from what the noble Baroness said, the intention underlying the amendment appears to be to give a disabled employee a contractual right to the continuation of a measure once taken.

An employer is placed by Clause 6(1) under a duty to make an adjustment if a disabled person would otherwise be placed at a substantial disadvantage by certain arrangements made by the employer, or by a physical feature of premises, and that adjustment would be reasonable in all the circumstances of the case. If in such circumstances the employer does not make an adjustment, he will be regarded as having treated the disabled person less favourably for the purposes of Part II, subject to any justification, and the disabled person will have a right to make a complaint to an industrial tribunal. That right is not diminished once the employer has made the reasonable adjustment. If the employer took away the adjustment leaving the disabled person at a substantial disadvantage once again, that person would again have the right to complain to a tribunal.

I believe that that covers much of the point raised by my noble friend Lord Swinfen. I draw his attention to Clause 3(2((d) which states: It is unlawful for an employer to discriminate against a disabled person by dismissing him, or subjecting him to any other detriment". The amendment would give a further right to a disabled person under the terms of his contract to any such adjustment which has actually been carried out.

There seems to be no reason for this. There is no such dual right in other anti-discrimination legislation, and it could work rather oddly. Imagine a case where any one of a number of reasonable adjustments would remove the relevant disadvantage as well. The disabled person would have no right to specify which one of those adjustments be made. But under the amendment, once the employer had made one of those adjustments the disabled person would have a contractual right to the continuation of that specific adjustment (if it were of a type listed in subsection (3)), even if the employer later wished to substitute it for a different but at least equally effective adjustment. The amendment would also appear to preserve an employee's right to an adjustment even if he ceases to need it, for example because he recovers from the disability.

I turn to the point raised by the noble Baroness, Lady Turner. If there is a transfer of business, the continuation of adjustment must depend on whether that adjustment is reasonable for the new employer; and if a business is transferred as a whole it seems unlikely that the issues of reasonableness could alter.

The noble Baroness also raised the issue of the number of employees falling to fewer than 20. The Government's intention is that small employers should not be covered by the Bill. They would not wish them to be brought in by this or any other route. However, we shall encourage them to follow the code of practice to which we have already referred.

It is not entirely clear why the noble Baroness has chosen to give this special treatment only to steps comprised in the examples set out in subsection (3). If those examples of steps were deemed to be terms of the employment contract once they were made, employers and disabled people may regard this as a signal that those examples have a different status from or a higher status than other adjustments that employers may make. We believe it would prove confusing all round and I cannot support the amendment.

Earl Russell

Before the noble Baroness decides what to do with the amendment, perhaps I may probe that reply a little further. It sounded extremely encouraging a lot of the way through, but one has to examine what is not there. There were two crucial sentences I wanted to ask the Minister about. One concerns where the employer changes. I take the point about the rights deriving from the statute, but the Minister's phrase was that the rights do not necessarily alter. That is a long way short of a commitment. Could the Minister change the word order and say that the rights necessarily do not alter? That would be a different and much more encouraging statement.

The other point deals with the employer who has, if I may so put it, gone on a diet. That is, he has changed from being a large employer to being a small employer within the meaning of the Bill. The Minister said that the Government would encourage that employer to go on maintaining the rights or adjustments that the disabled person enjoyed. Can the Minister say how the Government would encourage them?

Lord Inglewood

If we take the hypothetical case where the firm or employer in question goes on a diet, the employee's rights do not change because they are defined by statute as being attached to employers above a certain threshold. If the employer reduces his workforce below that threshold, the effects of the rights that the employee has may vary. As I explained, if the size of the employer drops from above 20 to below 20, then the provisions of Part II will not bite, to the extent that there will be nothing which an employer can bring to an industrial tribunal. If then hypothetically the size of the employer increased, he would be brought back within the scope of the terms of Part II. The employee's right is always subject to the proviso that the employer must be over the size threshold as specified in the Act. I hope that that answers both of the noble Earl's points.

Baroness Turner of Camden

Before the Minister sits down, perhaps I may raise a point with him arising from what he said. He stated that an employee's rights do not change. I am talking about an employer over the size of 20. Is the Minister saying that since the employee's rights do not change, the right that I seek to enshrine in legislation in the amendment is there anyway? For example, if an employer is taken over by another employer and certain adjustments are made for the employee, those adjustments are taken away by the new employer. The employee had a right to those adjustments but if they are taken away and he cannot continue to do the job as a result of the transfer, he can go to a tribunal with the probable prospect of winning his case. Is that what the Minister is saying?

Lord Inglewood

As I understand it, the answer to the noble Baroness's question is, yes. The only possible proviso that I might enter is that, depending on the nature of the employer, the form of adjustment that was reasonable in those circumstances might change. That is a point that I made in my earlier remarks. As concerns the basic proposition, the answer is clearly, yes.

Baroness Turner of Camden

I am grateful to have that remark on record. In the circumstances, I shall look carefully at Hansard tomorrow because it may well be that what the noble Lord said to us tonight to some extent satisfies the arguments that have been made; that is, except when we consider small employers, which is another question altogether to which we must address ourselves later in Committee. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11 p.m.

Baroness O'Cathain moved Amendment No. 40:

Page 4, line 31, at end insert: ("( ) The Secretary of State shall make regulations setting out funding arrangements which will assist employers in whole or in part in taking any steps to comply with subsection (1)").

The noble Baroness said: This amendment deals with the issue of costs. I said at Second Reading that I would be pursuing this matter in Committee. In order to comply with the Bill there is likely to be a substantial cost on employers, and I should like to reiterate the point that we cannot really afford to lose our competitiveness. However, that point was dealt with at Second Reading.

Up to now, in the Access to Work programme the Department of Employment has allocated funds so that those who were disabled have in effect an amount of money with which to go to an employer and say, "If you put a ramp here, I have this grant from the Department of Employment." It is estimated that some 10,000 people have been helped in this way in the year 1994–95, at a cost of £14.6 million—an average of about £1500 per person.

The Government have obviously reconsidered this proposal to charge employers 50 per cent. of the cost of an individual's Access to Work grant. In doing this, they have created something encouragingly close to credit for individual employability, and currently this can definitely help a disabled person to get work. The Government are now reviewing Access to Work, and the purpose of this amendment is to seek an undertaking that in some form support for individual employability, to use a horrible word, will remain. It may be even more important when businesses inevitably have other costs to meet in respect of disability as a result of this Bill.

The Government's £14.6 million expenditure on Access to Work represents a small but symbolic commitment that the cost of this important piece of legislation will be absorbed in a balanced way, because there is a feeling that this amount is going to be reduced. I should like to have some reassurance from the Minister on this point. I beg to move.

Lord Carter

I have an amendment down, Amendment No. 44, which is grouped with this amendment and says much the same thing. I do not wish to repeat the arguments put by the noble Baroness, but I should like to raise a point on Access to Work. A member of my family receives the personal reader's allowance and for a long time now I have had the job of filling in the necessary forms.

The new scheme is immensely more bureaucratic than the one it replaces. Under the old scheme which was administered by the RNIB there was one form which had to be filled in every 13 weeks. You had to state the bank account once; of course a blind person needed a sighted person to fill in the form for him; and that was it. But now there is a form to be filled in every week, so instead of one form there are now 13. There may be forms for one month perhaps, but at the moment it is immensely bureaucratic and a cheque has to be produced with each form, which means 13 cheques instead of one. Of course I can understand that there may be people who would like this allowance more frequently than once a quarter, but I would just make the point that this is a good scheme. It is a good start, but I think that the new organisation, having taken over from the RNIB, seems to be much more bureaucratic, with many more forms to be filled in. This must be taking up a lot of time of the administrators.

Baroness Seear

I should like to support this amendment, to which my name is added. As I have said before and shall say again, I believe that if we want a decent society we must be prepared to pay for it and not to encourage other people to pay for it. If we want these regulations brought in and help given to disabled people to enable them to get employment, I do not really see that the costs should be laid on the employer. I think the costs should be borne by all of us, the taxpayers, which would relieve the burden on the employers so as to encourage them and make it easy for them to give employment to disabled people. I think the burden should be less heavy on the employer and `more heavy on the taxpayer, unpopular though that remark always is.

Lord Ashley of Stoke

I should like to support the views expressed by the noble Baroness who moved this amendment, and also to support my noble friend over his amendment. I fully agree that it is nonsense to force employers to pay 50 per cent. of the grant. Without any undue boasting on behalf of the all-party group, we saw David Hunt, then the Minister, and pressed him very strongly on this point. We said that he would damage the splendid Access to Work system if he persisted in imposing the 50 per cent. charge on employers. I believe the all-party group had some success in persuading David Hunt. In fact, he later acknowledged that he had been influenced by the representations of the group. We were delighted when he removed that charge from employers, as it was a damaging idea on the part of the Government at that time. David Hunt deserves credit for withdrawing the proposal.

I welcome the amendment. We have to face the fact that the employment aspect of the Bill simply could not be operated without the Access to Work programme. The employers know that. The work of the CBI, and of Susan Scott-Parker of the Employers Forum on Disability, has been very important in encouraging a positive public attitude.

'The Access to Work programme is one of the most important tools in winning co-operation between the state and employers and disabled people. The CBI and the employers' forum want this Bill to be a success. They also, quite reasonably, want assurances that there will be no changes in the funding for Access to Work this year, nor in subsequent years.

Equally strong in their support for the Access to Work scheme are the disability organisations. Perhaps I may very briefly quote the British Deaf Association, which stated: Access to Work has been an extremely important scheme for deaf people, opening up employment opportunities by enabling them for the first time to get Government resourced communication support for interviews and in the workplace". Previously, employers would not pay for interpreters at interviews. They saw the burden and the cost, and could not recognise the value. Without interpreters, deaf people simply could not get jobs. All the legislation in the world could not alone resolve the problem. The Access to Work provision needs to be continued and expanded. I am delighted to support the amendment.

Lord Swinfen

I, too, support the amendment moved by my noble friend Lady O'Cathain. I believe I heard her aright in that she said that the cost of suitable adaptions might be in the region of £1,500 for each disabled person. My understanding is that the average cost will probably not be more than £200.

The important point is that we should enable disabled people to be employed and at the same time not put an additional burden on employers, and not make the goods that we sell overseas more expensive and less competitive in the world market.

Baroness O'Cathain

For clarification, the figure of 1,500 was the average for last year (1994–95). The noble Lord says that it could be £200. It was £1,500. The total cost of Access to Work was £14.6 million, and about 10,000 people were helped.

Lord Monson

This is surely not only a worthwhile amendment, but a vital one. Clause 6(3) imposes very considerable financial burdens upon employers. Those financial burdens are what distinguish this anti-discrimination legislation from all previous examples of anti-discrimination legislation.

The noble Baroness made reference to modest grants for capital expenditure. But what about current expenditure? For example, subsections (3) (f) and (3) (d) require an employer to give disabled employees time off for rehabilitation, assessment and treatment, and also for training—presumably, on full pay. The Minister will correct me if I am wrong in that assumption. Why should the employer have to pay? Surely, as the noble Baroness, Lady Seear, said, the taxpayer should foot the bill for this particular form of current expenditure.

Earl Russell

I, too, should like to add my support to this amendment. This is part of a long-running argument that has been going on since the passing of the Statutory Sick Pay Act 1991 as to who should pay for social costs on business. I think that this is one issue that the CBI has got right. The normal cost of employing labour is properly that of the employer. It is the cost of doing the job. But where one sets business social rather than economic objectives we should put our money where our mouth is and help business to do what we ask it to do. That seems to me to be equitable, sensible and in our economic interests.

When one considers the question of benefit, no doubt industry will benefit from employing able disabled people whom it otherwise could not have employed. But the main beneficiary of more rights for the disabled will be the taxpayer. The taxpayer will no longer have to support people who will be working and themselves paying tax. Since the taxpayer will be getting the chief benefit it makes sense for the taxpayer to pay for it.

Lord Inglewood

I am grateful to the noble Baroness, Lady O'Cathain, for introducing the amendment and for the various comments that have been made. In particular, I should reflect on the comments made by the noble Lord, Lord Carter. I am grateful to him for drawing those points to my attention. When I first saw the amendments I expected that they were intended to probe our intentions for the Access to Work programme. Clearly, that was right. I am grateful for some of the good things that have been said about that programme. It is always gratifying to have good comments made about things that one has introduced. We feel that the programme has had a good first year, and it is gratifying to hear that view confirmed by others.

There has been a debate about costs and expenditure. My understanding is that the average cost of Access to Work grant is £1,700, which can be related to the £1,500 mentioned by the noble Baroness. It is worth recalling in this context that one is talking about seriously disabled people. The figure of £200 mentioned by my noble friend Lord Swinfen arises from the fact that the compliance cost assessment for the Bill has put the average cost of adjustments at that figure. In the context of cost, it is interesting to look at the United States. In 50 per cent. of cases there the cost of making the adjustment is 50 dollars or less, and only 1 per cent. of the total expenditure incurred amounts to more than 5,000 dollars. It is important to place the matter in context.

I hear what noble Lords say about who should foot the bill. However, what one is talking about is the establishment by statute of an obligation on society at large. In general, it is not the case that where individuals or firms have statutory obligations the taxpayer pays for all of them. Put in those terms, that would be a startling development. I was interested in the proposition of the noble Earl, Lord Russell. He said that the effect of this would be that more tax would be collected and therefore the taxpayer should be supported. The effect of more tax being collected from people who would not otherwise pay it is that the tax that others have to pay will go down. I suspect that it all comes out in the wash if that is the way to look at it, which personally I rather doubt.

I understand the probing intent behind the amendments and I should like to register some concerns about them. As drafted, the Bill provides for regulations to be made to cover the matters set out in Clause 6(7) to clarify what the duty to make an adjustment means for employers and when it does or does not arise. Subsection (8) provides that regulations on what is reasonable may in particular refer to the cost of making adjustments.

However, we have no immediate intention of using these powers to make such regulations. We believe that the concept of "reasonable" will ensure that employers are not faced with an undue cost burden in making adjustments, but wish nonetheless to have regulation-making powers available in case that should prove not to be the case. The amendments, however, would add to these powers a requirement to make regulations as to circumstances in which government funding could be obtained. This compulsion is at odds with our general approach to other powers in the clause. Amendment No. 44 seems, moreover, to imply a continuing commitment by government to fund certain costs relating to the employer's duty of reasonable adjustment. Amendment No. 40 goes further still and requires government to provide funding to assist employers with their duty. I cannot accept that.

However, let me address the concerns which underlie the amendment. We made it very clear that, after the first year of operation the Access to Work programme, including financial aspects, would be reviewed. That year has now elapsed and we are, therefore, as we undertook to do last year, embarking on a review of the programme. The review will clearly need to take due account of its proposals to require employers to make reasonable adjustment to working conditions or the workplace.

In addition, any funding available to the employer from Access to Work or from any other source would be taken into account in deciding whether something was reasonable. The Committee will appreciate, however, that I cannot commit the Government to open-ended funding of all, nor necessarily any, of the reasonable adjustments that employers will be required to undertake because of the new right. I cannot therefore accept the amendment. Nor do I think it right to pre-empt the review by speculating how adjustments whose costs are not reasonable in the terms of the Bill should be addressed.

I recognise that this may not be the answer for which my noble friend hoped. But I hope that she will accept the assurances that I have given and withdraw the amendment.

11.15 p.m.

Earl Russell

Before the noble Baroness replies, perhaps I could take up one point made by the Minister. He said that it was not normal to create statutory obligations and then for the taxpayer to pay for them. With respect, I am not quite sure that he is right about that. For example, there is a statutory obligation to call the police after an accident. The police are a charge on public funds. So there the state is paying for it. There may be a statutory obligation in time of war to enlist in the Armed Forces. They are a charge on the Crown. The Minister may wish to distinguish the cases. I do not believe that he will find it quite so easy to do as he may think.

Lord Inglewood

I hear what the noble Earl says, but I still believe that the distinction that I made, when taken overall, is a valid point.

Lord Carter

Before the noble Baroness decides what to do with the amendment, perhaps I may take up a couple of points that the Minister made when referring to Access to Work, which I thought were slightly ominous. He said that the review of the scheme had been completed, which we understand. We are not asking him to let us know the outcome of that review. But could he help us by saying if the review includes the question of whether or not the scheme should continue at all? Does the review look again at the possibility of employer contribution? Also, is there some suggestion, perhaps, that the scheme might be cash limited?

Lord Inglewood

I am grateful to the noble Lord for asking me a series of quite detailed points about the review. I am not yet in a position to give him an appropriate reply.

We shall also maintain the present arrangements for Access to Work, at least until the review has been completed and the final shape of the new legislation is clear. In practice, should any changes to Access to Work he necessary because of the Bill, we shall probably aim to introduce them to coincide with the coming into force of the new rights. We shall also, of course, continue to operate the full range of other existing services for disabled people.

As regards funding, there has been concern that the Government were in some way prejudging the result of the review, in that published plans show a reduction from last year's expenditure. Last year the Government found additional money to launch the programme. It does not make sense to change the original planning assumptions behind the programme in advance of the review's conclusion. The budget for this year is, therefore, less than last year's. It does not, however, mean that we are currently expecting to introduce an employer contribution during the year. We shall keep expenditure on the programme under a very close watch and, if necessary, consider what steps need to be taken. It is too early in the financial year for me to speculate on what might be necessary. As I said, the review will look at the funding implications to ensure that the budgets reflect the future shape of the programme.

I hope that the noble Lord will find that explanation helpful.

Lord Monson

The Minister did not answer my point about current expenditure as distinct from capital expenditure. Does he agree that, if employers were obliged to give disabled employees an average of two hours a week off on full pay for rehabilitation treatment, training and so on, at average salaries, this would cost the employers between £550 and £600 a year per disabled employee in perpetuity?

It is not a great incentive to employ such people, if the money comes entirely out of their own pocket. Does he agree that that is rather unfair and that something ought to be done about it?

Lord Inglewood

The whole afternoon we have debated this Bill, which introduces the concept that under certain circumstances—those circumstances being where the employer has more than 20 employees—it is appropriate for such an employer to introduce what we have described as "reasonable adjustments" in order to help disabled people.

As regards that, we believe that it is appropriate—as I understand it, it has been accepted on all sides—that if this is something which is in the public interest, those people affected by it will have to help to contribute to the cost.

As regards many of the points raised by the noble Lord, Lord Monson, they will be offset against tax. That is a substantial reduction in the net effect on the persons concerned of these obligations to which they will be subject.

Baroness O'Cathain

My noble friend the Minister will not be surprised to hear that I am not exactly ecstatic about his response to my amendment. I thank everyone who has taken part in this debate. I wish to make a point about the issue raised by the noble Lord, Lord Monson, concerning training. I would not have gone so far as to look for Government subvention for the training of disabled people because that is a normal cost of business. Employers spend a great deal of money on training for the able bodied and the disabled. I believe that not to be a problem.

But I am worried about access to work. I was quite pleased to hear what my noble friend said as regards the reassurance for the continuation of access to work. However, he made the point that because this Bill has been introduced, the Government cannot accept open-ended funding. But my noble friend is asking business to accept that.

Going back to the point which I made at Second Reading, we have had a very tough time in business. To get into a situation now where there could be very serious cost implications arising from this Bill which would affect our competitiveness, that is not really the best way to go about it. I am very grateful to the noble Baroness, Lady Seear, who supported me on this by saying that, as we all accept, this Bill is a very good thing, and that the cost should be paid by everybody and not necessarily by employers.

I have listened to what my noble friend the Minister has said and I shall read it avidly. I cannot say that I shall not come back to this matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ashley of Stoke moved Amendment No. 41:

Page 5, line 7, at end insert: ("( ) as to circumstances in which arrangements for telecommunications provision are to be taken to have the effect mentioned in that subsection;").

The noble Lord said: In moving this amendment, I shall speak also to the new clause in Amendment No. 140. This is an attempt to improve the provision for telecommunications and to amend the Telecommunications Act 1984. Deaf people currently have important problems relative to this Bill.

I want to deal first with the situation of many of them in the future because there is a potential disaster looming for them. There are 7.5 million deaf and hard of hearing people in Britain, which is far more than most people realise. The reason that we are not all conscious of the prevalence of deafness is the achievement of hearing aids. Although they can be imperfect and sometimes infuriating, nevertheless they have enabled very many hard of hearing people—not all—to lead normal lives, and in particular, to have jobs for which their capabilities suit them.

That normal life and those jobs incredibly are now threatened and that is a vital issue for this Bill. Telephone technology is shooting ahead and it will not be long before the mobile phone is the normal phone. What is worrying is that in the future the majority of mobile phones in Britain will be using digital technology. In addition, according to Iain Valiance of BT, the digital, cordless office is coming ever closer.

The implications of digital phones are horrendous for millions of hearing aid users who now manage very well, thanks to BT's efforts to help them to do so. The devastating fact is that cordless, digital telephones cause interference to hearing aids and deaf people using those hearing aids could be prevented from hearing any speech in offices buzzing with these phones. The implications are enormous for millions of deaf people. They can in fact be driven from offices in the future.

I know that manufacturers are trying to overcome the problem by designing telephones to use the smallest radio signal to minimise interference. There is some dispute about the seriousness of the issue, but it has the potential to disrupt the benefits of hearing aids, and that is unacceptable in offices. I should welcome an assurance from the Minister, if he can give it, that in regulations employers will be prevented from using digital cordless telephones which interfere with hearing aids.

A further major problem will arise when we have offices using only digital cordless telephones. That is coming very quickly. Not only do they cause interference, they cannot be used by hearing aid users. It is staggering what so-called modem technology and progress can do. What will happen to their jobs when they cannot use office telephones? They will be cut off from the outside world. Everyone knows that a telephone is crucial for a decent job.

The Bill, which will then be an Act, will be quoted by the deaf jobseeker in the future, and in response employers will say, as regrettably William Hague the Minister has already said to me, "It would clearly be unreasonable to hold up the introduction of a new generation of technology and deny its benefits to all customers by the provisions of this Bill".

I can see the Minister's problem, but in my view it would be equally unreasonable to allow millions of hearing aid users to be pushed out of employment. So this is a no-win situation. The Minister cannot have it all his own way for technical progress, but equally we cannot have it all our own way for stopping progress for deaf people. So there must be some kind of discussion, and give and take. A solution must be found.

Tightening the Telecommunications Act 1984 with these amendments could prevent some of those problems. The amendments specify that newly manufactured apparatus be compatible with hearing aids designed for telephone use. It is not easy to resolve the problem. Unfortunately, there is this fundamental incompatibility between the present hearing aids and new telephone technology. Both sides will have to compromise. Pressures from the strong anti-discrimination requirements of the Bill, and subsequent regulations, coupled with amendments to the Telecommunications Act 1984 are the only forces that will ease the problem and prevent major discrimination against hard-of-hearing people.

I am sorry to go on at length at this time of night, but these are fundamental issues which affect millions of people. The issue upon which I have focused will probably surface in the next decade, but we must tackle it now, in the early days, if we are to be successful. More immediately, there are other important telecommunications issues which can be resolved with reasonable attitudes.

Hearing aid users can use modern technology telephones so long as they have what is called an inductive coupling done. That is a small, cheap device which sends out electromagnetic signals that can be picked up by a hearing aid with a T switch. There are several telephones on the market with inductive couplers to be bought or rented at relatively modest prices. If deafness is more severe, extra amplification is needed. Amplifying phones are also available.

Two aspects of the issue are covered in the amendments. The first is that the employer should provide for a hearing aid user a telephone with a coupler, and amplifier, if necessary. The other issue is that we should recognise that couplers cost only 50 pence each.

We should follow the example of the United States, which requires every telephone on the market to have a coupler. That is a small price to pay; 50 pence is a minimal cost. Deaf people could then use all contemporary telephones and they would not have the effort and worry of searching for a usable telephone. That situation would be achieved by requiring telephones to be hearing-aid compatible as specified in the new clause.

I apologise for having spoken at a little length at this hour. However, I wish to make two further points. Those deaf people who have been most damaged by their inability to use the telephone—and I ought to know—are those who are totally deaf or profoundly deaf. At one time, they could use telephones only with the help of another person. Now, thanks to the Royal National Institute for the Deaf and, above all, to British Telecom, every deaf person is able through Type Talk and the Relay System to talk to anyone anywhere who has a telephone.

British Telecom has been magnificently generous with its time, commitment and money in making the Relay System work. I pay warm tribute to it. However, it is a regulatory requirement which runs out in 1997. It is essential that the requirement is continued and extended to include all those operating in the telecommunications market. The new clause provides for that.

Previously, deaf people have suffered greatly from their inability to use the telephone. This Bill, with these amendments, has the power to prevent future discrimination against deaf and hard-of-hearing people. I hope that they will benefit, as will millions of other people, from the amendments and the Bill. Again, I apologise for the length of my contribution and I beg to move.

11.30 p.m.

Lord Swinfen

I support the amendment. I do not need to say anything about it because the noble Lord, Lord Ashley, has moved it so well. I should declare an interest as a user of a National Health Service hearing aid.

Lord Inglewood

We are all grateful to the noble Lord, Lord Ashley, for tabling his amendments in this regard. He is a well-known authority on these problems. We are living in a world of increasing technological change, which provides difficulties which in this context must be overcome. I make the obvious point that the technological change can apply both to the telecommunications system and to hearing aids.

The effect of Amendment No. 41 is to enable regulations to be made prescribing the circumstances in which telecommunications arrangements made by or on behalf of an employer may give rise to a duty of reasonable adjustment. In other words, the regulations may stipulate when arrangements of this kind are to be taken to put the disabled employee at a substantial disadvantage as compared with people who are not disabled.

Clause 6(1) is intentionally drafted in general terms which we believe employers will understand. "Arrangements" is widely defined and will cover a wide range of working conditions, including what I might describe as the telecommunications environment in which the person works. I understand the noble Lord's concern that the duty on employers to make a reasonable adjustment should cover adjustments such as preventing new (digital) telephones from interfering with hearing aids and making adjustments to a telephone, or providing a telephone which is compatible for use with a hearing aid. Of course, they are subject to scientific and technological change.

I can assure the noble Lord that the duty of reasonable adjustment already covers such areas. Furthermore, the regulation-making power in subsection (7) (a) already includes the enabling power that this amendment seeks. On that basis, I hope that the noble Lord will reconsider arid withdraw his amendment.

I turn to Amendment No. 140. I must confess to a number of difficulties with the new clause. Subsection (2) would provide for new licences to run telecommunications systems to include a requirement to establish or contribute to a telecommunications relay service, to which the noble Lord referred, for the use of people with hearing or speech impairments. This power already exists under the broadly-drafted provisions of the Telecommunications Act 1984 at Section 7(5) (a). As Members of the Committee are probably aware, Oftel has recently consulted on this issue and will be considering carefully all of the responses. I am sure such well-respected groups such as the Telecommunications Action Group and many others will have responded.

This measure seeks to impose by legislation what we believe can better be achieved by agreement. Oftel is considering arrangements for relay services. It would be much more sensible to await the results of the consultations and its discussions with operators.

Subsection (3) seeks to amend the Telecommunications Act 1984 to require that: newly manufactured apparatus be designed to provide for effective use with hearing aids that are designed to be compatible with telephones". I cannot accept the burden that this would put on the manufacturing process.

I am sure that we all agree that there are some cases, and telephones are a good example, where a minor alteration at the design stage can save much time and money if, later on, the product has to be adapted or perhaps can negate the need for an adaptation at all. I do not believe, however, that measures in this area are really suited to an anti-discrimination Bill.

The new clause takes no account of the technical feasibility of ensuring that newly manufactured apparatus is compatible with hearing aids which may change in characteristic over time. At present, the only method of improving the performance of commonly-available hearing aids when used with telephones is, as the noble Lord explained, inductive coupling. This works well with traditional analogue fixed-wire phones and a number of models already prove it.

However, this method may not work with handsets using other technologies. Members of the Committee may be aware that there is, at present, such a problem with digital fixed-wire phones. This clause would effectively stop the sale of such handsets and the exploitation of the new technologies involved. Digital technology is flexible and might well give the customer an opportunity to adjust the incoming signal so as to maximise its audibility. When such developments may prove possible it would be foolhardy to inhibit research and development in that area.

The provisions of subsection (3) of the new clause would have a detrimental effect on UK manufacturers, on the growth of the competitive market and on consumers generally. There would be an immediate problem with European competition law in making manufacturers of any product conform to a higher standard which does not apply on the Continent. This could create barriers to trade, contrary to the internal market. I believe that would be unacceptable.

I can reassure the Committee that manufacturers and designers who supply their services directly to the public will be covered by the Government's Bill as service providers. However, it is right, I believe, not to extend legislation of this sort into the design and manufacturing process. It is not the business of government to regulate the design and manufacture decisions of British industry and this could only be achieved at a cost to its competitiveness. It is far better to trust to the market. As retailers and traders begin to get the message about how encouraging their disabled customers makes good business sense, so will the demand for goods which are compatible with the needs of disabled people increase.

I have set out my objections to Amendments Nos. 41 and 140, but I hope that I have reassured the noble Lord in relation to those matters and that he will feel able to withdraw the amendment.

Lord Ashley of Stoke

First, I thank the Minister for his very full and comprehensive explanation, which I greatly appreciated. I appreciated in particular what he said on Amendment No. 41. I was disappointed by his reply in relation to Amendment No. 140 but I hope that we have begun a dialogue which can continue in the months ahead. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Inglewood moved Amendment No. 42:

Page 5, line 11, at end insert: ("(cc) as to steps which it is always reasonable for an employer to have to take;").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 44 and 45. We have been giving careful consideration to the regulation-making powers that are already available in Clause 6. The existing powers in Clause 6(7) (c) and (d) enable regulations to prescribe steps which are or are not reasonable for an employer to have to take in specific circumstances. However, they do not confer power to say that it is never (or always) reasonable to have to take a particular step.

Amendment No. 42 would allow regulations to prescribe a step which it is always reasonable for an employer to have to take. Amendment No. 43 would allow regulations to prescribe a step which it is never reasonable for an employer to have to take. Amendment No. 45 would enable regulations in either case to determine the issue of reasonableness by reference to the cost of taking the step concerned.

The Government have made clear from the outset that, while there is no upper financial limit to the duty on the employer to make a reasonable adjustment, should the need arise, Ministers would be prepared to consider setting a financial cap.

The additional effect of Amendment No. 45 is to enable the different approach of setting a general financial limit; for example, by providing that it is never reasonable to have to take a step which would cost more than a specified sum. Provision will also be possible under Amendments Nos. 42 and 45 for matters which will always be reasonable, including reference to the cost involved, although, here too, we have no current plans to make such regulations.

The amendments are necessary to ensure that the duty to make a reasonable adjustment can remain in general terms but that, should the need arise, burdens on employers—and this point was raised earlier during the debate—can be limited or certain adjustments can clearly be prescribed as always or never being reasonable. We have also emphasised on many occasions that no regulations will be made without prior consultation. I commend 'the amendments to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Inglewood moved Amendment No. 43:

Page 5, line 13, at end insert: ("(dd) as to steps which it is never reasonable for an employer to have to take;").

On Question, amendment agreed to.

[Amendment No. 44 not moved.]

Lord Inglewood: moved Amendment No. 45:

Page 5, line 16, leave out ("or (d)") and insert (", (cc), (d) or (dd)").

On Question, amendment agreed to.

[Amendment No. 46 not moved.]

Lord Gladwin of Clee moved Amendment No. 47:

Page 5, line 20, at end insert: ("( ) Regulations made under section 33, 34 or 35 of the Police Act 1964 shall not discriminate against disabled persons, except in the circumstances described in section 5 of this Act.").

The noble Lord said: The amendment is designed to extend coverage of Part II of the Bill. At present, the Police Service is excluded from the legislation. On Third Reading in another place, the Parliamentary Under-Secretary of State for Employment, Mr. Paice, when referring to the White Paper, said: The statement in the White Paper is clear. It specifically said in paragraph 3.9 that the new right 'will cover the public and private sectors, although the Government is considering certain narrowly-defined exceptions for positions with unusually demanding all-round requirements for fitness and stamina'".—[Official Report, Commons, 28/3/95; col. 898.]

I hardly think that the whole of the Police Service is a "narrowly defined" exception.

There seems to have been no consultation whatsoever, so far as I can detect, with the Police Service about its exclusion. Was the Police Service actually sent the consultative document last year? I ask that question because I can find no response in the Red Book from any of the police authorities or the Police Federation. Indeed, I have talked to at least one chief constable and to the Association of Chief Police Officers and they knew nothing about the exclusion, but would probably not be opposed to the Police Service being included.

The Police Federation was, similarly, unaware of its exclusion but now strongly favours constables being included. Of course, the issue was not debated at all in the other place. The only reference to the civilian Police Service appears in col. 895 of Hansard on 28th March. On that occasion, the Minister was introducing amendments at the tail-end of the Third Reading debate to exclude the Armed Forces, fire fighters, prison officers and Ministry of Defence police from Part II of the Bill. The Minister said: Hon. Members … may wonder why there is no mention of ordinary police officers. The answer is that they clearly fall outside the Bill's provisions in any case, and mentioning them would simply cause confusion. They are not covered by part II of the Bill because they do not have contracts of service and, as they are not crown servants although I am quoting from Commons Hansard, the grammar at this point seems to go wrong— nor are they caught by the special provisions of clause 35".—[Official Report, Commons, 28/3/95; col. 895.] Of course police forces have fairly stringent medical tests for recruits to the service and no one is saying that a force will be required to recruit or to retain disabled people who, because of their impairments, do not have the physical or mental abilities required for the job. This amendment will ensure that disabled people whose impairments will not stop them from performing the tasks of a police constable, and who apply for or seek to retain employment with the police service, will not face discrimination on the grounds of their disabilities.

What about police officers who become disabled during their careers? I wish to quote from a message I received from the Police Federation today because it is concerned about this aspect of the situation. The message states: Our main concern is with officers who, either through accident or illness, contract disabilities during their service. They can be medically discharged against their will, on the grounds that they are unable to perform the full range of police duties … At present, an officer subject to medical discharge may appeal, but only on the grounds that the decision of the medical officer is mistaken, or on procedural points. With a disabled officer, the question is not whether he suffers from the disability, but whether it is reasonable to end his police career because of it. Too often, that decision is taken because the police force has not been prepared to consider retaining a disabled officer, or will not make provision for his employment to continue, e.g. in the case of a disabled person who needs to be in a wheelchair. At the very least, there should be an opportunity for the decision of the chief officer to discharge a police officer to be tested against national standards".

Why should the police be totally excluded from this piece of anti-discrimination legislation, particularly when they are specifically included in the sex and race discrimination Acts? Excluding the Armed Forces is understandable but the blanket exclusion of the whole of the civilian police service, the Ministry of Defence police—and I am not sure what has happened to the British transport police—and all prison officers is a mistake. I hope that the Minister will say that his department is prepared to look again at these blanket exclusions. I beg to move.

11.45 p.m.

Baroness Hollis of Heigham

I wish to support the amendment so ably moved by my noble friend Lord Gladwin. I think we are suggesting here—although we may want to come back to this more broadly—that the police may be in the same situation, for example, as the prison service, although not the same situation as the Armed Forces and possibly not the same as the fire brigade, in that a large part of the service requires physical mobility and physical fitness as an essential part of the job. However, there are other aspects of the service where these are not relevant to the job. I have talked to a Member of this Chamber who has senior experience of policing and I was briefed about some of the jobs that a disabled police officer may well be able to undertake including reception work at the counter, lost property work, information technology work and the like, where a lack of physical mobility or lack—if I may put it this way—of fighting fitness is not relevant. They are not out on the streets.

This is a particular issue both for the police and for prison officers because they are both services in which—if I may put it this way—physical impairment as well as, very often, severe stress may follow from being in situations associated with riots, armed raids and the like. Both services are anxious that officers who incur an impairment as a result of, or during the course of their active service, should have the opportunity, where appropriate, to remain in the service in appropriate jobs.

As it now stands, there is a broad assumption that somehow every member of the police force and every prison officer has to be able to patrol the streets and put on their helmets and their shields. That is not the case.

The difficulty is that aspects of both services are increasingly being civilianised. Therefore, many of the traditional jobs that a disabled police officer might have been able to do within the police service are no longer available because they are being privatised and transferred to civilian life and away from the police service. It is therefore even more important that where jobs remain which can be filled by someone who remains in active service but for whom physical mobility and full physical fitness is not required, disabled officers should have access to those jobs and should not find themselves discriminated against in a blanket fashion as is now the case.

We do not argue the case for the Armed Forces. We accept that someone working in the medical services in the Armed Forces may, in the last resort, need to fight. That is not the case with police officers or the prison service. We believe that it would help the morale of those men and women enormously if they knew that if they were to suffer stress or injury in the course of their service nonetheless there remains a future for them in that service. I hope that the Minister can respond positively to the amendment moved by my noble friend.

Lord Mackay of Ardbrecknish

The Committee may be aware that members of the police force have always been excluded from the existing legislation which covers the employment of disabled people—namely, the Disabled Persons (Employment) Act 1944 and the quota scheme which is provided for in it. They are excluded because they are not employees as defined in that Bill: they are office holders. On the same basis, members of the police force are not covered by the employment provisions of this Bill.

It has been argued that the Bill provides employers with adequate assurances that they need only employ disabled people who are suitable for the job. Why then not cover the police? The public must be able to feel confident in those employed in jobs which impact on their security and safety and which have unusually demanding all-round requirements for fitness and stamina. We believe that there are exceptional circumstances which make it not in the public interest for refusal of employment or other treatment relating to disability to be subject to complaint to an industrial tribunal. Decisions on who to employ in such jobs must be left to those who have that responsibility.

Anyone who meets the entry criteria for the police service will be considered for appointment in the office of constable. However, the police are entitled to expect the highest standards of mental and physical fitness, and it would not be in the public interest that their judgment in these matters should be second-guessed by industrial tribunals.

The noble Lord, Lord Gladwin, mentioned counter duty. No doubt for much of the time counter duty is reasonably safe, ordinary and calm. However, there are occasions when that interface with the public can become extremely difficult. That does not happen only on television. It happens in reality. On Saturday night I imagine that the counters in certain police stations in some of our city centres are places where a certain amount of physical fitness and robustness may well be necessary.

For the reasons I mentioned, including that example, one must look at the police force as a whole. Police officers have an especially demanding job. The demands on them are considerable.

The noble Lord, Lord Gladwin, does not seek to bring the police within the employment provisions of the Bill. Instead, he seeks to ensure that the police regulations meet the requirements of Part II of the Bill. That would simply shift the problem sideways, by opening up the prospect of challenge to the regulations by judicial review. Those regulations set out clear and justifiable conditions for appointment to the police force, but it is to Parliament that the Home Secretary must be accountable in choosing what those requirements should be, in his judgment of what the public interest requires. The noble Lord's amendment could also have the effect of requiring a wide range of reasonable adjustments to be provided for in the regulations. The Government simply could not accept that it would be appropriate to impose an obligation of that kind on the police force.

I understand some of the points that the noble Lord made, especially about police officers who are injured in the course of their service. However, decisions about continuing to employ such officers and how they could be employed should be treated in the same way as the original decisions as to who to employ and who to take on as a police officer. Those decisions should be left to the senior police officers who have that responsibility placed on them. I do not believe that it would be in the public interest to bring the police force within the scope of the Bill, either directly or indirectly via the course to which the noble Lord, Lord Gladwin, refers in his amendment.

Lord Carter

That is an extremely interesting answer. Perhaps the Minister will help me on this point. Does he agree that in America the situation is no less violent or difficult to police than in this country? In America they have disabled policemen. I have seen them working in wheelchairs. Will the noble Lord explain what seems so impossible? The situation can be handled well in America.

Lord Mackay of Ardbrecknish

I am not sure about the American situation. I do not know whether or not they handle it well. However, in this country the situation is different. Certainly the police force in this country is markedly different from that in America. While it is interesting to look at what others do, I do not believe that we should necessarily follow them.

In our view it is not sensible to impose the same obligations on the police force as we impose on other employers, for the reasons that I mentioned: that the police force is a force of men and women who require high standards of mental and physical fitness. It is difficult to see how one could run a police force in which one has to make exceptions or alterations—whatever it may be—for certain people who do not match those criteria.

No one knows at what point in time a police officer who appears to have a job well away from what I may call the front line may be called upon to do a front line activity. That is the bottom line. I speak with a little experience. My late father was a police officer as were two of my uncles.

Lord Monkswell

I had intended to raise the case of Douglas Bader who was a legless air ace. However, I shall not do so.

One of the issues that we need to recognise is that legislation works best when it enshrines good practice. I believe that that would be generally accepted. One of the matters about which I am not sure from what the Minister said, is whether it is a requirement when a policeman becomes disabled that he be discharged; or are policemen and women who become disabled during their service career retained in employment as police officers in the discretion of their chief constables? We need to inquire about the practice in different police forces and whether employment of disabled people as police officers is currently in operation. How does the system work?

Lord Mackay of Ardbrecknish

There are two aspects to the issue. One relates to recruitment. I should have thought that my argument on recruitment is pretty well unanswerable. I believe that the public would rightly expect Parliament to retain that position.

With regard to those police officers who may become disabled during the course of their duty, or indeed because they find themselves with a disability arising from an illness of some kind, or through one of the various conditions about which we have spoken earlier, I believe that in general it should rightly be left to the chief constable to decide the nature of the disability, the rank and expertise of the officer and what can be done to help him to stay in the force if that seems the sensible way forward. To impose obligations along those lines on the force would be quite wrong.

However, I shall ask my colleagues in the Home Office—they know more about the police service than I do—what the position is in order to satisfy the curiosity that the noble Lord raised in me.


Baroness Hollis of Heigham

I wish to pick up one phrase. The Minister said "impose obligations", but no one suggests that my noble friend's amendment should be taken out of the context of reasonable costs, suitability and all the other qualifications. It merely proposes that where, in a police constable's or police officer's view, the chief constable is not behaving reasonably in allowing that person to remain in the service, he should have the same rights as anyone else.

Lord Mackay of Ardbrecknish

I have tried to explain that the police force has a different role to play. All police officers can be called upon to undertake all kinds of responsibilities, especially at moments where the police are under pressure such as in riots. It ought to be left to the chief constable to make those decisions. There is also the small matter that police officers move from job to job in the course of their career advancement. That must play a part in the considerations.

I return to the point that the police force is in a special circumstance a little like the Armed Forces of the Crown. I believe that it would be wrong to bring them within the compass of the Bill, either directly or indirectly.

Lord Gladwin of Clee

I am grateful to the Minister and other Members of the Committee who have taken part in the debate. I apologise if the wording of the amendment is flawed, but I sought to persuade the Minister and the Government to do something which they patently did not do in the other place. That is, to explain why this enormous service is excluded. When it comes to firemen, the Bill distinguishes between firefighters and people who serve in the fire service. There is reference to their contracts of employment. I do not see why we cannot make the same distinction in the civilian police service, in the Ministry of Defence police service and British Transport Police. The Minister made no reference to my question about the position of the British Transport Police under this legislation.

To pick up the point about my noble friend's curiosity, I understand the Minister's use of the word, but it is not curiosity as regards serving police officers. The answer to my noble friend is that it depends which police service one is with and the nature of the disability. It depends on how one got the disability; if it arises from some fairly high profile accident like a shooting or a car chase, the chances are that the officer will be kept on and found employment. It will certainly not be in the front line, but he will be accommodated. But if you contract a disease and become disabled, as the Minister said—as with the problems talked about today—the chances are that you will lose your job.

I am grateful to the Minister for his reply, which I find deeply disappointing. Clearly, at this time of the morning we shall not divide the Committee; but there should have been consultation with the representatives of the police forces, police authorities, the chief police officer and the Police Federation. It seems that the service is totally excluded, not as regards recruitment but regarding the position of the police officer who is disabled in employment. I fail to understand why he should not have the same rights as are extended across the rest of the nation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness O'Cathain moved Amendment No. 48:

Page 5, line 20, at end insert: ("( ) Where an employer incurs any costs specifically in order to comply with this section then for all the purposes of the Income and Corporation Taxes Acts those costs shall be treated as revenue expenses of the taxable period in which they are incurred, deductible in computing his profits or gains of that period and liable to income tax or corporation tax as the case may be.").

The noble Baroness said: This is a probing amendment to determine whether contemporaneous tax relief will be available for the extra costs which employers will have to incur to adapt their premises to fulfil obligations in the Bill.

The fear is that for tax purposes the expenditure might not be treated as deductible revenue expenditure nor as expenditure qualifying for capital allowance. It might thus fall into the trap of unrelieved expenditure which I am told is commonly known by tax officials as "nothing". It is equally important that the tax relief should be contemporaneous and not spread over future years when it would be eroded by inflation. It would not be reasonable to expect employers to absorb costs which were then taxed in an unduly penalising way. I hope the Minister can give me some comfort over this, and I beg to move.

Lord Carter

Just on a point of drafting, presumably there must be some expenditure of a capital nature. The last but one line of the amendment talks about the profits or gains of that period—that is, capital gains. If you are talking about revenue expenditure, that means all expenditure, whether it be in the normal accounting sense either accounting or capital: everything is to be treated as revenue; but towards the end of the amendment it talks about profits or gains and of course gains refer to capital.

Baroness O'Cathain

I am very grateful to the noble Lord. The amendment needs to be looked at again in terms of drafting, because in my explanation I referred to both revenue expenditure and capital expenditure.

Lord Inglewood

I hope I can be helpful to my noble friend, although I fear I cannot agree to the incorporation of Amendment No. 48 into the Bill. Changes to tax law are not appropriate to this Bill. They are a matter for the Chancellor of the Exchequer. The relevant forum for consideration of such matters would be the Finance Bill.

However, the noble Baroness will be pleased to learn that I am informed that many of the reasonable adjustments likely to be made by employers under Clause 6 of the Bill will qualify for allowances or for deductions under the normal rules of taxation. For example, the day-to-day running costs of a business are written off for tax purposes when they are incurred. This is the point I was trying to make to the noble Lord, Lord Monson. These expenses would include salaries and wages, rent and rates, maintenance and similar costs. In so far as any expenditure under Clause 6 is a day-to-day cost of running the business, that expenditure could therefore be written off immediately for tax purposes. So, for example, a firm that employs a reader for a visually impaired employee could write off the cost of employing the reader for tax purposes.

I understand that capital expenditure on machinery and plant qualifies for capital allowances at the rate of 25 per cent. a year on a reducing balance, which allows 90 per cent. of the cost to be written off for tax within eight years. Such expenditure under Clause 6, including specially adapted lifts or toilets, specialist furniture or computer equipment, would qualify for machinery and plant capital allowances. Additionally, expenditure on the fabric of an industrial building or structure, or a qualifying hotel, which in effect most hotels are, would qualify for industrial buildings allowances of 4 per cent. a year for 25 years.

In other words, it seems that employers would qualify for some form of allowance or deductions for much of the expenditure under Clause 6. Therefore, in the circumstances, I hope the noble Baroness will be able to feel reassured and will withdraw her amendment.

Baroness O'Cathain

I am very grateful to my noble friend the Minister. But I have just one problem, which is that normal capital expenditure in a business is used (shall we say?) over nine years. For example, new plant or new machinery would be utilised over that period, and the writing-down occurs over that period. But if you are going to have an adjustment to premises which is a one-off expenditure in order to employ a disabled person, that is not necessarily something that is going to be utilised over nine years. Certainly it is to be hoped the person is still going to be in employment over that nine years, or whatever; but it is a one-off cost which is not undertaken as part of the normal running of the business. My object was, if it were at all possible, to have that written off in the year in which it was incurred. If that could be done, it would be most helpful. Perhaps I may ask the Minister for his view on that, or perhaps he will look at it and come back in due course.

Lord Inglewood

Unfortunately, I am not the Chancellor of the Exchequer, so I am hardly in a position to give the noble Baroness the kind of reply she is looking for. However, I understand the point she is making and I shall certainly reflect on it.

Baroness O'Cathain

I am most grateful to my noble friend the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness O'Cathain moved Amendment No. 49:

Page 5, line 20, at end insert: ("( ) Before issuing any regulations under this section, the Secretary of State shall consult such persons as he considers appropriate, including appropriate organisations representative of employers and appropriate organisations representative of disabled persons.").

The noble Baroness said: This is coming back to the consultation issue. It is again an employment one, so I think the amendment is correct. The first one should actually have brought in access as well. This says: .… the Secretary of State shall consult such persons as he considers appropriate, including appropriate organisations representative of employers and appropriate organisations representative of disabled persons. I beg to move.

Lord Inglewood

I spoke earlier about our commitments to consult widely about material issued under this Bill, be it guidance or codes of practice. Proposals for regulations will be treated no differently; they, too, will be subject to full and open consultation. In the light of this and earlier reassurances, I hope that the Committee will accept that this amendment is unnecessary. I therefore ask my noble friend if she will consider withdrawing it, bearing in mind the assurances that I have given.

Baroness O'Cathain

I thank my noble friend the Minister. He is under no illusion; I should like to have this provision on the face of the Bill. I was not given that reassurance last time round. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6, as amended, agreed to.

Lord Carter moved Amendment No. 50: After Clause 6, insert the following new clause:

("Deductions from employer's contributions

.—(1) Regulations may make provision for any employer, who employs a person who is a qualifying employee, to make deductions from the employer's contributions payments in accordance with the regulations and in prescribed circumstances.

(2) In this section "qualifying employee" means a disabled person under section 1 of this Act.

(3) In this section "prescribed circumstances" shall include the recruitment and retention of a qualifying employee.").

The noble Lord said: I am not sure that we can deal with this amendment as briskly as we did the last one. However, I shall attempt to be brief.

As Members of the Committee will realise, this amendment puts forward a proposal to extend the employers' national insurance contributions holiday in the Jobseekers Bill to employers recruiting or keeping a disabled employee.

As all who are in the Chamber know—since we all worked on the Bill—the Jobseekers Bill provides for a one-year national insurance contributions holiday for employers recruiting a long-term unemployed person. That Bill defines a qualifying employee as someone who has been signing on for jobseeker's allowance for at least two years. This amendment would enable anyone defined as a disabled person under the provisions of the Bill to be a qualifying employee for their employer to receive a contributions holiday.

During the passage of the Jobseekers Bill, amendments were tabled to extend the definition of a qualifying employee to include a disabled person. I believe that I myself moved those amendments. The proposal was rejected by the Minister on the grounds that the main target group was the long-term unemployed. However, on Report, the Minister stated that he would not rule out extending the definition further in some way if it became clear that there was value in doing so—(Hansard, 16/5/95; col. 542.)

We feel that the disability Bill is an ideal opportunity to raise the matter again, particularly in view of the arguments for limiting disabled people's employment rights because of the additional costs faced by employers—an argument that was advanced. If an NIC holiday is considered to be sufficient incentive for employers to recruit a long-term unemployed person, it is unlikely that it will be any less of an incentive for employers to recruit a disabled person.

To take the average earnings for all occupations, to an employer a year's NIC holiday could be worth £1,217 on female earnings, or £1,657 on male earnings. Those figures are based on the New Earnings Survey and not on contracted-out contributions.

For all those reasons, I hope that the Minister can feel that this amendment would provide a useful incentive to employers to recruit disabled employees. I beg to move.

Lord Mackay of Ardbrecknish

This new clause seeks powers similar to those that were sought during the passage of the Jobseekers Bill in respect of the national insurance holiday. It also appears to aim to provide a financial incentive to employers who take on any disabled person, even those who have not been away from the labour market.

As I said during the passage of the Jobseekers Bill, the national insurance holiday is aimed at helping back into work people who have been capable of work but have not been able to find it. This is where we consider that the need is greatest, and where we feel we must target the resources we have at our disposal, in particular at the group who have been unemployed for two years or more. That does not apply with the same force to disabled people who have not been unemployed for long periods. Of course, disabled people who have been registered unemployed for two years will qualify for the national insurance holiday.

As the noble Lord, Lord Carter, mentioned, during the course of the Jobseekers Bill I pointed out that the powers are widely drawn and that they would enable us to include other groups, including disabled people, if we believed that to be appropriate. As I said, we shall carefully monitor and evaluate the success of the scheme. We do not rule out extending it further in some way if it becomes clear that there is value in doing so. But for now, as I believe I said at the time, we need to introduce the scheme within the cost constraints that apply. That means focusing help essentially on the long-term unemployed.

That argument is the same as the one I have used about the Bill in general. We want to ensure that this is concentrated on the people whom we have set out to help: the disabled. The particular scheme in the Jobseekers Bill has been devised and budgeted for on the basis of helping one particular group of the unemployed, namely, the long-term unemployed. I can do no better than repeat what I said in the course of the Committee and Report stages of the Jobseekers Bill. We want to preserve that concentration. We will monitor the situation. If we want to bring in any other group, not just the disabled, I believe that we have the powers under the Jobseekers Bill to do it. With that explanation, I hope that the noble Lord will withdraw his amendment.

12.15 a.m.

Lord Carter

I think that the Minister's answer can be described as the very faintest glimmer of hope rather than the complete extinction of it. In the light of his answer, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.51 not moved.]

Baroness Darcy (de Knayth) moved Amendment No.52: After Clause 6, insert the following new clause:

("Discrimination against disabled persons in partnerships

.—(1) It is unlawful for a firm to discriminate against a disabled person who is eligible to become a partner in that firm—

  1. (a) in the arrangements it makes for the purpose of determining who should be offered the position of partner in the firm;
  2. (b) in the terms on which a partnership in the firm is offered to that person; or
  3. (c) by refusing to offer, or deliberately not offering, a partnership to that person.

(2) Subsection (1) shall apply in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.

(3) It is unlawful for a firm to discriminate against a disabled person who is a partner in that firm—

  1. (a) by the way it affords him access to any benefits, facilities or services; or
  2. (b) by expelling him from that partnership, or subjecting him to any other detriment.

(4) For the purposes of this section, a firm discriminates against a disabled person if—

  1. (a) for a reason which relates to the disabled person's disability, it treats him less favourably than it treats, or would treat, others who do not have the disability in question; and
  2. (b) the firm cannot show that the treatment in question is justified under subsection (5).

(5) For the purposes of this section—

  1. (a) a firm is justified in treating a disabled person less favourably than it treats, or would treat, others who do not have the disability in question only if—
    1. (i) it has reached a decision that one or more of the conditions mentioned in subsection (6) are satisfied; and
    2. (ii) it is reasonable for that decision to have been reached.

(6) For the purposes of subsection (5) above the conditions are that—

  1. (a) the disabled person is unsuitable for the position;
  2. (b) the disabled person is less suitable for the position than another person and that other person is given the position, or
  3. (c) the nature of the disabled person's disability significantly impedes, or would significantly impede, the performance of any of the duties of the position.

(7) Where—

  1. (a) any arrangements made by or on behalf of a firm, or
  2. (b) any physical feature of premises occupied by a firm,
place a disabled person who is a partner in that firm, or a disabled person who is eligible to become a partner in that firm and has applied to become a partner or could reasonably be expected to be considered for a position as a partner, at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the firm to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the arrangements or feature having that effect.

(8) Where a duty is imposed on a firm by or under subsection (7) above, treatment of a disabled person may be justified in accordance with subsection (5) above only if—

  1. (a) the firm has complied with the duty, or
  2. (b) where it has not complied with the duty it would be reasonable for it to have reached the decision that even if it had done so, the treatment would still have been justified.

(9) In the case of an act which constitutes discrimination by virtue of section 28, this section also applies to discrimination against a person who is not disabled.

(10) Nothing in this section is to be taken to require a firm to treat a disabled person more favourably than it treats, or would treat, others who do not have the disability in question.

(11) Subsections (7) and (8) above impose duties only for the purpose of determining whether a firm has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.

(12) Regulations under this section may—

  1. (a) make provision as to the meaning of "arrangements" for the purposes of this section;
  2. (b) make provision as to other circumstances in which a firm is to be taken to be justified in treating a disabled person less favourably than it treats, or would treat, other persons who do not have the disability in question; and
  3. (c) make provision as to—
    1. (i) circumstances in which arrangements are, or a physical feature is, for the purposes of subsection (7) to be taken to have the effect mentioned in that subsection, and
    2. (ii) circumstances in which the provisions of regulations made under section 6(7), (8) and (9) are to be taken as applying to a firm in relation to a position as a partner in that firm as, under those provisions, they apply to employers.").

The noble Baroness said: Partnerships in employment are not covered in the Bill as it stands, as I mentioned at Second Reading. A shorter amendment with the same aims was moved and withdrawn in another place in Standing Committee E on 28th February. This amendment is much longer. It has taken into account some of the worries expressed in the other place and brings it into line with provisions in the Bill relating to employment.

Both the Sex Discrimination Act and Race Relations Act include a right not to be discriminated against in relation to a partnership. The latter Act limits the right to firms of more than five people. However, the Law Society and BMA are currently appealing to the Government to remove the restriction for race. They say that if discrimination is wrong on the ground of sex they can see no reason for not saying that it is also wrong on ground of race. Racial discrimination is either right or wrong, and the size of partnership should be immaterial. Surely, the same is true of disability.

The main groups affected are members of professions which typically operate on a partnership basis: architects, accountants, solicitors, GPs and so forth. I was amazed to learn that some firms had more than 100 partners. In those cases to become a partner is a form of promotion. In instances of discrimination on the ground of disability the career development of the disabled person will be blocked. Surely, that is wrong. It should be remembered that normally somebody applies for a partnership once he or she has been working in a firm for some time and has proved himself or herself in the job. When there is a partnership opening, if the individual is capable of doing the job of a fee-earner in a professional practice there can be no additional criteria to prevent the person from taking the next logical career step. Many firms provide for the retirement of partners through cross life insurance cover. It may be difficult for some disabled people to obtain that, and perhaps it is an area where reasonable adjustments may need to be made. Apart from that, there appears to be no good reason for excluding partnerships from the Bill. I hope to receive an encouraging reply from the Minister. I beg to move.

Lord Carter

I believe it to be a fact that over the years a number of our leading lawyers have been blind. When the noble Baroness moved the amendment it occurred to me that there was one international firm of accountants which had 630 partners, some of whom were in this country and others in America. It would be odd if a disabled person was somehow barred in this country but could be employed by the same firm in America under the terms of the ADA. I would be interested to know the reason why the Government felt that they should be excluded.

Lord Mackay of Ardbrecknish

First, let me make clear that the Bill will cover partnerships in their capacity as employers, in the same way as any other employer who has more than 20 employees. Partnerships will also be covered by the access to goods and services provisions of the Bill. The noble Baroness's amendment asks for partnerships to be considered in a third category, that is, the partners themselves.

As the noble Baroness said, in many cases partners are recruited from among the employees of the partnership. In such a situation, becoming a partner is indeed a form of promotion. In that context a person will have already been covered by the disability provisions as an employee of the firm. Indeed, I suspect that, for partnerships, there is no job advertisement or application but that it is a case of a summons to go to see the senior managing partner and being invited to consider becoming a partner. But I have no great experience of these matters. I suspect, however, that that is how it is done. I hope that that kind of career progression—where, as the noble Baroness said, any disabled person has clearly been provided for and allowances have been made in whatever shape or form necessary as for an employee—would mean that at any next stage any misapprehensions or concerns among the partners about the individual's suitability would already have been resolved and the reasonable adjustments would have been made.

A partnership is a business relationship in which the partners invest often considerable resources and share the consequent profit or loss. Partners bind themselves together by an agreement. They are usually personally liable for all the debts of the partnership and an act by one partner will normally bind all the others. It is also a close relationship of trust and confidence and is quite different from the relationship between an employer and an employee.

The new clause proposed by the noble Baroness seeks to deal with the relationship between a partner or prospective partner on the one hand and "the firm" on the other. But as every partner is part of the firm, that division is not a true one. A number of issues stem from the new clause, which we need to consider very carefully. For example, there is the important issue of "reasonable adjustment". This amendment places a duty of reasonable adjustment on "the firm". I wonder whether that is the right approach. It would mean, for example, that a disabled partner has a duty placed on himself for his own benefit, because "the firm" is not a realistic description of a partnership. If one is a partner in a firm, one is not employed by the firm. That is where the pension point mentioned earlier comes in.

Since partners put their own resources into a firm, it is not clear how the question of the cost of adjustment should be dealt with, and in particular to what extent it would be reasonable for the disabled person to seek a contribution from the other partner or partners to meet the cost of the necessary adjustments.

We are not aware of unfair discrimination against disabled people being an issue in the context of partnerships. I am not yet convinced by the noble Baroness's arguments that the inclusion of partners in this part of the Bill is necessary. I should need to be convinced both that this is an area where there is unfair discrimination against disabled people and that legislating to prevent it is the best way forward. Clearly, even if I were convinced, I should have to consider very carefully how to proceed in the light of the points that I mentioned about partnerships being quite different from the employee/employer relationship, which is the meat, so to speak, of the rest of the Bill.

I appreciate that this is a serious issue. But I hope that, with that explanation, the noble Baroness will withdraw her amendment. I should be interested to hear, either at the next stage or during the course of the next few days, anything from her as to whether there is a problem and its nature, to see whether I can help her.

Lord Carter

There are two points that occurred to me as the Minister was speaking. It is now common in the large professional practices to have salaried partners. There are just a few equity partners and a lot of salaried partners. I do not expect the Minister to answer me now, but I think that the Government will have to reflect on whether they are employees or partners in the way that he defined.

Also, there is the case of the John Lewis Partnership, which was drawn to my attention by my noble friend Lady Hollis. Every member who works in that firm is a partner. Are they also excluded from the Bill?

Lord Mackay of Ardbrecknish

I should have to look rather more carefully at the John Lewis Partnership before I could answer that question. The noble Lord raised the issue of salaried partners. In some ways I can see why he did so, but it did, perhaps, add to the point that I made; namely, that this is a rather more difficult field than that of the simple employer and employee relationship. I cannot really answer the question about salaried partners off the top of my head; how they are regarded and whether they would come inside the scope of the Bill as it stands. I shall have to take advice about that and about the nature of the John Lewis Partnership. I believe that I know what I mean by partnerships and what the noble Baroness means by that. I shall reflect on those points, check up and perhaps write to the noble Lord about the particular instances that he has raised with me.

Lord Monkswell

Perhaps I may seek a little clarification from the Minister. He seemed to say that in the mechanism of going from an employee of a firm through promotion to partnership, the Act would apply because it would be discrimination in terms of promotion. I suspect that that is not what he intended to say, but that is the impression that I gained. In that case the promotion side would be covered, but all that would be left would be discrimination once a person had become a partner. I suspect that the Minister will clarify the situation.

Lord Mackay of Ardbrecknish

In view of the time of night I believe that I was reading pretty carefully from my notes on the subject, so I am sure that I did not say what the noble Lord appears to have heard me say. I believe I said, if I may paraphrase it, that in many cases a person becomes a partner, having previously been an employee. If the person is disabled in the context of this Bill, then accommodation will have been made, if necessary, to have him as an employee. Therefore, any misapprehensions or difficulties which might occur in other circumstances ought not to occur here. In other words, the other partners will be well aware of that person's ability to do the job, and given whatever changes have to be made in the office, if any, they will not be a problem. That is what I was getting at rather than the point that the noble Lord was making and as regards which he seems to have misheard me.

Baroness Darcy (de Knayth)

I am not sure that I share the Minister's confidence that I know anything about partnerships, particularly after this debate. As regards the last point about a partner who was an employee previously and therefore the accommodation would have been made, that may be all right. It would be a very great help if something on partnerships was in the Bill. I thank the noble Lord, Lord Carter, for his support. He made some interesting points. I thank the Minister for his full reply and for his offer to exchange information before the next stage. I shall find out a little more about the whole position. We all probably need to find out more. I hope to discuss the matter with him before the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish

I beg to move that the House do now resume.

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

House resumed.