§ (".—(1) The Secretary of State may make regulations for the purpose of prohibiting, in relation to any employment matter, discrimination by an employer against another person on grounds of that person's age.341
§ (2) In subsection (1) "employment matter" includes—
- (a) the offer or refusal of employment;
- (b) the termination of employment;
- (c) terms and conditions of employment;
- (d) the provision of training or skills development opportunities;
- (e) promotion and career progression.
§ (3) Regulations under subsection (1) may—
- (a) specify the types of action, or failure to take action, which are to be taken to constitute discrimination for the purpose of this section;
- (b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal in relation to cases brought under this section;
- (c) provide for penalties to be imposed or, as the case may be, compensation to be awarded in respect of offences committed under paragraph (a) above;
- (d) specify exceptional circumstances in which, in any proceedings arising under this section, it would be a defence for an employer to show, having regard to the nature and commercial viability of the business or undertaking in question, that—
- (i) it was reasonable for him, in deciding to treat one employee differently from another in relation to an employment matter, to take account of the respective ages of the relevant employees, or
- (ii) age was not a significant factor in any decision to treat one employee differently from another in relation to an employment matter.
§ (4) No regulations shall be made under this section unless a draft has been laid before, and approved by resolution of, each House of Parliament.")
§ The noble Lord said: Noble Lords will be aware from the behaviour on these Benches on the first day of the Committee stage and today that, by and large, the Liberal Democrats support the Bill and its purposes. Apart from the occasional interjection, which is intended to help, we have not chosen to replicate or duplicate the arguments advanced by the Government because, by and large, we agree with them. However, Amendment No. 271 reflects the first of three amendments that go to what we regard as a fundamental flaw in the Bill; namely, the failure to take the opportunity to do something about discrimination in the workplace.
By way of introduction, I refer noble Lords on the government side to what I believe is mandatory reading; namely, the Labour Party manifesto in the 1997 election. Page 35 speaks in glowing terms of the equal rights of the citizen and states:
We will seek to end unjustifiable discrimination wherever it exists".
§ The first area of unjustifiable discrimination which we anticipated the Government would seek to end is age discrimination in the workplace. I shall not bore the Committee by rehearsing examples of significant age discrimination. I believe it is common ground on all sides of the Committee that age discrimination exists as a serious problem in the workplace in regard to both existing and prospective employees who seek jobs. For the record, I commend to any noble Lords who are uncertain about the subject the work of Professor Smithers at the University of Liverpool, which demonstrates entirely effectively that age discrimination is a significant problem in the workplace for existing and prospective employees.342
We on this side of the Committee are somewhat surprised that the Government have failed to take the opportunity afforded by this Bill to legislate against age discrimination. I refer particularly to a speech made by Mr McCartney, a shadow Minister in another place, on a Bill introduced by the Tory government in 1996:
The Labour Party's position is quite clear … an incoming Labour Government will introduce comprehensive legislation to make age discrimination in employment illegal".—[Official Report, Commons, 9/2/96; col. 618.]
Listening to noble Lords opposite, I had understood that this Bill was their flagship legislation in which they intended to deal with the remaining questions in their mind in the field of employment legislation. I repeat the words of Mr McCartney in 1996:
The Labour Party's position is quite clear … an incoming Labour Government will introduce comprehensive legislation to make age discrimination in employment illegal".
§ No doubt the answer of the Government is that they have changed their minds and want to introduce the new voluntary code of practice to tackle age discrimination at work which they announced just in time for the Committee stage of this Bill on 14th June. I do not believe that any member of the Committee wants that voluntary code of practice to fail. We all hope that the code which has been negotiated and discussed with the relevant representative bodies, such as the TUC and others, will work. But if the code does not work we want the Government to have the legislative framework in place so that they can legislate to ensure that age discrimination, if it is not dealt with voluntarily over the next year or two, is covered by legislation in the form of the regulations provided for in the amendment. That can be done without the necessity to come hack to Parliament and find the legislative time for primary legislation. On that basis, I beg to move.
§ Baroness Gardner of Parkes
Can the noble Lord who is to respond to this amendment or the noble Lord who moved it make clear whether employers would still retain an official retirement age? Is it the intention to outlaw it so that one can simply go on for ever? This is a very important matter in terms of pension schemes and so on.
§ Lord Monson
I congratulate the supporters of these three amendments on being both principled and consistent. So often in the past, "anti-discrimination" legislation and proposed legislation has been highly selective and thus inconsistent. Having said that, even if one endorses the coercion inherent in such legislation, which I have never done, surely inserting clauses like this into the Bill, giving the Secretary of State Henry VIII powers incapable of amendment, is not the right way to go about introducing legislation of such importance. Among other things it would lead to a massive extension of the alarming litigation culture which is doing so much harm to this country.
I was very pleased to hear the Minister, the noble Lord, Lord Simon, say just over half an hour ago that he opposed the introduction of excessive legalism into the Bill. I endorse that. Each of these proposals, if 343 pursued, deserves a separate Bill to allow both Houses of Parliament the maximum opportunity for detailed discussion and amendment.
§ Lord Meston
I speak briefly in support of this amendment. Older employees are vulnerable to discrimination by being denied opportunities, denied promotion or through selection for redundancy. It is clear that age discrimination in employment takes place as the Government's own consultation report last year accepted. Unlike Australia and the United States, we do not have specific age discrimination legislation and so we oblige the older worker to resort to the less straightforward provisions of sex discrimination or the unfair dismissal statutes.
As my noble friend said, it is generally perceived that the Government have now watered down their commitment to outlawing age discrimination, simply encouraging employers with a voluntary code without any clear legal status. It is on that basis that I support Amendment No. 271. I take up the point very properly raised by the noble Baroness, Lady Gardner of Parkes. It is generally understood that no legislative provision for age discrimination could or should override a proper retirement age.
§ Lord McCarthy
I support the amendment particularly since it does not merely say whether and in what way action should be taken against non-discrimination, but it specifies in some detail the exceptional circumstances. I refer to subsection (3)(d) which states,in any proceedings arising under this section, it would be a defence for an employer to show".It then spells out what the circumstances would be. That is done quite broadly in ways which are similar to exceptions set out in sex and race discrimination; and in the case of sex discrimination, single-sex accommodation and establishments including decency, privacy and so forth. The same applies to race. It is a very reasonable and well thought-out amendment.
I make this point, although it refers to an amendment which has not yet been moved. It contrasts with the amendment as regards discrimination in the workplace on grounds of sexual orientation. There is an even wider discrimination in the workplace with a general prohibition where there are no specifications concerning exceptions at all.
§ 6.45 p.m.
§ Lord Sainsbury of Turville
I wish to underline that the Government's position on discrimination is clear. We said in our manifesto:We will seek to end unjustifiable discrimination wherever it exists".We shall deliver on that part of our manifesto, as on all the others. I therefore have considerable sympathy with the concerns which have led to this amendment, along with the proposed Amendments Nos. 272 and 273.
That said, for reasons I am about to explain, I ask the Committee to reject these new clauses. As regards Amendment No. 271, the Government believe that 344 unfair age discrimination in employment is bad for the individual, bad for business and bad for the country. Promoting age diversity and tackling age discrimination in employment is a key part of the Government's strategy of building a country where everyone, whether young or old, can play their full part. The question is one of how best to achieve that goal.
The use of legislation has not proven itself to be the best way forward in this complex area. One has only to consider the position on jobs. France and Spain, for instance, both have age discrimination legislation but their older worker employment rate is lower than in this country. In Canada, which also has legislation in this area, the economic inactivity rate among 55 to 64 year-olds is higher than in this country.
It became clear during a year-long consultation carried out by my honourable friend the Minister for Employment that effective legislation covering age discrimination raised very complex issues, not least that raised here of whether the retirement age itself is discriminatory. On the basis of listening when one has consultation, the Government are taking a measured approach, taking forward a range of initiatives that will help older people and bring about cultural change and using the lessons learned from those initiatives to inform future plans.
We need to change attitudes. Employers need to believe that people can and do add value to their business regardless of age. The results of the consultation published last year pointed to a non-statutory code of practice as being the best way to encourage the process of change. The Government have been working to develop a draft code with some key partners, including the TUC, the CBI, the Employers Forum on Age, Age Concern, the Institute of Personnel and Development, the Federation of Recruitment and Employment Services and the Institute of Management. Members of the Committee will be aware that the code was issued last Monday. A copy is in the Library. We believe that the code will bring real benefits in promoting good recruitment and employment practices irrespective of age. It will cover all aspects of employment practice from recruitment through training and promotion to redundancy and retirement. It will be backed with more detailed guidance and illustrative case studies.
The effectiveness of the code will be fully evaluated by February 2001. The groundwork that will be necessary is being put in place. We have commissioned an independent organisation to carry out the necessary large-scale research project. The results of this evaluation will help inform future plans for legislation. This will include the approach the Government take to proposals for EU directives or regulations under Article 13 of the Treaty of Amsterdam. The treaty, which recently came into force, allows the European Commission to bring forward proposals to counter discrimination on a wide range of grounds including age and sexual orientation. I shall come to the latter when responding to Amendment No. 272.
In carrying out the evaluation we shall look in detail at employer policies and practices in recruitment and employment and the impact that these have on age 345 diversity in the workforce. In order to provide a base line against which to measure changes in attitudes, practices and policies, an initial survey of employers and older people is also being carried out prior to the publication of the final version of the code. In addition, we shall publish each June key indicators showing the position of older workers in the labour market.
I hope that I have managed to reassure the Committee that the Government are far from inactive in this area and that they share the commitment of noble Lords to action against unjustified age discrimination in the workplace. Where we differ is over the means. We do not believe that the time is right for a legislative measure such as that proposed. I hope that I have satisfied the Committee with my description of what the Government are doing in this area and that therefore the amendment will he withdrawn.
§ Lord Razzall
As the Government have only recently changed their mind from the position that they took only two years ago when in opposition, I had not anticipated that in the first round of the discussion. I would be able to persuade them to change their mind again. On that basis, and with the intention of referring to it at a later stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Razzall moved Amendment No. 272:
After Clause 13, insert the following new clause—