§ 3.33 p.m.
§ Baroness Hollis of Heigham
rose to move, That the draft regulations laid before the House on 8th May be approved [20th Report from the Joint Committee].
The noble Baroness said: My Lords, the stickers on these forms are rather more securely in place, I am happy to say.
I move these draft regulations which implement provisions of the European Community's Employment Directive 2000/78 so far as it deals with disability discrimination. The regulations would 136 amend and extend provisions of the Disability Discrimination Act 1995 concerning discrimination against disabled people in the fields of work and vocational training. I emphasise that that is what the directive is concerned with. They also make consequential amendments to the Disability Rights Commission Act 1999 and other legislation.
As I explain what the regulations do, it may be helpful if I cross-refer back to the original text. Unlike the previous measure where there just two regulations, we have 30 here. Noble Lords may have to turn many pages. It will sound more technical than it need but I thought that that might be the most helpful approach.
While the draft regulations implement the disability provisions of a European directive, I remind the House that many of the main requirements were foreshadowed by the Disability Rights Task Force. The task force's work assisted the Government during negotiations on the directive. It helped us to identify those elements of the DDA, such as reasonable adjustments, that worked and needed to be retained; and those elements, such as current employment exemptions, which needed to change.
The draft regulations implement the majority of the disability provisions of the directive. I shall later state what is not included. If approved, they will bring into force those provisions in October 2004, more than two years in advance of the final date required by the directive. By going through this procedure, we are ensuring that a major swathe is securely banked in our legislative system by October 2004. It is good news in terms of employment and vocational training for disabled people.
I can also confirm that in my view the draft regulations are compatible with the UK's obligations under the European Convention on Human Rights.
The draft regulations make a number of significant and far-reaching changes to the Disability Discrimination Act 1995 which will have a marked effect on society and disabled people. They repeal Section 7 of the DDA so as to end the current exemption of small employers. That is the biggest single change in the regulations. Over 1 million small employers will be brought into coverage of the DDA. Employees and people seeking work in those firms will be protected if they have, or have had, a disability. That is Regulation 7.
Secondly, the regulations bring within the scope of the DDA excluded occupations. Groups of occupations which have not so far enjoyed the protection of the DDA come in. We are covering many occupations such as the police, barristers and Scottish advocates, partners in business partnerships and persons who are not technically employees because they hold an office, including people whom the Government appoint to public offices. Regulation 5 deals with office holders. Regulation 6 deals with partnership. Regulation 8 deals with barristers and advocates. Regulation 24 relates to non-Home Department police forces, prison officers and fire-fighters. Regulation 25 relates to national police force. Regulation 27 deals with employment on board ships, 137 aircraft or hovercraft. If any noble Lord wishes, I can give the cross-references back to the DDA legislation but I do not wish to complicate matters further.
Those are the two major changes: the extension of the DDA so that all employers are covered; and the extension to a range of occupations. The only significant exclusion now is the Armed Forces—an issue raised by your Lordships on several occasions.
The draft regulations make other significant changes. They outlaw direct discrimination, including prejudicial treatment of disabled people and most blanket bans. But employers need not employ anyone who is not competent, capable or available to perform the essential functions of the job in question after any necessary reasonable adjustment has been made. Obviously, we are not talking about the usual criticisms relating to blind bus drivers, and so forth. We are talking about people being able, competent and capable of performing the essential functions of the job.
Regulation 4 defines discrimination. Regulation 5 applies it to employers, contract workers and office holders. Later regulations apply it to other areas of employment and training. The regulations also end the current DDA approach that allows an employer to justify a failure to make a reasonable adjustment. Those are Regulations 4 and 5. What is new is that they bring practical work experience placements within the scope of the DDA. This is an important constituent, for example, of the New Deal for younger and older people—that is, practical work experience. Under Regulation 13, it now comes within the scope of the DDA.
Regulation 15 extends the DDA's protection to claims by former employees about discrimination arising from former employment. The point about that is that someone may be seeking to appeal against what in popular language we might consider to be constructive dismissal. Equally, if his employment has finished, it would be absurd if his right of appeal terminated with that employment. Therefore, there is a shadow effect that issues relating to previous employment may still be available and covered. Hence, we have Regulation 15.
The regulations ensure that advertisements that indicate an intention to discriminate against disabled people are unlawful. They also ensure that the DRC will be able to bring an action against those who place the advertisements for publication. That is the effect of Regulations 15 and 16. The regulations also introduce into the DDA specific provisions to ensure that harassment against disabled people is unlawful—again, this is new. Regulation 4 defines harassment and subsequent regulations dealing with specific types of occupation make it unlawful; for example, Regulation 5 applies to employment, contract workers and office holders.
The regulations also extend Part 2 of the DDA to "qualifications bodies"—namely, those which can confer a professional or trade qualification, such as the General Medical Council and the Law Society. In earlier discussions with, I believe, DRC, the phrase 138 "qualifying bodies" was often used. We have now replaced that with "qualifications bodies" in order to make it more clear.
Given that description, I turn now to what the draft regulations do not do. The draft regulations are not a poor man's disability Bill. They are a further step towards meeting our manifesto commitment to extend rights and opportunities for disabled people. Because they are made under Section 2(2) of the European Communities Act 1972, they have the same status as primary legislation. They deliver the same outcomes, but they are securely bound in our law with effect from October 2004.
As I say, there are two important issues that the draft regulations do not cover. First, they do not implement the directive in so far as it applies to disability discrimination in occupational pensions schemes by trustees or managers of those schemes. It does not apply to occupational pensions. Adverse selection or even, in commercial terms, positive selection in terms of determining annuity rates would be an obvious example. We will lay separate regulations later this year on that issue after we have had further discussions with the Disability Rights Commission and the pensions industry. Both sides—the DRC and the pensions industry—accept that these are complicated measures which require a great deal of additional work. As far as I am aware, there appears to be no criticism of the Government for exempting that area of coverage—yet.
Secondly, Ministers in the Department for Education and Skills intend to bring forward separate proposals for regulations to implement any changes required by the directive in relation to Part 4 of the Disability Discrimination Act. These would be brought into place after the duties placed on educational institutions by the Special Educational Needs and Disability Act 2001 have been fully implemented in September 2005. The second exclusion is those areas that overlap with and need to be contextualised by the Special Educational Needs and Disability Act 2001. Again, I think that your Lordships will understand the point of that.
In conclusion, the draft regulations introduce meaningful and worthwhile changes to the employment provisions of the DDA. Every small employer in the country will be covered. More than 1 million more employers will be included in the DDA. Seven million additional jobs and 600,000 disabled people in those jobs will be protected. This is a major advance in rights at work for disabled people.
The draft regulations are the next step towards meeting our manifesto commitment to extend rights and opportunities for disabled people. Further significant changes should flow from our draft disability Bill that we expect to publish later this year. As I said at the start, we have discussed the need to improve civil rights—above all, in the field of employment—for disabled people on many occasions. These draft regulations do precisely that. I hope that they will be warmly welcomed by the House today. I commend the order to the House. I beg to move.
139 Moved, That the draft regulations laid before the House on 8th May be approved [20th Report from the Joint Committee].—(Baroness Hollis of Heigham.)
§ 3.45 p.m.
§ Baroness Darcy de Knayth
My Lords, I thank the noble Baroness for the helpful and wonderfully clear way in which she has introduced these regulations, and taken us through the detail. I welcome them enormously, although, as the noble Baroness has already said, I fear that they are not as comprehensive in scope as they need to be to implement the EU employment directive in full. I understand that the Disability Rights Commission says that the occupational pension scheme is a very complicated area. I welcome the assurance that the noble Baroness will try to sort something out in that respect. I look forward, with anticipation, to the DfES regulations.
The removal of the small employers exemption—Regulation 7—and extension of the DDA to a much wider range of employment situations by October 2004 is to be very strongly welcomed. I shall confine my remarks to two areas that have been of particular interest to me—namely, the qualifications bodies and arrangements for disabled people in work placement schemes.
I am delighted to see that the regulations extend the coverage to qualifications bodies. Disabled students may currently be denied the opportunity to undertake a particular course of study by education institutions because of hurdles erected by some professional bodies. That is quite wrong, as the noble Baroness said. It is absolutely right that these qualification bodies should be required to facilitate opportunities for disabled students and to justify objectively any competence standards they may set. The provisions are complex and would almost warrant their own code of practice as SKILL—the National Bureau for Students with Disabilities, of which I am president—proposed in its response to the first draft of the regulations. I believe that I saw the noble Baroness almost nodding her head in agreement at the complication of the matter.
The wide definition of "qualifications body" seems to suggest that examining boards will be covered by the provisions when awarding a GCSE in maths, for example, which is an essential qualification for so many different professions, particularly teaching. Can the Minister confirm that this is the case? I should like to ask a further question for clarification on the extremely welcome extension of the DDA to disabled people on work placements. Can the Minister explain why new Sections 14C and 14D of the DDA specify that the work placement must be part of a vocational training scheme to be covered by the DDA? The Disability Rights Commission believes this to be too narrow an interpretation of the directive which applies to occupation and vocational training in the broadest sense.
I am concerned that the wording used in the regulations would exclude disabled people undertaking work experience placements, as part of 140 the New Deal, from the protection of the DDA. Can the Minister explain why the provisions have been cast so narrowly and clarify what types of vocational training programmes will be covered? For example, would a two-week placement as part of a life skills course for people with learning disabilities be included in the provision? The Minister will remember that this House previously expressed the view that all work placements should be covered by the DDA—indeed, we passed an amendment to that effect last year to the Disability Discrimination (Amendment) Bill. introduced by the noble Lord, Lord Ashley of Stoke.
In conclusion, in many respects these regulations cannot come soon enough, but there remain the one or two issues that the noble Baroness mentioned in relation to employment protection and equal career opportunities which I look forward to being satisfactorily addressed in the near future. In the mean time, I warmly welcome the regulations.
§ Lord Ashley of Stoke
My Lords, I have one regret to express about these regulations—that is, that it has taken so long for the Government to get around to them. It was always scandalous that millions of workers should be excluded from the protection of the Disability Discrimination Act. One million employers and some 7 million workers were excluded from such protection. The Conservative government made a great mistake when they made the provision for any firm employing fewer than 20 workers to be excluded from the provisions of the Act. The Labour Government brought that figure down to 15, missing a great chance. They acted too timidly by making it 15 instead of zero. All this time has been wasted. It has been perfectly legal to discriminate against vulnerable workers. There is no excuse for that and no reason why the Government should not have acted before.
Having said that, they have now acted, and I congratulate my noble friend because we have been at cross purposes on this issue for a very long time. I suggested changing the regulations. I am not saying that we are clashing on this, but the Government did not do what we wanted in good time. The All-Party Disability Group will be delighted that these provisions have now been brought forward by my noble friend.
I warmly congratulate the Government. The regulations will be a great relief to millions of workers and they will have an enormous beneficial effect.
§ Lord Lester of Herne Hill
My Lords, I, too, very much welcome these regulations. Within the limits of the powers conferred by Section 2 of the European Communities Act 1972, to which I shall return in a moment, they are exceptionally well drafted.
The Minister will know of my main criticism, in which I am not alone. I was the sponsor of the single Equality Bill, which went through the House, and which received commendation from more than 220 Members of Parliament in an Early-Day Motion. It brought together the most modern, coherent and accessible legislation on disability discrimination as one Bill.
141 I shall continue to believe that the Government made an important strategic mistake in deciding to proceed using subordinate legislation under the European Communities Act 1972, instead of introducing a primary Bill that could have dealt in one go with the imperfections in the Disability Discrimination Act. Unfortunately, the Government did not take that decision. There was a poverty of ambition and perhaps a lack of basic skill in the decision-taking process.
Although the regulations are very well conceived within the tightly boned corset of European Community law, the Government will have to legislate again and again in this and other areas of discrimination law. We shall be treated tomorrow to regulations on race discrimination, and next week to religion and sexual orientation discrimination, all of which will he under different regulations, and all of which will add to the incoherence and opaqueness of the overall scheme. One needs to be almost a rocket scientist to appreciate the law, but it does not have to be that way.
I very much believe—and hope—that in two or three years a future Government will clear up the mess that Parliament is being compelled to make by passing incremental legislation by delegated legislation.
Having said all that, I do not take away from what I said at the beginning. The regulations in their own terms are most welcome. I hope that when the Government produce a draft Bill to reform the Disability Discrimination Act, they may take a leaf from the Equality Bill that was included as a result of suggestions made by the noble Lord, Lord Ashley of Stoke, and others. I am referring to the very narrow definition of disability, especially when dealing with mental disability. I was persuaded that that definition needs to be widened.
I understand why that cannot be done in these regulations, as it would affect areas that are not covered by EU law. But it is a good example of why we need to have either a Disability Discrimination Act, which deals with all of this in one place, or an Equality Act that includes disability discrimination within it. We should not have this kind of creeping mess of legislation, for which the Minister is not responsible, as I am sure that it is not her decision to proceed in a piecemeal way.
I hope that my remarks do not take away from my welcome of the regulations and the expertise involved. The drafter of the regulations must be outstanding—I believe that she was a member of my chambers. I very much hope that she will be employed in drafting a single Equality Bill sooner rather than later.
§ Baroness Wilkins
My Lords, I thank the Minister for her clear explanation of the regulations, which will be widely welcomed, including by many employers. They will extend civil rights to some 600,000 disabled people who are working in jobs that are currently excluded from the DDA and will strengthen the career and employment opportunities for all disabled people.
142 However, it is argued by the Disability Rights Commission and others that the regulations do not go far enough towards full implementation of the EU employment directive, nor do they do enough to tackle systemic discrimination. Moreover, many key changes required in the employment field, including numerous outstanding recommendations of the disability rights task force, will need to be made by primary legislation, as pointed out by the commission. Disabled people are anxious that the Government press on with those, too. There is growing unease at the delay in bringing forward the promised draft disability Bill and a desire not to lose momentum on civil rights, especially in view of moves towards a single equality body.
One of the undoubted benefits of the regulations is the introduction of the concept of direct discrimination in the Disability Discrimination Act. This means that there will be no possible justification when a disabled person with similar abilities to a non-disabled person receives less favourable treatment by an employer on grounds of disability. It will clearly outlaw prejudicial treatment imposed simply because a person is disabled, such as a blanket ban on employing people with a particular disability.
However, an equally pressing issue is discrimination against disabled job applicants and employees on the basis of medical reports that are tainted by prejudicial assumptions. Recent case law has demonstrated how assumptions made by health professionals about disabled people can be used to justify discriminatory treatment. Can the Minister assure the House that it will no longer be justifiable to refuse employment to a disabled person because of reliance on a medical report, which is based on assumptions about a disabled person, without adequate consideration of the individual's abilities or the impact of the impairment in that particular case?
Finally, one area of concern that appears not to have been addressed by the regulations is the lack of protection for those who face discrimination because they are falsely perceived to be disabled, or because of an association with a disabled person. A recent example of this involved a secretary whose child had cerebral palsy and who felt pressured into leaving her job because of her employer's attitude.
Under the employment directive the right to equal treatment is not limited to the person who is disabled. Rather, discrimination occurs when someone is treated less favourably than another on grounds of disability. Surely the DDA must be extended to cover discrimination by association, or on the basis of perceived disability to comply with the directive.
Can the Minister assure the House that this matter will be addressed alongside other much needed changes to the definition of disability, as the noble Lord, Lord Lester, said, in the forthcoming disability Bill?
§ 4 p.m.
§ Lord Addington
My Lords, my comments on these regulations can be summed up as an excellent refit of an obsolete ship. We all said that the Disability 143 Discrimination Act 1995 did not go far enough, but that it broke new ground. It was much more important that the Act stated that discimination was something that we should not have, rather than what the Act did.
There was the appalling provision that the Act did not cover an employer with 20 or fewer employees. The noble Baroness can certainly take some credit as being the person who eventually removed that provision, but it meant that vast sections of the workplace were not touched by the legislation. The appallingly long run-in time and so on has meant that many of the intended effects of the Bill have not worked. But it was a first step and, effectively, this very limited framework is now, for the first time, reasonably coherent.
But there are still holes. I wonder why the Armed Forces have to be excluded. The defence of reasonableness and the fact that a person has to be competent to do a job means that the Armed Forces would not have to take someone who could not fulfil a basic function. But those are battles for another day. The Bill is now as it should have been originally—a limited vessel in the field of disability. But we have still not gone far enough.
The Minister is on very good form. Another analogy that comes to mind is that she is someone who has come with a good hand and played it very well. She is now saying that a draft Bill is coming along through which we shall be able to address many of the points raised by my noble friend.
§ Baroness Hollis of Heigham
My Lords, to be clear, I said that we expect to publish a draft Bill. As the noble Lord will know—I am sure that he is teasing me—a decision as to when and if any Bill comes to your Lordships' House is not for me or your Lordships to determine.
§ Lord Addington
My Lords, well played and well defended. But the Government are at least saying, "We must look wider and go further. We are addressing the problem".
As the noble Lord, Lord Ashley, said, since we started off this process it has taken a long time to get here. I have always had one ambition in regard to disability rights—that is, to be able to put up my feet and say, "Well, that is that dealt with for at least the foreseeable future". That dream comes a little closer with the passing of the regulations and the tone of what the Minister said today. I hope that my crystal ball gazing will prove to be correct.
§ Lord Skelmersdale
My Lords, as has been shown by the short debate, we are all extremely grateful to the Minister for her introduction of these incredibly complicated regulations. They are so complicated that it took me many hours with a cold towel to achieve even a modest appreciation of what they are getting at.
I was, as always, pleased to see the copious commentary memorandum that the Minister's department invariably provides on these occasions. Those noble Lords who have not seen it will perhaps 144 not be surprised to learn, after the Minister's introduction and the debates we have had, that it runs to 66 pages of A4 paper—almost twice as long as the regulations themselves.
I agree with the noble Lord, Lord Lester, that the regulations are a masterpiece of the draftsman's art. As the noble Baroness said, they implement a part, and only a part—the subject of some of your Lordships' moans today—of the EU directive establishing a general framework for equal treatment in employment and occupation. The Minister says that two more orders flowing from that directive are to come. She did not say when. It may be that she does not know, but, if she does, perhaps she will let the House know.
The regulations today are concerned solely with disabled people and are made, as the noble Lord, Lord Lester, said, under paragraph 2 of Schedule 2 to the European Communities Act 1972. Indeed, I do not believe that the Disability Discrimination Act permits the kind of wholesale revision encompassed by the regulations. A quick glance reveals that we have, in effect, a completely new Act. Part 1 remains the same but Part 2 is now to start with two new sections defining what is meant by "discrimination" and "harassments". Sections 4, 5 and 6 disappear and are replaced by new Sections 4 and 6. In passing, what on earth has happened to Section 5? I am sure it is buried in there somewhere and that I will come to it.
The new Section 4 extends the provisions of the Act to agencies providing contract workers, which is clearly an overdue reform. The CBI was consulted a few months ago and raised no objection to this, to the new coverage of policemen, fire fighters, partners, barristers and advocates, or to the reformation—reformulation, perhaps I should say—of Sections 13 to 15 regarding trade and professional bodies, qualifications bodies and organisations carrying out practical work experience.
As the noble Baroness, Lady Darcy, said, this matter seems to be only partially covered in the regulations—for example, when the trainee is the direct employee of the firm providing the training—but if agencies can be covered so far as concerns contract workers and part-time workers, surely educational institutes, colleges of further education and so on could also be covered.
The Minister rightly highlighted the fact that the regulations will also apply the Act to small businesses—to those, as the noble Lord, Lord Ashley, pointed out, with fewer than 15 employees—for the first time. This derogation, I believe, was invented because of affordability so far as small businesses are concerned. It was contained in Section 7 of the original Act, which is now swept away. Can the Minister tell us how she expects this to work in practice; about the employer's duty to make practical adjustments for disabled people; and at what cost?
I know that the Federation of Small Businesses has been lobbying the Treasury for tax credits to help small employers make the necessary adjustments for disabled employees and has received a dusty answer. I confess that I am not surprised. If the Government 145 want the provision to work, as I do, being involved in a small business myself—and, indeed, as we all do— they must provide some kind of help. If tax credits are not the answer, will the Inland Revenue allow a 100 per cent write-off of the necessary expenditure in the annual accounts?
Why was Section 9, which pertains to the validity of certain agreements, repealed? It is a provision which strengthens the Act, not weakens it. The Explanatory Memorandum states that it has been replaced—but where? I said this was complicated, but I have totally failed to find it. That exemplifies my criticism of the regulations.
In my examination of what the regulations do, I have reached only the middle. I shall not weary the House by describing the other changes and additions that have been made. But that is not all: the regulations also renumber and move around those parts of the Act that remain. How are firms and lawyers—even officials—now to refer quickly to what they require? It is a nightmare of legislation by reference.
We desperately need a Keeling schedule for the whole Act, as it will he. It does not need to be statutory but I challenge the Minister to produce one. This is very important legislation. Reference has been made to the fact that the Secretary of State said earlier this year—as did the Minister today—that the department would publish a draft disability Bill later this year. We are now half-way through the year and it has become a fairly long promise. Can the Minister tell the House what progress has been made? Will it include the Disability Discrimination Act as amended? If a Keeling schedule is not appropriate, that most certainly would be.
We have no objections to the regulations in principle. Disabled people are people first, disabled second. We who are fortunate to be able bodied, should, as far as humanly possible, bend over backwards to allow them, according to their abilities, to enjoy the same rights and privileges that we enjoy. They are, for example, twice as likely as the able bodied to be unemployed, which is not a satisfactory arrangement. That inevitably means helping them to enjoy the dignity of work and not putting obstacles in their way. With a little thought and care, this can be overcome. Alas, we still in live a society that requires the law to enforce what needs to be done. It is too tempting for employers to discriminate against disabled people. Their very disabilities are discriminatory enough. I commend the noble Baroness, Lady Hollis, for presenting the regulations to the House.
§ Baroness Hollis of Heigham
My Lords, I am delighted that the regulations have received such a warm welcome from all sides of the House. I am very grateful. Even with the reservations expressed, which I shall address, I am delighted that everyone has recognised the decency of the Government's response in incorporating into British law two years ahead of the statutory requirement such a major extension of disability rights. It gives me particular pleasure for 146 once to have the uncritical—although I know it will continue to be demanding—support of my noble friend Lord Ashley.
I shall seek to address some of the comments. I may need to reply in writing on technical points about why some matters are in the regulations and some are not. The noble Baroness, Lady Darcy de Knayth, raised first qualification bodies. She was concerned that the DDA protection would not extend to bodies associated with GCSEs and A-levels. Our view is that examining bodies such as those for accountancy, law, the Bar Council, and accredited examination bodies that test competencies such as those for gas fitters under the Corgi principles are qualification bodies within the meaning of the regulations.
However, GCSEs and A-levels are not professional or trade qualifications within the meaning of the regulations. The regulations are work-related and employment focused. Examining bodies will not be covered by the qualification bodies provision when awarding those qualifications. Those qualifications represent a general standard of achievement in secondary education and do not themselves qualify for a particular trade or profession. The test already laid down by the court of appeal in case law under similar provisions in the Race Relations Act is whether the body is,similar to authorities which are empowered to grant qualifications or recognition for the purpose of practising a profession, calling, trade or activity".While GSCE or A-levels may be the means. they are not part of the qualification under the regulations.
§ Baroness Darcy de Knayth
My Lords, I gave the example of GCSE maths because one would need it in order to qualify for the professional qualification. It is part of it.
§ Baroness Hollis of Heigham
Yes, my Lords, but I do not see how we could make a distinction between those people taking GSCE maths because it might subsequently be a qualification for a job and those for whom it would not be. It is clear that the regulations are focused on work-related and professional qualifications. I shall turn to work placements in a moment.
If the noble Baroness has any reason to believe that areas of GCSEs or A-levels systematically discriminate against disabled people, let us have a look at that; I shall draw it to the attention of my colleagues in the Department for Education and Skills. That may be a more practical way. The regulations are about employment criteria, which is why, within the meaning of the law as I understand it, GCSEs and A-levels would not be covered.
§ Baroness Darcy de Knayth
My Lords, I will communicate with Skill and see if we can progress on the issue. I thank the Minister.
§ Baroness Hollis of Heigham
My Lords, the noble Baroness's second point, about work placement and vocational training, was related. She felt, as did the 147 noble Lord, Lord Skelmersdale, that the description of work placements was possibly too narrowly drawn. I accept that these are difficult lines to draw and I am not saying that we have necessarily got it absolutely right—the provision may in future have to be revisited—but we are again trying to get placements that relate directly to work and work experience.
That would mean that we are not, in this context, covering placements about enlarging life skills. For example, someone volunteering to work in a charity shop would not necessarily be covered under the regulations where it was part of getting them back into the ordinary life-flow of mixing with other people and so on. It would not be work-related. We are focusing on work placements that are directly work-related by analogy with our previous discussion about professional qualifications.
§ Lord Skelmersdale
My Lords, before the Minister leaves that point I wonder whether she will help me. We all know that the employers carrying out the training are not at fault because, due to their normal activities, they are already covered by the DDA. The gap appears to be for those people who seek out employers to create placements for training. I am advised, like the noble Baroness, Lady Darcy de Knayth, that such organisations are not covered by the regulations. Is that correct?
§ Baroness Hollis of Heigham
My Lords, it depends on the example the noble Lord has in mind. In some cases it would not be reasonable in terms of the push of the regulations—as opposed to the wider framework of a disability Bill. I am thinking on my feet so if I am misleading the House I apologise in advance. Say that someone had suffered from agoraphobia and had difficulties in leaving the house, but with a great deal of support and encouragement was able to do a couple of hours' placement in a charity shop, not because they were acquiring work skills, but because they were beginning to address some of the issues associated with their general health.
My understanding is that such a life-skills situation—which might be preparatory for a subsequent appropriate work-skills placement, perhaps involving learning IT skills and so on—would not be covered; nor is it intended to be covered. That would make the regulations too widely drawn. I am not saying that this is the last word on the matter, but that is our current distinction: whether something is directly related to work preparation or work placement as opposed to more general life experience activity, which would not be covered by employment focused regulations.
If the noble Baroness, Lady Darcy de Knayth, wishes to come back with specific examples I shall check with our lawyers our understanding of whether they would be covered. That might be the most helpful way forward. It is difficult for me to speculate in advance on how the regulations will come into effect.
The noble Lord, Lord Lester, complimented our lawyer on the drafting of the regulations. I am sure that that is completely unconnected with the fact that the 148 person concerned served in the noble Lord's chambers. I agree that it is a model of drafting that will be of help to us all. However, I disagree with his general approach of wanting a "big bang". I understand the arguments about Keeling schedules and the like. Having been involved in disability issues for some 15 years, from my experience perception issues change over time and there needs to be an incremental response.
The noble Lord went on to say that this should he part of a big bang single equality Bill, brigaded with issues of discrimination on the grounds of age, sex and race, for example. I am not sure that I accept that intellectually. Disability is very different. All of us are one sex or the other; all of us have an age, for which we may experience discrimination in one area or the other; all of us have a race, for which we may be discriminated against. That is not true for disability. Only some people experience discrimination by virtue of their disability. The rest of us would not.
§ Lord Lester of Herne Hill
My Lords, of course I recognise that one-solution-fits-all makes no sense for different kinds of discrimination, but that does not mean that one cannot have accessible, user-friendly and intelligible legislation. Does the Minister agree that the problem of using Section 2 of the European Communities Act 1972 is that it is a tight corset that prevents the Government using subordinate legislation to tackle the wider problems of disability discrimination raised by noble Lords today? Would she also therefore agree that we must aim for a single disability discrimination Act? That is not a Utopian aim. It does not matter whether it is part of an equality Act or not, but in the words of the Labour Party's 1997 manifesto it should tackle,unjustifiable discrimination wherever it exists".Can we therefore take the sensible suggestion of the noble Lord, Lord Skelmersdale, and do what a Labour government did with the Equal Pay Act 1970 when we amended it in the Sex Discrimination Act 1975? In future disability discrimination legislation, we should have something like a Keeling schedule, stating the whole of disability discrimination law in one place. In that way, lawyers such as myself would not unjustly enrich ourselves by having to deal with complicated problems that do not need to be complicated and are complicated only because of the way in which the Government choose to legislate.
§ Baroness Hollis of Heigham
My Lords, I do not seek to engage the noble Lord about the "corset" European Communities Act 1972. He has far more experience than I do on the matter, and I would not wish to use such words about something that is beyond my reach.
As for bringing together these regulations, the DDA and any possible subsequent Bill or rewriting in a Keeling schedule, I must take advice on the matter. I have not been advised on it and do not know about the practicalities. If it involved parliamentary counsel, as such things tend to, we could arrive at a situation 149 where parliamentary counsel's time was displaced from primary legislation to pursue the matter. Therefore, there is a resource implication.
I take the point that we need to make the law clear and accessible. but I need to take advice on the matter.
§ Lord Lester of Herne Hill
My Lords, I realise that it would take primary legislation, that it could not be done otherwise and that Ministers have no power to do it under Section 2 of the European Communities Act. I am simply saying that I agree with the noble Lord, Lord Skelmersdale. In a future Act, we should have one Act and not a whole series.
§ Baroness Hollis of Heigham
My Lords, I understood that the noble Lord, Lord Lester, was agreeing with the noble Lord, Lord Skelmersdale.
On the more general point about discrimination, I find it hard to conceive of a situation in which race was a relevant consideration in terms of an employment field. I can conceive, following the arguments we have had, of the acceptance we all share that competence must be relevant, and the ability to do the job is relevant to someone who has a disability. That is why the broad-brush approach would not necessarily be appropriate.
I turn to the points raised by my noble friend Lady Wilkins. She raised the question about direct discrimination regulations and asked what might happen if an employer sought to discriminate on grounds of stereotype rather than the merits of the individual. We believe that that is covered by the direct discrimination rules we have already discussed. Our regulations ensure that direct disability discrimination and failure to make reasonable adjustments cannot be justified. It is for the tribunal courts to decide whether discrimination has occurred in a particular situation.
The changes we are making will ensure that a disabled person, faced with the situation that my noble friend described, could bring a successful DDA case. I refer to situations in which an employer refuses to employ someone simply because of prejudiced and generalised assumptions. If, for example, someone had a history of depression and it was said that they could not do their job because it meant engaging with the public, that might well he a case of prima facie direct discrimination. The employer might rely on a statement by an occupational health adviser, who would have no knowledge of the person's individual circumstances. The adviser might decide that all people with clinical depression have terrible mood swings and therefore they cannot deal with the public and should not be employed in a call centre, for example. That would count as direct discrimination and would be covered in that situation.
I do not know whether that sufficiently answers the point made by my noble friend Lady Wilkins. Obviously, such a case would have to be tested at law, but our understanding is that the proposals on direct discrimination should cover the situations put to us by the DRC and those put by my noble friend today. If we need to qualify that, I shall come back to her.
150 My noble friend also raised the question of false perception. The problem is that we are trying to deal with an objective assessment, not the employer's state of mind. The example that she gave was covered more by her situation as a carer for a disabled person than as a disabled person herself. Therefore, as things currently stand, that would not come within the framework of the legislation or the directive. If, however, someone discriminated against another person because they believed falsely that that person had a disability that rendered them incapable, that would not be covered. Such a situation would relate to the employer's state of mind, and we have to deal with the objective facts of disability.
That brings us into the area of perception, which has been discussed under previous disability Bills. We have tried to stay in the territory that the person carrying the disability has to have the disability for the discrimination to be valid. It cannot rest on the assumption that the employer has false information in his mind. The classic example is when employers assume that a person must have HIV because he is living in a gay relationship and that therefore they can discriminate against that person. The individual involved might not have HIV, but he would be able to deal with the discrimination through other means, such as sexual orientation. That is the distinction we make in such situations.
§ Lord Lester of Herne Hill
My Lords, I do not agree with that distinction. I do not agree that one can confine disability discrimination in a narrow way to whether a person is in fact disabled rather than whether there is a false assumption that he is disabled. That is why it is sensible to have a single equality Act—because, in relation to sexual or race discrimination, arguments of that kind would not pass muster. I want to make it clear that I do not agree with the Government in that respect.
§ Baroness Hollis of Heigham
My Lords, I do not quite see how a false perception of sexuality could influence and come into dispute in a situation of employment. There is an issue for disability. I gave the example of HIV of a false assumption associated with a person's lifestyle. If an employer objected to that and had that false perception, that person would not have protection under DDA because he would not he disabled. We are operating not within the field of the state of mind of the employer but on the disability that the person discriminated against actually has. It would be difficult for us to test the employer's state of mind in such a situation.
We have had these debates for many years. I took part in similar debates in 1975. I know that the noble Lord, Lord Lester, disagrees, but I do not see a read-across with sex or race legislation, because the sex or race of a person is somewhat unambiguous—even if it were relevant to employment situations, which for the most part it is not.
Finally, I turn to the point about costs raised by the noble Lord, Lord Skelmersdale. My understanding is that the overall costs to employers will be of the order 151 of £6.7 million. The average business costs will be £6 per business and, in addition, there will be costs to the taxpayer of some £500,000 through the costs of employment tribunals.
§ Lord Skelmersdale
My Lords, it would help if the Minister could tell me whether those are ongoing or start-up costs in that adaptations to workplaces have to be made to employ disabled people. On the whole, that would be a one-off cost.
§ Baroness Hollis of Heigham
My Lords, there is a one-off cost of £4 million in terms of awareness and guidance for employers, with some additional costs for recruiting and advertising. The overall costs include that, and we expect that to be around £6.7 million. Much of the cost of adaptation and so on is already covered by the current access to work funding. It has tripled in real terms to about £47 million a year since 1997. My best advice is that we expect the ongoing costs to employers to be about £6 per unit.
Employers are not being asked to adapt premises and so on in advance of any disabled person seeking employment with them. There is no general duty, for example, to produce the ramp in a building in advance. In that case, the noble Lord would be absolutely right that there would be fairly high, up-front, one-off costs.
The costs—and many benefits, obviously—come with the arrival of the disabled person. That is why the distinction between one-off and ongoing costs is not necessarily a real one. There will be modest one-off costs for advertising, disability awareness and so on, but the building costs are part of the ongoing and adaptation costs, because they come with the arrival of the disabled person. My experience has been that very often help with those moneys is available from the access to work fund, which is why the costs seem as low as they do.
§ Lord Ashley of Stoke
My Lords, with regard to the implication of excessive costs for employers, does my noble friend agree that all that the Act says is that employers should not discriminate against disabled people? It also says that costs must be reasonable—that only reasonable action must be taken. So the question of unreasonable costs is quite out of order, according to the Act.
§ Baroness Hollis of Heigham
My Lords, my noble friend is right. Obviously, such adjustments may involve no cost at all. A classic example is adjusting the hours of work. Another is moving the filing cabinets around. In the United States the average adjustment for small businesses was minute, which is why the figures are as low as they are. As my noble friend says, this is simply to look at one side of the equation and to ignore the benefits, particularly in the workplace and subsequently in other areas not covered by the directives—disabled people being able to access goods and services and thus expand the country's economic base.
152 The noble Lord, Lord Skelmersdale, asked me about the Keeling schedule. I shall write to him about that, because it is an important issue and we have the legal resources of the department. I understand where the noble Lord is coming from.
The noble Lord also asked what we are doing about the two areas of exemption that are not being carried forward in the regulations. One concerns pensions and the other the special education needs educational material. We expect—with health warnings attached—that we may be able to come forward with provisions concerning disabled people in occupational pensions in the autumn. That is the best advice that I have; I cannot be more specific.
I cannot tell the noble Lord about the education matter, because that is still being worked on within the Department for Education and Skills. Given the directives, we are required by Europe to have these provisions in place by 2006. That is the broad brush description of the situation. I hope that we can advance on that timetable.
I apologise for the complexity of the regulations. I accept that they are extremely difficult. I am grateful that your Lordships thought that the explanation was as helpful as we could make it. Above all, I am delighted, as I am sure all of your Lordships are, that the regulations will represent a sizeable advance in the rights at work for disabled people. The numbers—a million businesses, 600,000 disabled people and 7 million jobs—are huge. This is probably the biggest single advance for disabled people. many of whom find the best employment situations in the small family-run firms. This will rightly be a major extension of opportunities for disabled people, from which not just they but all of us will benefit.
On Question, Motion agreed to.