New Clause 40 — Enquiries about disability and health

Equality Bill – in the House of Commons at 12:33 pm on 2nd December 2009.

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'(1) This section applies where-

(a) a person (A) does not proceed with an application by another person (B) for work, after asking about B's health but before making a relevant decision, and

(b) B brings proceedings before an employment tribunal on a complaint that A's conduct in relation to B's application is a contravention of a relevant disability provision.

(2) In the application of section 132 to the proceedings, the circumstances described in subsection (1)(a) are to be treated for the purposes of subsection (2) of that section as facts from which the tribunal could decide that A contravened the provision.

(3) The reference in subsection (1)(a) to making a relevant decision is-

(a) if A requires applicants to undergo one or more assessments, a reference to deciding in the light of the first assessment which applications to proceed with, or

(b) in any other case, a reference to deciding to whom to offer the work (whether by a conditional or unconditional offer).

(4) An assessment is an interview or other process designed to give an indication of a person's suitability for the work concerned; but a condition to undergo an assessment is not to be regarded as a condition for the purposes of subsection (3)(b).

(5) This section does not apply to a question that A asks in so far as asking the question is necessary for the purpose of-

(a) establishing whether a duty to make reasonable adjustments is or will be imposed on A in relation to B in connection with a requirement to undergo an assessment,

(b) monitoring diversity in the range of persons applying to A for work,

(c) taking action to which section 154 would apply if references in that section to persons who share (or do not share) a protected characteristic were references to disabled persons (or persons who are not disabled) and the reference to the characteristic were a reference to disability, or

(d) if A applies in relation to the work a requirement to have a particular disability, establishing whether B has that disability.

(6) Subsection (5)(d) applies only if A shows that, having regard to the nature or context of the work-

(a) the requirement is an occupational requirement, and

(b) the application of the requirement is a proportionate means of achieving a legitimate aim.

(7) "Work" means employment, contract work, a position as a partner, a position as a member of an LLP, a pupillage or tenancy, being taken as a devil, membership of a stable, an appointment to a personal or public office, or the provision of an employment service; and the reference in subsection (3)(b) to deciding to whom to offer work is, in relation to contract work, to be read as a reference to deciding who to allow to do the work.

(8) The following, so far as relating to discrimination within section 13 because of disability, are relevant disability provisions-

(a) section 37(1)(a) or (c);

(b) section 39(1)(b);

(c) section 42(1)(a) or (c);

(d) section 43(1)(a) or (c);

(e) section 45(1)(a) or (c);

(f) section 46(1)(a) or (c);

(g) section 47(3)(a) or (c);

(h) section 48(3)(a) or (c);

(i) section 49(1);

(j) section 53(1)(a) or (c).

(9) For the purposes of this section, whether or not a person has a disability is to be regarded as an aspect of that person's health.

(10) This section does not apply to anything done for the purpose of vetting applicants for work for reasons of national security.

(11) Asking about the health of an applicant for work is not of itself a contravention of this Act by virtue of section 13 (although action taken in reliance on the information given in response may be).'.- (Vera Baird.)

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Photo of John Bercow John Bercow Chair, Members Estimate Committee, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons, Chair, Members Estimate Committee, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission

With this it will be convenient to discuss the following: new clause 3- Mandatory pay audits

'(1) Within six months of the day on which this Act is passed the Secretary of State shall by regulations require designated employers to conduct a pay audit and to publish information relating to the pay of its employees for the purpose of showing whether there are differences in the pay of male and female employees.

(2) Without prejudice to the generality of subsection (1) regulations made pursuant to subsection (1) shall require designated employers to publish information including-

(a) the average hourly pay of male workers and the average hourly pay of female workers within its employment;

(b) in respect of each role within the organisation-

(i) the average pay awarded to workers engaged in the role;

(ii) the percentage of men and women engaged in that role;

(iii) the gap, if any, between the average hourly pay of male and female employees in that role; and

(iv) the average length of service of men and women engaged in that role; and

(c) information identifying-

(i) any description of activities carried out in the course of employment with the employer by any group of workers who are wholly or mainly women;

(ii) any descriptions of activities carried out in the course of employment with the employer by any group of workers who are wholly or mainly men;

(iii) the relative values of the descriptions of activities falling within paragraph (c)(i) and paragraph (c)(ii); and

(iv) in relation to descriptions of activities within subsection (c)(i) and subsection (c)(ii) which are judged to be of equal value to each other, the average hourly pay of male workers and average hourly pay of female workers carrying on those activities.

(3) For the purposes of this section, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or kind, which the worker receives directly or indirectly, in respect of his employment, from his employer and includes the cost to the employer of-

(a) any pensions contributions paid by the employer in respect of the worker,

(b) any bonus or other performance related or incentive payment, and

(c) any discretionary benefit granted to a worker in connection with his or her employment.

(4) Without prejudice to the generality of subsection (1) regulations made pursuant to that subsection shall specify the process which an employer must follow in conducting a pay audit, the form in which the information must be published, and the degree and means of publicity to be made.

(5) In making regulations pursuant to subsection (1) the Secretary of State shall adopt best practice for promoting awareness of the nature and causes of any pay gap between persons of different genders as set out by the International Labour Organisation from time to time.

(6) The Secretary of State shall consult with the Equality and Human Rights Commission as to how to ensure that the regulations shall reflect best practice prior to the making of the first regulations and no less than every five years thereafter and shall amend the regulations as necessary to ensure that best practice is maintained.

(7) Without prejudice to the generality of subsection (1) regulations made pursuant to that subsection shall provide that where an employer fails to publish information as required by regulations made pursuant to subsection (1) an employer shall not be entitled to submit a material factor defence in accordance with section 66 in relation to any period for which they are in breach of their obligations under those regulations.

(8) Where the information published by an employer reveals that there is a difference in the average pay of men and women doing relevant types of work as set out in section 61, then in any proceedings to enforce a sex equality rule or sex equality clause it shall be presumed that there is such a breach unless the employer can show a material factor defence.

(9) Regulations made pursuant to subsection (1) may make provision for a failure to comply with the regulations-

(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;

(b) to be enforced, otherwise than as an offence, by such means as is prescribed.

(10) The reference to a failure to comply with the regulations includes a reference to a failure by a person acting on behalf of an employer.

(11) Regulations made pursuant to subsection (1) shall provide that an employer must conduct a pay audit and publish information relating to the pay of its employees within six months of the coming into force of the regulations.

(12) Regulations made pursuant to subsection (1) shall provide that where an employer (A) is able to determine the terms and conditions of employment as between another employer (B) and its employees, A shall publish the information that B would otherwise be required to publish in a way which is consolidated with the information for all other employees of A whose terms and conditions A may determine, and where A publishes consolidated information B shall not be in breach of those regulations if it does not publish any information.

(13) A designated employer means an employer who has more than 100 employees.

(14) Regulations made pursuant to subsection (1) shall require designated employers publishing information in relation to the average hourly pay of employees to specify how much of the hourly rate constitutes ordinary basic or minimum wage or salary and how much, if any, constitutes other consideration and to specify the types and amounts of any such other consideration.'.

New clause 4- Representative actions in equal pay claims

'(1) The Secretary of State must make regulations to permit the Equality and Human Rights Commission or a registered trade union to apply to a court or tribunal as appropriate for a representative action order in relation to a defined class of persons ("the class") who would benefit from the litigation of rights, or common issues in relation to rights that members of the class may have as a result of the provisions of this Act.

(2) The regulations shall make rules in relation to the making and termination of a representative action order and its conduct.

(3) Such rules shall provide for hearings to be conducted in private when it is necessary for the issues between the members of the class and the Equality and Human Rights Commission or a registered trade union to be resolved and those issues are subject to legal professional privilege shared by members of the class.

(4) Such rules shall make provision for the hearing of any issue as defined in subsection (3) to be undertaken and managed by a different judge or tribunal from the judge and tribunal that have the responsibility for determining the rights or common issue in relation to rights, of the member class.'.

New clause 5- Hypothetical comparisons in equal pay cases

'(1) To the extent set out in subsections (2) and (3), sections 63 to 66 apply where a person (A) does not have a colleague (B) who does work that falls within section 61, because there is no such person of the opposite sex to A.

(2) The provisions of section 63 will apply to the extent that a term of A's is less favourable than a corresponding term of B would be, or that A does not have a term which B would have.

(3) The provisions of section 64 will apply to the extent that a term of A's is less favourable than a corresponding term of B would be, or if a discretion in relation to A is capable of being exercised in a way which is less favourable than it would be in relation to B.'.

New clause 6- Defence of material factor (No. 2)

'(1) The sex equality clause in A's terms has no effect in relation to a difference between A's terms and B's terms if the responsible person shows that the difference is because of a material factor-

(a) which does not constitute discrimination because of sex within the meaning of section 13, and

(b) if the factor puts or would put A and persons of the same sex as A at a particular disadvantage when compared with persons of the opposite sex, reliance upon that factor is shown by the responsible person to be objectively justified by a legitimate aim and appropriate and necessary to the achievement of that aim.

(2) A sex equality rule has no effect in relation to a difference between A and B in the effect of a relevant matter if the trustees or managers of the scheme in question show that the difference is because of a material factor which-

(a) does not constitute discrimination because of sex within the meaning of section 13, and

(b) if the factor puts or would put A and persons of the same sex as A at a particular disadvantage when compared with persons of the opposite sex, reliance upon that factor is shown by the responsible person to be objectively justified by a legitimate aim and appropriate and necessary to the achievement of that aim.

(3) "Relevant matter" has the meaning given in section 64.

(4) For the purposes of this section, a factor is not material unless it is a material difference between A's case and B's.'.

New clause 11- Pre-interview discrimination protection

'An employer (A) discriminates against a person (B) in the arrangements A makes for deciding who to offer employment if A fails to take reasonable steps to ensure that-

(a) the selection for interview is carried out on an anonymous basis, and

(b) the person selecting for interview does not know the gender, race, sexual orientation, age or marital status of B or whether B has a disability.'.

New clause 17- Discussions with third parties

'(1) A term of a person's work that prevents or restricts the person (P) from being involved in discussions with third parties about the terms of P's work is unenforceable against P insofar as P is involved in a relevant pay discussion.

(2) A relevant pay discussion is a discussion with a third party-

(a) which is about pay, and

(b) which relates to whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having) a particular protected characteristic.

(3) Being involved in a discussion includes-

(a) seeking the disclosure by a third party of information;

(b) disclosing information to a third party;

(c) receiving information disclosed by a third party;

(d) seeking advice from a third party.

(4) Being involved in a relevant pay discussion is to be treated as a protected act for the purposes of the relevant victimisation provision.

(5) The relevant victimisation provision is, in relation to a description of work specified in the first column of the table, section 25 insofar as it applies for the purposes of a provision mentioned in the second column.

Description of work Provisions by virtue of which section 26 has effect
Employment Section 37(3)
Appointment to a personal office Section 47(5) or (8)
Appointment to a public office Section 48(5) or (9).'.

New clause 21- Prohibited pre-employment inquiries

'(1) A person (A) subjects a disabled job applicant (B) to prohibited pre-employment enquiries where A makes inquiries of B as to whether B is a disabled person or as to the nature or severity of such disability.

(2) Inquiries of a disabled person as to the existence, nature or severity of their disability will not constitute prohibited pre-employment inquiries for the purposes of this Act where-

(a) the inquiry is for the purpose of determining whether an applicant requires reasonable adjustments for the interview process and is stated as being such an inquiry;

(b) the inquiry is made at the application stage for the purposes of monitoring disabled applicants, where such inquiry is made in writing, is kept separately from any application form, is anonymised, and is stated as being such an inquiry;

(c) for the purposes of positive action in recruitment, such as offering the guaranteed interview scheme, and is stated as being such an inquiry.

(3) Any invitation to request reasonable adjustments or disclose a disability under subsection (2)(a), (b) and (c) must specify the use that will be made of that information and must state that there is no requirement to provide that information.

(4) Information provided must only be used for the stated purpose.

(5) Inquiries of a disabled person as to the existence, nature or severity of their disability will not constitute prohibited pre-employment inquiries for the purposes of this Act where the inquiry is necessary for the purposes of determining whether an applicant can perform a specific employment-related function, either with or without adjustments and is stated as being such an inquiry.'.

New clause 22- Employees and applicants: prohibited pre-employment inquiries

'An employer (A) must not subject a disabled job applicant (B) to prohibited employment inquiries.'.

New clause 24- Time off for workplace equality representatives

'(1) An employer shall permit an employee of his who is-

(a) a member of an independent trade union recognised by the employer, and

(b) a workplace equality representative of the trade union, to take reasonable time off during his working hours for any of the following purposes.

(2) The purposes are-

(a) carrying out any of the following activities-

(i) promoting equality workplace initiatives and practices;

(ii) carrying out equality audits and assessments;

(iii) being consulted on workplace equality policies, practices and management systems;

(b) consulting the employer about carrying out any such activities;

(c) preparing for any of the things mentioned in paragraphs (a) and (b).

(3) Subsection (1) only applies if-

(a) the trade union has given the employer notice in writing that the employee is a workplace equality representative of the trade union, and

(b) the training condition is met in relation to him.

(4) The training condition is met if-

(a) the employee has undergone sufficient training to enable him to carry on the activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact,

(b) the trade union has in the last six months given the employer notice in writing that the employee will be undergoing such training, or

(c) within six months of the trade union giving the employer notice in writing that the employee will be undergoing such training, the employee has done so, and the trade union has given the employer notice of that fact.

(5) Only one notice under subsection (4)(b) may be given in respect of any one employee.

(6) References in subsection (4) to sufficient training to carry out the activities mentioned in subsection (2) are to training that is sufficient for those purposes having regard to any relevant equality duty imposed by this Act or provision of a Code of Practice issued by ACAS or the Secretary of State.

(7) If an employer is required to permit an employee to take time off under subsection (1), he shall also permit the employee to take time off during his working hours for the following purposes-

(a) undergoing training which is relevant to his functions as a workplace equality representative, and

(b) where the trade union has in the last six months given the employer notice under subsection (4)(b) in relation to the employee, undergoing such training as is mentioned in subsection (4)(a).

(8) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant equality duty imposed by this Act or provision of a Code of Practice issued by ACAS or the Secretary of State.

(9) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section.

(10) References in subsection (2) to equality audits and assessments are to equality audits and assessments that are sufficient for those purposes having regard to the relevant equality duty imposed by this Act or provision of a Code of Practice issued by ACAS or the Secretary of State.

(11) In subsection (2)(a), the reference to qualifying members of the trade union is to members of the trade union-

(a) who are employees of the employer of a description in respect of which the union is recognised by the employer, and

(b) in relation to whom it is the function of the workplace equality representative to act as such.

(12) For the purposes of this section, a person is a workplace equality representative of a trade union if he is appointed or elected as such in accordance with its rules.

(13) In this section "trade union" has the meaning given in section 5 of the Trade Union and Labour Relations (Consolidation) Act 1992.'.

New clause 25- Application of the National Minimum Wage

'In the National Minimum Wage Act 1998 (c. 39) for section 40 (mariners) there is substituted-

"40 Mariners

For the purposes of this Act, an individual employed to work on board a ship which either-

(a) is registered in the United Kingdom under Part II of the Merchant Shipping Act 1995 (c. 21) (and that individual is ordinarily resident in the United Kingdom); or

(b) is trading solely between United Kingdom ports, anchorages, roadsteads or offshore installations, shall be treated as an individual who under his contract ordinarily works in the United Kingdom unless that employment is wholly outside the United Kingdom; and related expressions shall be construed accordingly."'.

New clause 26- Equal pay audit following contravention by employer

'(1) In the event that a court or employment tribunal finds that an employer has contravened a term modified or included by an equality clause, the employer shall be required to undertake an audit, to be known as an equal pay audit, and to make the results of the audit available in the prescribed manner.

(2) In this section "prescribed" means prescribed in regulations made by the Secretary of State.'.

New clause 33- Mandatory pay audits (No. 2)

'(1) Within six months of the day on which this Act is passed the Secretary of State shall by regulations require designated employers to conduct a pay audit and to publish information relating to the pay of its employees for the purpose of showing whether there are differences in the pay of male and female employees.

(2) Without prejudice to the generality of subsection (1) regulations made pursuant to subsection (1) shall require designated employers to publish information including-

(a) the average hourly pay of male workers and the average hourly pay of female workers within its employment;

(b) in respect of each role within the organisation-

(i) the average pay awarded to workers engaged in the role;

(ii) the percentage of men and women engaged in that role;

(iii) the gap, if any, between the average hourly pay of male and female employees in that role; and

(iv) the average length of service of men and women engaged in that role; and

(c) information identifying-

(i) any description of activities carried out in the course of employment with the employer by any group of workers who are wholly or mainly women;

(ii) any descriptions of activities carried out in the course of employment with the employer by any group of workers who are wholly or mainly men;

(iii) the relative values of the descriptions of activities falling within paragraph (c)(i) and paragraph (c)(ii) respectively; and

(iv) in relation to descriptions of activities within paragraph (c)(i) and paragraph (c)(ii) which are judged to be of equal value to each other, the average hourly pay of male workers and average hourly pay of female workers carrying on those activities.

(3) For the purposes of this section, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or kind, which the worker receives directly or indirectly, in respect of his employment, from his employer and includes the cost to the employer of-

(a) any pensions contributions paid by the employer in respect of the worker,

(b) any bonus or other performance related or incentive payment; and

(c) any discretionary benefit granted to a worker in connection with his or her employment.

(4) Without prejudice to the generality of subsection (1) regulations made pursuant to that subsection shall specify the process which an employer must follow in conducting a pay audit, the form in which the information must be published, and the degree and means of publicity to be made.

(5) In making regulations pursuant to subsection (1) the Secretary of State shall adopt best practice for promoting awareness of the nature and causes of any pay gap between persons of different genders as set out by the International Labour Organisation from time to time.

(6) The Secretary of State shall consult with the Equality and Human Rights Commission as to how to ensure that the regulations shall reflect best practice prior to the making of the first regulations and no less than every five years thereafter and shall amend the regulations as necessary to ensure that best practice is maintained.

(7) Without prejudice to the generality of subsection (1) regulations made pursuant to that subsection shall provide that where an employer fails to publish information as required by regulations made pursuant to subsection (1) an employer shall not be entitled to submit a material factor defence in accordance with section 66 in relation to any period for which they are in breach of their obligations under those regulations.

(8) Where the information published by an employer reveals that there is a difference in the average pay of men and women doing relevant types of work as set out in section 61, then in any proceedings to enforce a sex equality rule or sex equality clause it shall be presumed that there is such a breach unless the employer can show a material factor defence.

(9) Regulations made pursuant to subsection (1) may make provision for a failure to comply with the regulations-

(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;

(b) to be enforced, otherwise than as an offence, by such means as is prescribed.

(10) The reference to a failure to comply with the regulations includes a reference to a failure by person acting on behalf of an employer.

(11) Regulations made pursuant to subsection (1) shall provide that an employer must conduct a pay audit and publish information relating to the pay of its employees within six months of the coming into force of the regulations.

(12) Regulations made pursuant to subsection (1) shall provide that where an employer (A) is able to determine the terms and conditions of employment as between another employer (B) and its employees, A shall publish the information that B would otherwise be required to publish in a way which is consolidated with the information for all other employees of A whose terms and conditions A may determine, and where A publishes consolidated information B shall not be in breach of those regulations if it does not publish any information.

(13) A designated employer means an employer who has no less than 21 employees.

(14) Regulations made pursuant to subsection (1) shall require designated employers publishing information in relation to the average hourly pay of employees to specify how much of the hourly rate constitutes ordinary basic or minimum wage or salary and how much, if any, constitutes other consideration and to specify the types and amounts of any such other consideration.'.

New clause 36- Exemption for small businesses

'This Act does not apply to any employer who has fewer than 250 employees.'.

New clause 38- Prohibition of affirmative or positive action by public authorities

'(1) It is unlawful for a public authority to promote or engage in any form of affirmative or positive action, as defined in subsection (4), when recruiting employees and making appointments.

(2) Any act by a public authority which contravenes the provisions of this section is actionable as a breach of public duty.

(3) For the purposes of this section "public authority" has the same meaning as in section 6 of the Human Rights Act 1998 (c. 42).

(4) For the purposes of this section, "affirmative or positive action" means any action that is intended to give a benefit or encouragement to a particular group or groups of people of people, on the basis of the-

(a) age,

(b) sex,

(c) sexual orientation,

(d) race,

(e) nationality,

(f) disability,

(g) religion, or

(h) socio-economic status of members of that group

(5) Such actions include, but are not restricted to, the setting and pursuit of targets in respect of any of the characteristics specified in subsection (4) for the purposes of-

(a) recruitment, or

(b) appointment of persons to any scheme, programme, post or other similar such position.'.

Amendment 33, in clause 38, page 22, line 17, leave out 'on at least two other occasions'.

Amendment 60, in clause 62, page 40, line 32 , leave out paragraph (a).

Amendment 61, page 40, line 33, leave out from 'work' to end of line 34.

Amendment 63, page 41, line 7, leave out paragraph (a).

Amendment 64, page 41, line 13, leave out subsection (6).

Amendment 65, in clause 63, page 41, line 22 , leave out from 'B,' to end and insert

'B's term is modified so as not to be more favourable;'.

Amendment 66, page 41, line 24, leave out from 'B,' to end and insert

'B's terms are modified so as to remove such a term;'.

Amendment 67, in clause 64, page 41, line 35, leave out from 'B,' to end of line 36 and insert

'B's term is modified so as not to be more favourable;'.

Amendment 1, page 43, line 1, leave out clause 66.

Amendment 68, in clause 66, page 43, line 14 , leave out subsection (3).

Amendment 69, page 44, line 23, leave out clause 71.

Amendment 70, page 47, line 2, leave out clause 74.

Amendment 13, page 47, line 27, leave out clause 75.

Amendment 34, in clause 78, page 49, leave out line 39.

Amendment 75, in clause 123, page 76, line 14 , leave out from 'forces' to end of line 16.

Amendment 76, page 76, line 26, leave out clause 124.

Amendment 77, page 76, line 37, leave out clauses 125 and 126.

Amendment 78, page 79, line 9, leave out clause 127.

Amendment 93, page 97, line 9, leave out clauses 154 and 155.

Amendment 18, in clause 155, page 98, line 7, leave out 'as qualified as' and insert 'equally qualified to'.

Amendment 125, page 151, line 24, leave out schedule 7.

Amendment 126, in schedule 9, page 160, line 26 , leave out paragraph 1.

Amendment 127, page 162, line 3, at end insert-

'(g) a requirement to be married.'.

Amendment 128, page 164, line 2, leave out paragraph 8.

Amendment 129, page 164, line 13, leave out paragraph 9.

Amendment 24, page 165, line 13, leave out paragraph 11.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The Committee heard compelling evidence from disability organisations that disabled people are being discriminated against by having their initial applications rejected by some employers once those employers are aware of a person's disability. It also heard that the widespread use of pre-employment inquiries can act as a deterrent to some disabled people making applications for work. The Royal Association for Disability and Rehabilitation, for instance, told us that restricting the use of pre-employment inquiries

"is probably the single biggest difference and improvement that could be made through the Equality Bill in relation to the employment of disabled people."

In the light of that evidence, we are convinced of the need to legislate to deter employers from asking health-related questions and using the information gained for discriminatory purposes. Through the new clause we are providing for unscrupulous employers to be brought to account if they ask questions about health and disability-for reasons not provided for in the new clause-and thereafter reject, or fail to consider, candidates for work because of a declared disability. Where an employer fails to progress a person's application after having asked a question that does not fall within the situations specified and allowed, and the person subsequently makes a claim to an employment tribunal for direct discrimination, the burden of proof will shift to the employer to show that he or she has not discriminated against the applicant because of the disability. If the employer cannot do so, they will be found to have directly discriminated and there are then issues of compensation. To ask the question and to rely on the information so as not to select the disabled candidate is unlawful. The provision will strengthen the burden of proof in favour of the disabled person, so that the tribunal must require the employer to show that it has not discriminated. Together with the guidance that we will issue, it will make it very clear to employers that they should not ask health-related questions unless they can show that they are for one of the specified purposes.

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Photo of Philip Davies Philip Davies Conservative, Shipley

The Solicitor-General talks about how she is strengthening the burden of proof, but as an eminent lawyer herself, when did she decide that the principle of being innocent until proven guilty should no longer apply in British law?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I am really grateful to be called an eminent lawyer by one so knowledgeable as the hon. Gentleman, but he is talking about the criminal law, not the civil law, in which burdens of proof shift to fulfil policy obligations. I hope that I have made that clear, but I say again that to ask health-related questions and rely on the information given to not select a disabled candidate will be unlawful.

Some Opposition Members would have preferred a provision that prohibited health and disability-related inquiries until the point that a job offer was made, but as we have developed the provision, we have had to take account of a range of recruitment processes. There are situations in which the ability to ask health and disability-related questions is essential during the recruitment process. For example, for some jobs with genuine health and fitness requirements, the candidate has to undergo a fitness assessment before a job offer is made. To delay that assessment until the point of the job offer would unduly delay and disrupt established recruitment processes. That is a fairly clear position.

The new clause strikes the right balance between protecting disabled people from prejudicial discrimination and permitting employers to seek information about health and disability, but only where it is appropriate to do so. It sets out that they will be able to ask health and disability-related questions at the application stage in four specific circumstances, without taking what I will call the "tribunal risk". First, an employer may make inquiries to identify any requirement for reasonable adjustments to the recruitment process. That is essential, as the duty to make such adjustments is fundamental to opening up opportunities for disabled people to gain employment. How can they be made if nobody knows that they are needed?

Secondly, an employer can make inquiries for the purpose of monitoring diversity in the range of people making job applications. We were told by stakeholders that that monitoring is important to encourage diversity and improve job prospects for disabled people. Thirdly, the new clause provides for inquiries that facilitate the delivery of positive action for disabled people. We all agreed in Committee that that is an important tool in improving work opportunities for disabled people.

Finally, an employer will be able to make inquiries where there is a genuine occupational requirement for the job on offer to be filled by a disabled person or a person with a particular disability. In such cases, it will be important for the employer to be able to identify candidates with the required disability at an early stage. In addition, the new clause provides for an exception for health-related questions asked for the purpose of national security vetting.

In other cases, an employer will reduce the risk of a penalty if health-related inquiries are delayed until after the applicant has passed some form of assessment or interview based on non-health criteria. If there is no form of assessment, the employer will be able to make health-related inquiries when they have decided to make a job offer. The aim is to prevent a disabled person from being screened out solely on the basis of their disability without first being given the opportunity to show that they have the skills and competences for the job on offer. That will address one of the key concerns of disability organisations-that disabled people are being screened out without ever getting to the interview or selection stage. We will do all that we can to ensure that the new provision is well known, so that it can overcome the deterrent effect that health-related inquiries made at the initial application stage can have on disabled people's willingness to apply for work. At the same time, it will promote opportunities for disabled people in the labour market by facilitating positive action and recruitment where there is a genuine occupational requirement.

The new clause will be an appropriate deterrent to employers using the inquiries in question to gain information for discriminatory purposes, and it will ensure that employment opportunities are promoted, for example though reasonable adjustments. I seek the approval of the House for the new clause.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

We welcome the intention behind Government new clause 40. It is fair to say that the Government have responded-or certainly they have attempted to respond-constructively to concerns that were raised in Committee. A number of Members on both sides of the Committee called for action, so there is a fair degree of emerging consensus on both sides of the House on this important issue, and the various parties are at least on strongly converging tracks, which is always to be welcomed.

The Minister's outline of the new clause was tremendously helpful, but she may have a little further to travel, because the measure has been greeted with a fair degree of confusion, concern and worry by some groups outside this place. They say that it is fairly complicated and that it seems to involve an awful lot of requirements for people to take things to tribunals, and they are not quite sure whether it will genuinely do the job that it is intended to do.

For example, the Terrence Higgins Trust has taken a fairly straightforward view, stating:

"THT is very disappointed with New Clause 40, and the impact it would have is minimal in relation to the US-style ban on irrelevant pre-employment health-related questions that we've been calling for."

As the Minister will be aware, the proposed new clause in my name and that of my hon. Friend Mr. Harper seeks to give effect to that basic approach.

It may be that some of concerns of the Terrence Higgins Trust will be allayed by the Minister's explanation of some of the Government's thinking behind the way they have put the new clause together, but I suggest that she has a fair way to go to speak to one or two organisations. Will she lay out some of the evidence and some of the more detailed work that she and her team have clearly been doing since Committee?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Clearly, I am very happy to confirm that we will do all we can to ensure that the reassurance the hon. Gentleman seeks is given. As I have set the clause out, it has strength in it. The difficulty about a measure that merely declares something to be unlawful is that it does not actually have a great deal of strength, but we make very clear what the consequences of behaving in a certain way are. Obviously, the idea is not that people will have to go to the tribunal, but that employers will be well apprised of the consequences of breaking the law.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

I thank the Minister for her constructive response and her willingness to provide and publish any evidence and so forth that she and her team have been gathering. I am sure that that will go a long way to reassuring organisations such as the Terrence Higgins Trust and Rethink. The latter

"expressed its disappointment...following the government's decision not to introduce a clause in the Equality Bill to stop employers asking job applicants about their medical history before deciding whether to invite them for interview."

It sounds as though those are merely technical differences. I think we are agreed on the principle, which is worth restating briefly for the record. The principle is this: there is a large body of evidence that shows that if employers ask for details of health background before interview or before a job application decision is made, there is more opportunity-let me put it no more strongly than that-for discrimination of various kinds, including, most severely, direct discrimination.

If we delay that process and say that employers may ask for details of health background only after they have decided to offer someone the job-at that point, the question becomes, "What special and reasonable adjustments may be required by someone who has a disability to allow them to do the job that they have been offered?"-the chance of disability-related discrimination is significantly reduced.

Having made those points, we welcome the Government's intention and look forward to them publishing the technical background to their work on the matter. We want to keep our powder dry as to whether that means debating the matter again at some later stage, but all being well, we are at least making steady progress in the right direction, and we salute the Government's approach.

I also wish to speak to two other groups of Conservative proposals which are in my name and that of my hon. Friend the Member for Forest of Dean-one is on positive action and the other on gender pay reporting. Our proposal on positive action seems rather technical and seeks to draw a distinction between someone who is "equally qualified" as opposed to someone who is "as qualified". That is a very small word difference, but it is profound in terms of the thinking behind it and the implications that it might have. The whole point of positive action-I think that this is widely agreed on both sides of the House-is that it is an important aid to people who would otherwise find it difficult to apply successfully for jobs and positions in all sorts of different professions and sectors of the economy, but which, importantly, stops short of positive discrimination. There is a world of difference between the two and it is an important distinction to make. Positive action, to summarise it in layman's terms, involves providing as much assistance as reasonably possible-holding someone's hand in as many different ways as possible-in all the steps that lead up to and during the interview process for a new position. It deliberately stops short of allowing the employer making the job offer to select someone who is less well qualified simply because they have the protected characteristics in the Bill. In other words, it allows helping someone to prepare and to put themselves across in the best possible way when applying for a job, but the eventual decision on who gets that job must be purely meritocratic and based on the principle of appointing the person best qualified for the job.

In Committee, there was a debate about that principle. At the start of the process, it appeared that that principle-and the distinction between positive action and positive discrimination-had been bulwarked and preserved by the use of the words "equally qualified". If two people are equally qualified for a job-what we might call a "tiebreak situation"-an employer may choose someone with a protected characteristic, say from a particular racial group or of a particular sexual orientation, in preference to someone who has not such a characteristic. The important point is that the two candidates are equally qualified. That would not, of course, breach the crucial distinction between positive action and positive discrimination. However, in Committee, we had a concerned and detailed debate about the Government's rephrasing of that provision, so that instead of being "equally qualified", it reads "as qualified". That is important because we are worried that "as qualified" might mean that of two candidates who are both adequately qualified-they both clear a minimum threshold as defined by the employer as required for the job in question-the candidate who is best qualified and well above the minimum threshold, but does not have any of the protected characteristics, may not get the job because the employer would be within their rights to give it to someone who is less well qualified but had cleared the hurdle and possessed a protected characteristic. That would breach the important distinction between positive action-giving people a hand in their preparation-and positive discrimination, which is allowing the decision on who is offered a job to be made on any grounds other than merit.

We are not the only people to be worried about the distinction. The Equality and Human Rights Commission, in its supporting documentation, has also expressed concern. In its Equality Bill report stage briefing, issued on 2 November, it said:

"Positive action would allow employers choosing between two equally qualified candidates to select the successful candidate on the grounds that they are from an under-represented or disadvantaged group."

I am interested to note that the EHRC is supporting the principle of "equally qualified" and using that phrase in its briefing document, rather than "as qualified", although I am sure that it is not the only organisation that supports the principle of "equally qualified" and that that support is shared on both sides of the House. The Equality and Diversity Forum, in its briefing on the Report stage of the Bill, says:

"The proposed provision does not permit recruitment or promotion only because a person has a protected characteristic, it only applies to candidates who are equally qualified and in a situation where a group is under-represented."

In other words, there is great consensus on the principle of "equally qualified" and applying the clause in a tiebreak situation, but I do not think that there is a consensus on the notion of allowing a candidate who is adequately qualified, but less well qualified than another candidate, to be preferred simply because they are from a minority group. That is our concern.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I was yesterday at a seminar organised by the EHRC on positive action, and it is absolutely in agreement with the way in which the Government see this issue. I can assure the hon. Gentleman of that because the chairman introduced me and said so, I went on to speak and he was on the panel with me afterwards, and a cigarette paper could not have fitted between our views.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

I thank the Minister for that clarification. My concern is that in its written documentation, the EHRC talks about "equally qualified". In Committee, the Minister said that the wording "as qualified" was effectively the same thing, but given the concerns that are being voiced by my party and many others about this-and the importance of the principle that is being addressed-and if there is no difference between the phrases, why will she not use the one that everyone else is using? I ask her to address that point if she can, and we reserve the right to press that amendment to a Division, depending on her response.

We had an extensive debate on gender pay, and the Government's proposals to introduce a requirement for gender pay reporting, in Committee. There are other provisions on gender pay in the Bill which had wide support, notably the one that would make it illegal for employers to prevent work colleagues from comparing and discussing their pay so that they can see whether, for example, women are being paid less than men for an equivalent role. However, the clause on gender pay reporting was not so unanimously supported. There was a wide consensus about the importance of the issue and the need to sort it out. The gender pay gap is one of the most pernicious, longstanding, significant and unjustifiable examples of workplace inequality in this country, and it is caused by many facets of our society, not least direct discrimination. Rightly, there was consensus on both sides of the Committee when this issue was discussed that it must be addressed and cannot be taken for granted, even though, ever since the original equal pay legislation back in the 1970s, we have seen a steady-I would not say rapid, because it has been stately and slow-and inexorable reduction in the gender pay gap. In Committee, we discussed whether that steady reduction-and it has fallen quite a long way in the last 30 years-was running out of steam and losing momentum, so that additional measures were necessary. I am happy to say that since the Committee stage, new statistics have been published that show that the gender pay gap has continued to fall. It has not fallen by much, but it continues its slow and stately reduction. I am sure that we all want it to fall faster, and we certainly need to go further, but it is an issue on which our society has made great progress over an extended period.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran 1:00 pm, 2nd December 2009

Does the hon. Gentleman accept that our progress has been poor compared with many of our neighbours, who have made significant improvements in the gender pay gap, and that Britain is falling behind? Given that we had legislation on that in 1970, it is an outrage that we are still talking about pay gaps in the region of 22 per cent.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

I am happy to accept the point behind the hon. Lady's remarks, which is that we absolutely have to go further and that there is no cause for complacency. It is worth while saying that what we have has been working-albeit too slowly-but we need to continue pushing on. It would be a courageous person who claimed that Britain is all marvellous. She is right to point out that we have further to go.

Our concern is that the causes of the gender pay gap are far from simple. Direct discrimination is clearly an issue, but many other very knotty and difficult issues will require careful addressing if we are to continue to erode and reduce the gender pay gap-and ideally at a faster rate, as the hon. Lady just mentioned. The causes of the pay gap are well known, but let me quickly summarise and rehearse a few of them. Problems with flexible working are well known. There is no doubt that, if someone is trying to combine child care, for example, with work, it is essential that they achieve a proper work-life balance and that they be allowed and helped to do that by their employer, whether public or private sector. Clearly progress needs to be made in allowing and encouraging flexible working.

Child care is another issue. Affordable child care at the right time of day, on the right days of the week and in a convenient location, is essential for anybody trying to juggle family responsibilities with holding down a job. Repeatedly in surveys, the lack of suitable, affordable and conveniently sited child care comes up as one of the top two obstacles for people with family responsibilities to getting a job and, in particular, to remaining in it. The classic pattern is that someone manages to get a job and to get through the first few weeks, but the moment they first encounter something such as a school holiday, all of a sudden their existing child care arrangements are inadequate and they soon discover that they cannot continue to juggle those two important facets of their lives. Clearly, therefore, child care is crucial.

Equally, there is the perfectly legitimate element of individual choice. I am sure that everyone would agree that it would be entirely wrong for parliamentarians to dictate to families up and down the country what their work-life balance should be and how they should prioritise child rearing, for example, versus employment. We need to create an environment in which people can make their own decisions based on their personal lives and situations, an environment in which those decisions are backed up, made simpler and supported rather than obstructed. However, it is legitimate to say that it is perfectly possible for people to take structurally very different decisions. Women might on average take different decisions from men, and part of that, in a free society, is perfectly acceptable, providing that they do it of their own free will and for the right reasons, rather than being pushed, cajoled or pressured.

There are many different facets to gender pay discrimination and many reasons for it. It is not just me and other parliamentarians saying that. Some years ago, the Equal Opportunities Commission published a working paper, series No. 17, entitled "Modelling gender pay gaps". In it, it tried to break down the causes of the gender pay gap. It stated:

"Broadly, the research finds that gender differences in life-time working patterns account for 36% of the pay gap. Rigidities in the labour market, including those that concentrate women into particular occupations and mean that they are more likely to work in smaller and non-unionised firms, account for a further 18% of the pay gap. 38% is due to direct discrimination and differences in the labour market motivations and preferences of women as compared with men. The remaining 8% is due to women's lesser educational attainment in the past".

Thankfully, the latter gap is much reduced, and in some cases has gone the other way.

The EOC report talks about the full-time gender pay gap, which is down to 12 per cent. in round numbers. The implication of those figures is that 38 per cent. of the 12 per cent. gender pay gap in full-time employment is, as the report states, due to two factors:

"direct discrimination and differences in the labour market motivations and preferences of women as compared with men", which we have just been talking about. There remains a systemic difference in this country between women with child care needs and men. In other words, roughly 5 per cent. of the gender pay gap is due either to direct discrimination or differences in labour market motivations. That means that the direct discrimination, which is the point of clause 75, and of obliging companies to publish gender pay differences, accounts for between 1 and 5 per cent. of the gender pay gap. That does not make it unimportant-it is potentially very important-but it is crucial for the purposes of the debate to understand the size of the issue that we are addressing.

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Photo of John Mason John Mason Spokesperson (Work and Pensions)

I am concerned about the drift of the hon. Gentleman's argument, which has been to reduce to 1 per cent. the 22 per cent. gap quoted by Ms Clark. Is the intention of that to weaken the rights of women?

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

Emphatically not. I am trying to ensure that people in Parliament and the world outside who might be watching have a sense of the size of the opportunity that this measure might help with. As I was explaining, there are many other causes of the gender pay gap-I am sure that everybody in the Chamber knows that-and those causes need to be addressed in other ways. Most of my other points about flexible working, child care arrangements and so on need to be addressed by other parts of Government policy and, indeed, through employer action.

We have just been talking about positive action. In laymen's words, I would argue that all the other points could, and should, be dealt with through positive action to help women to achieve their potential in employment.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Does the hon. Gentleman not see that the 22 per cent. differential relates to women in work, and that the other issues to which he referred are not a reason for that 22 per cent. still to exist?

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

The point that I am trying to make is that the pay differential is caused by all those different points. The EOC report stated that only 38 per cent. of the difference in full-time work-our debate depends on whether we are talking about part or full-time work-which starts from a base of 12 per cent., is due to direct discrimination or differences in labour market motivations. I am just trying to establish the size of the additional reduction that we could achieve by publishing gender pay information: it is at most 38 per cent. of 12 per cent. and quite possibly only a small fraction of that. The point that I am trying to make, therefore, is that there are other things that we could, and should, be doing. I am sure that everyone on both sides of the House agrees that many things need to be done to improve access to child care and so forth. The Government have attempted to do that, and my party has published its proposals to do so. All those other things are vital if we are to continue making progress in reducing the gender pay gap.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The hon. Gentleman's argument very much minimises the size of the problem. I am concerned about 100 per cent. of the women who are discriminated against. There are other issues, but they do not play a part in gender pay scales or their publication, whether in terms of women in full or part-time work. That differential still exists for those women.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

I completely accept the hon. Lady's point that the differential still exists for those women. I am trying to break the figures down so that we can understand which bits might be due to direct discrimination by employers, which is the most pernicious piece of the gender pay gap and needs to be a determined focus of our aim of reducing that part of the gap. However, it is important for us to understand that, even if we reduce to zero direct discrimination by employers-that would be wonderful and something for which we should all aim-we will still have a gender pay gap, if we do not fix all those other things. According to the EOC's analysis, the majority of the existing gender pay gap will still exist if we do not sort out the other points. That is all that I am trying to get at.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I am intervening now because we are debating a massive group of amendments and it is better to deal with specific issues as we go through it. First-and very quickly, of course-the pay transparency provisions are not about direct discrimination only. Every time the hon. Gentleman refers to discrimination, he completely misses out indirect discrimination, which is still a big component. We are not just looking for direct discrimination. With pay transparency, we will find things such as ghettoisation. In particular departments, there have always been women who have always been underpaid. If we get transparency there, so that we can see what is happening, we can delve into it and remove the problems. It is not about disclosing just direct discrimination; some of it will be indirect discrimination, and some of it will be nobody's fault. Business, the public sector and employees now understand that unless people are fair they will not get the best service from their employees. We are just trying to look at that. To be honest-and to put it neatly-the hon. Gentleman is barking up the wrong tree by trying to confine what we are doing to its impact on direct discrimination. He is missing the point.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

The Solicitor-General is right that I have been focusing on direct discrimination up until now, and it is absolutely true that there are many other issues that responsible employers are already addressing and will need to continue to address. It is pretty unnecessary to have a gender pay reporting requirement to work out that every person in a particular department is a woman or that they are grossly over-represented in a particular department. One only has to walk into a department and look around to see that.

It is also true that the measures required to deal with some of the examples that the hon. and learned Lady gave, such as ghettoisation, are different. Such problems may require mentoring or help with career development, for example, which are the kinds of things that we addressed briefly in our discussion about positive action. Many employers are now undertaking such actions in an attempt to increase the proportion of women whom they first recruit and retain, and then help to progress throughout their organisations. I hope that I am not barking up the wrong tree, because I think that those things are important. I was just seeking to get an estimate of the size of the opportunity that we are talking about.

However, there is agreement on the fact that it would none the less be worth while going ahead with a gender pay reporting requirement, even if we were talking about only a couple of percentage points of the pay differential. It would also be worth doing if the costs were proportionate. We are talking about a pernicious problem and an injustice that needs to be dealt with. Providing that we can deal with it in a way that is proportionate and sensible, we should get on and do so.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

Another statistic from the report that the hon. Gentleman has quoted from is that 60 per cent. of women's employment is concentrated in just 10 occupations. Is not one of the issues that many of the jobs that women have traditionally chosen to do are undervalued? That is why we need to make the Equal Pay Act 1970 work, and also why we need the reporting provisions-and, I would say, other provisions-to strengthen equal pay legislation.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

The hon. Lady makes an important point, which is akin to the point about ghettoisation. There might be different functions in a company or even entire sectors in which women have traditionally found it easier to get work. I would suggest that the reason for that will at least partly be the convenient hours that women can get in those sectors and the fact that they might fit more directly with the breakdown of time between child care and family responsibilities and work. However, that does not necessarily make what happens right. That is why I talked earlier about the importance of adequate child care, in order to give women more choices than they have had in the past, although publishing pay reporting figures is not necessarily the answer to that problem. Sorting out child care would be a far faster and, I would suggest, a far more robust response to the problem.

Gender pay reporting would none the less be worth doing if it were a trifle-something that would be cheap to do-and if we could thereby address the full-time gender pay gap of between 1 and 5 per cent., wiping it out or at least providing the information that would allow it to be wiped out. If gender pay reporting were that cheap, my party would be saying, "Well, this is a sensible and acceptable price to pay." However, the costs are causing me and many others grave concern.

In the Government's defence, the calculation has risen-I had a bit of a go at the Government about the issue in Committee. The House will be pleased to hear that the calculation has risen-it has nearly doubled, in fact. The Government say that the one-off implementation costs for large companies-those with more than 250 employees, such as Tesco, Shell or O2-have gone up from an estimated £92 per firm to £215.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran 1:15 pm, 2nd December 2009

Before the hon. Gentleman talks in any more detail about the costs of gender pay reporting, does he not accept that equal pay legislation has been in force since 1975? That is more than 30 years, yet employers have been breaking the law since then by paying men more than they pay women. If it was any other area of society, we would be talking about taking action against those people in the courts. Why does he think that it is legitimate to discriminate in that way and that the state should not insist that we take urgent action to ensure that those people stop breaking the law?

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

I am afraid that I am very disappointed with that intervention, because I had hoped to make it clear, from both the tone and the content my remarks so far, that I think it essential that we should continue to make progress in this area. We have more progress to make, as the hon. Lady and I agreed in our earlier exchanges. What I am debating is how to do that and what the most effective way of doing it quickly is. In this case, I am also debating the best way of doing that in a cost-effective way-that is not to say that it is not worth doing anyway, but it has to be cost-effective and done in a proportionate way.

To return to my earlier point, the one-off implementation costs in the Government's impact assessment have gone up from £92 per company to £215, and the ongoing cost per company has gone up from £15.38 a year to £41. Under the new regime, therefore, Tesco or any other large FTSE 100 company will spend £215 to prepare for gender pay reporting and another £41 to do it annually thereafter. I do not think that I am alone in welcoming the fact that the Government have gone away and increased their numbers, but I fear that they have not increased them by anything like enough. Frankly, those numbers are still not even remotely believable. If we can come up with numbers that are believable and still proportionate, my party will take a very different approach, but we remain concerned and therefore seek the Minister's reassurance.

Gender pay is clearly important, but it is not the only source of pay differentials according to people's protected characteristics. There are not just gender pay differentials; there are also differentials on the basis of disability and many other protected characteristics. The issue is important, as I have said. However, if it is that important, we should be considering ways to erode those other pay differentials. We are concerned that by taking the sledgehammer to the problem that the Government propose, the wider issues will perhaps be ignored, or at least not given enough priority. I will now bring my remarks to a close. I look forward to the contributions of other hon. Members.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Let me start by dealing with the pre-employment questionnaires. We on the Liberal Democrat Benches welcome Conservative new clauses 21 and 22, which deal with prohibited pre-employment inquiries. Like new clause 11, they address some of the problems that people have before they even get into work. Whereas most of the Bill is concerned with discrimination in work, those new clauses deal with the barriers in the first place.

It was interesting to listen to the debate between the Labour and Conservative Front Benchers. I hope that they will reach an accommodation, because they both have right on their sides. The Conservative new clauses would firmly place the onus on employers not to make inquiries about a candidate's disability status. That is the most important point-the question should never be asked, so that there can never be an inhibition on progressing, as opposed to being able to make a complaint only afterwards, whether the candidate has got the job or not.

On the other hand, the Government's new clause 40 seems to us to impose a slightly narrower restriction. For individuals to demonstrate that they did not get the job because of the pre-employment questions they were asked, there is a higher hurdle, making it more difficult to police and to prevent such inquiries. The merit of the Government's new clause is that there is a sanction and that a clear framework is set out for how an individual should seek a remedy when they have a complaint. That remedy, however, applies only if they did not get the job. The framework is welcome, but the narrowing is not. The Conservative position is nearer to that of the Liberal Democrats. Through this Bill, we are seeking to level the playing field-that is the point-and to give people the fairest chance of getting to interview without being subject to the potential prejudices of the employer.

That brings me to the Liberal Democrat new clause 11. Much of the Bill, as I said, is about what happens once people have got their job. On the basis of my experience of sitting on employment panels-I am sure other hon. Members have sat on them, too-as a local councillor for eight years in Haringey and for five years as an assembly member at the Greater London authority, together with all the anecdotal experiences and stories one hears, I have long been concerned that job applicants are being discarded at first sift either by the employer or by human resources departments. That prevents them from getting on to the shortlist and from being interviewed.

I also recall the case in my own office here when two interns, whose surnames were Hussein and Patel, applied for a job. They were far more qualified than me, I have to say, and they told me about the hundreds of job applications they had made without even getting through to an interview. They certainly felt that their names played a part in that discard.

From subsequent study and from thinking about the possibility of placing this new clause into the Bill, I have become aware of American research on brain patterns. It shows how when it comes to foreign-sounding names, it is the brain-rather than racism per se-that recognises and accepts what is familiar but subliminally and unconsciously discards what is alien or foreign. If someone is being interviewed by a racist, this is obviously not going to make a difference, but to be discarded, as my two interns were and as many others have been, simply because the brain works in a particular way seems to be a matter that we could and should look into.

When children are being examined, we give them a number so that they can write it on the paper and avoid any inherent bias. The proposition is that people applying for a job could use something like a national insurance number so that they could avoid being knocked out at first sift. That will not solve all the problems all the time, but it is an entry-level requirement. When one comes to interview, all is then revealed.

On Second Reading, I floated the thesis and, undeterred, tabled an amendment in Committee, and it was interesting when the Solicitor-General told the Committee that the Department for Work and Pensions was undertaking some survey work. At that point, she said that although she did not wish to tantalise the Committee, the first showings suggested significant discrimination. I was quite excited by that, as it identifies a real problem; whether or not this new clause is the solution is a matter for discussion. If there is a big problem, however, the use of anonymous CVs will be simple, effective and cheap-resource non-intensive, which should please Conservative Members, because it does not cost anything and does not involve a cost to business.

Many benefits would flow from removing discrimination in the job market-opening up opportunities, spreading wealth, bringing about greater social cohesion and economic efficiency, from which we all benefit. The Mail on Sunday obviously got the wrong end of the stick about what the Government were doing when it said that the City was very upset. Excuse me, but undertaking research into an issue to establish whether a change in the law is required sounds pretty sensible to me and I commend the Government and the Department for Work and Pensions for undertaking it, especially when it is on such an important issue as discrimination in employment practices. A smart employer would also know that the depth of scientific research backs up what the new clause is designed to achieve.

I am very encouraged that this research has been carried out and I very much hope that the Solicitor-General will elaborate on the findings, which I understand showed clear discrimination based on name alone. People say "What's in a name?" and I think the answer is "Quite a lot." I greatly hope that the Government will support new clause 11. I will listen carefully to the Solicitor-General before I decide whether to test the will of the House, as she may wish to say more and propose that more work needs to be done.

On the gender pay gap, which I believe is an extremely important issue, I do not think that there is a million miles between the Government and the Liberal Democrats other than about the degree to which we wish to see change and perhaps over the Government's belief that another four years of voluntary disclosure will work. The Liberal Democrats do not believe that it will. I was concerned and upset again, as I was in Committee, to hear John Penrose arguing in a way that suggested he wanted to minimise the effect of what we are seeking to do by closing the gender pay gap. Good Lord- [Interruption.] The hon. Gentleman shakes his head, but the whole manner in which he put the case seemed to suggest that he was saying, "Well, basically women have children, so we kind of have to understand that that puts them outside the workplace." [Interruption.] That is what it felt like as I sat listening to the hon. Gentleman, and these are arguments that women have heard for many decades. What he said seemed to have those echoes and tones.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

That was emphatically not what I was saying and it was not the intention of my remarks or the impression that I wanted to convey. What I was trying to say was that this is a crucial and pernicious problem that has persisted for a long time, albeit improving at a very slow rate, so that we needed to target what we do about it appropriately. Different parts of the gender pay gap, which is caused by different things, require different public policy responses. My argument was that this particular public policy response is a comparatively expensive way of focusing on a very small part of the problem when we would do better to focus on all the other bits, which would reduce the gap much faster.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I totally disagree because the message and intention behind disclosure would affect all areas in which women find themselves discriminated against; it does not pertain only to the market share of this problem, which the hon. Gentleman sees as so minimal and I see as so great.

A series of Liberal Democrat new clauses are designed to deal with the issue of equal pay for women-involving mandatory pay audits, representative action, hypothetical comparators and defence of material factors. The issue is so important, which is why I am so pleased to debate this group of amending provisions on the Floor of the House. As Ms Clark made so clear, it would be unforgiveable if women in this country did not secure the laws they need to bring about change to a disgraceful situation that has applied for nearly 40 years since the Equal Pay Act 1970.

I am pleased that the hon. Lady tabled new clause 33, which is identical to the Liberal Democrat new clause 3 other than in respect of the numbers for the mandatory pay audit to kick in-100 for us, as opposed to 21. We based our figure of 100 on the pre-evidence submissions-by the Women's Commission, I believe. We view 100 as providing a reasonable level at which companies could operate without enormous expense. Quite frankly, we do not believe that the expense will be enormous at all, although the hon. Member for Weston-super-Mare seems to think that it is prohibitive.

It was clear to me in Committee that there was a great deal of support among both Labour and Liberal Democrat Members for mandatory pay audits. New clause 3 revisits the issue, and I shall be seeking to test the will of the House in relation to it. Mandatory pay audits are important in that they expose overall patterns of pay-although not individual salaries-to public scrutiny. The new clause would ensure that, at last, pay discrimination had nowhere to hide.

Where we differ with the Government is on the question of whether audits should be voluntary or mandatory. Opponents of equal pay measures often argue that there can be no discrimination in the marketplace because that is the point of a market: firms that discriminate will be worse off. However, when an opportunity was provided to strengthen market pressures by ensuring that pay scales were disclosed-to give the market more information, which is what free-market theorists tells us that it needs-where were those people? They backed off as fast as they could, making themselves scarce.

Mandatory pay audits are supported by Unison and the Fawcett Society. The problem with the Government's proposal is that it only suggests that information be published voluntarily until at least the year 2013. As has already been pointed out, the Equal Pay Act was passed 39 years ago, but according to the latest figures that I have from the Office for National Statistics, women are still paid 17 per cent. less than men.

We should bear in mind that the Equal Pay Act was sparked by the gender pay gap. For every pound that men were paid at Ford's Dagenham car plant, women earned only 85p. On 7 June 1968 the women went on strike, but it was only when they were joined by the women and the men at the Ford's Liverpool plant that the company caved in and the Equal Pay Act was spawned. The point that I am making is that it takes both sexes to make the change.

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Photo of Philip Davies Philip Davies Conservative, Shipley 1:30 pm, 2nd December 2009

The hon. Lady is making her case powerfully, as she always does. She said that she was concerned about the gender pay gap. According to the Office for National Statistics, although among full-time workers women are paid less than men, among part-time workers they are paid more than men. Is the hon. Lady as concerned about the fact that men are paid less than women in part-time work as she is about the fact that women are paid less than men in full-time work, or is she bothered about only one side of the equation?

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Then of course I am equally concerned. I am concerned about all discrimination. However, those are not the statistics that I have.

The problem is that a law that was intended, in the best possible way, to change women's prospects for ever has not been effective. It is extraordinary to note that that is the case at both ends of the market. The Equality and Human Rights Commission has done a great deal of work in studying the pay gap in the financial sector. Admittedly, those in that sector probably receive far less sympathy from Members than those in the low-paid sector.

Last year, the highest-paid female director of a company in the FTSE 100 took home £3.8 million. That figure, however, is dwarfed by the amount received by the highest-paid man, who took home a disgusting-if the House will excuse the word-£36.8 million, almost 10 times as much. Lest Members are in any doubt, I should make clear that I think such pay levels are insane, but the point is that from the highest earners to the lowest, women get a raw deal. It is as tragic as it is shameful that such gaps remain nearly 40 years after the passing of the Equal Pay Act.

Apart from the fact that the Government's proposals for voluntary publication applied to firms with more than 250 employees, what was made clear in Committee was that they were working with the CBI, the trade unions and the Equality and Human Rights Commission to establish a single figure, or a small number of figures, according to which it could be judged from year to year whether a firm was making progress in reducing a gender pay gap. I do not know the magic number, or metric, that they agreed to adopt. I had hoped to have that information before the debate, but I do not have it, so I hope that the Solicitor-General will be able to tell us more. In any event, however, if it has been decided that that is how to monitor companies' progress in closing the pay gap, I consider the decision misguided, because it will not deliver real change.

I can see the attraction, in terms of monitoring, of establishing a single figure or small number of figures according to which a company could be judged from year to year. The magic figure, or figures, might help the Equality and Human Rights Commission, if that is the body that will have to judge whether a company is closing the gap, but it will not do what the Liberal Democrats consider to be one of the most important things that disclosure can do. It will not put power into the hands of individuals by enabling them to discover whether they are being discriminated against.

If the company for which a person works publishes its pay scales, the result-apart from public opprobrium-will be that that individual can establish whether he or she is being subjected to discrimination, and can then take his or her case to a tribunal. Someone who does not know whether he or she is being discriminated against will not have that power. Unfortunately, although the Government's proposed measure will help by allowing the monitoring commission to check on the overall pattern, it will not empower the individual.

As was pointed out by the hon. Member for North Ayrshire and Arran, an important aspect of mandatory pay auditing is that it puts a value on the different kinds of job held by men and women. Rather than proposing a measure that is good but not good enough, my colleagues and I are suggesting that firms that are reasonably sized or larger-100 employees seems an appropriate cut-off point-should be subject to mandatory auditing so that women, and indeed men, can see for themselves whether they are being discriminated against, and can make a claim if necessary. We as Members of Parliament should understand the power of transparency when it comes to publication. It has a very salutary effect.

New clause 4 concerns representative actions. Currently, if I believed that I was being discriminated against in terms of pay, I could take my claim to an employment tribunal. As I have already said, the ability to see for themselves whether they are being discriminated against will put power into individuals' hands. However, an individual has to be quite brave and assertive to proceed with a claim, and the resources for tribunals are so inadequate that there is currently a backlog of cases. Women are waiting and waiting and waiting. According to evidence provided by the Fawcett Society, thousands of women are waiting for justice, and some have died while waiting.

The aim of representative action is to speed up justice, to take the pressure off individuals, and to protect the system from breakdown and expense. Individuals could be represented by trade unions or, indeed, by the Equality and Human Rights Commission, which ought to be able to act on behalf of a group of people who find themselves in roughly the same position and bringing the same kind of action.

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Photo of John Mason John Mason Spokesperson (Work and Pensions)

Does the hon. Lady agree that such a measure could have helped to solve local authority pay problems? It has taken many years for women doing jobs equivalent to those of men in local authorities in, I think, both Scotland and England and Wales to secure equal pay.

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Photo of Philip Davies Philip Davies Conservative, Shipley

I admire the sense of humour that the hon. Lady has shown in asking the Equality and Human Rights Commission to take up cases of this kind. The commission itself pays men more than women, white people more than members of ethnic minorities and non-disabled people more than disabled people, and its performance this year in respect of the last two categories has been worse than its performance last year. Is it not ludicrous that an organisation that cannot even do things properly itself should take up such cases-or does the hon. Lady expect it to take up cases against itself?

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Well, the unions could help the Equality and Human Rights Commission out of its current difficulties. It does not matter which organisation is failing; where any organisation is failing, including the Equality and Human Rights Commission, it should be brought to book. The answer to this problem is simple: representative actions should be allowed, so that one action can cover and settle many others. [Interruption.] Yes, I suppose people could join a union.

In respect of an amendment I had tabled, what happened in Committee was interesting. When a similar one was tabled by a Labour Back Bencher, the Solicitor-General's manner and attitude softened. She is always delightful and accommodating of course, but she said that the Government hoped to be able to respond early in the autumn following the conclusion of some work that was being done by the Ministry of Justice on whether representative actions should come into play in tribunals. She also said that if they could not do so in time for Report stage in this House, they would seek to introduce such provision when the Bill was being considered in the other place. I therefore hope that the Solicitor-General will be able to inform us that progress has been made on this issue, and that the Government will either support our amendment or are committed to its inclusion in the Lords.

The third of the series of issues to do with women's pay is very serious. New clause 5 is about the hypothetical comparator-that is a bit of a mouthful, but, after three stages of the Bill, I can now say it fairly easily. The provision is intended to enhance a woman's ability to bring a successful case. At present, when a woman pursues an unequal pay case, she is legally required to provide a real comparator in respect of her salary. If she wants to prove sex discrimination in pay, she has to be able to give a concrete example of a man in a comparable job being paid more.

Often, however, that comparator simply does not exist. Many people do jobs where there is no one else, and especially no one of the opposite gender, in a comparable role. Such comparisons can therefore be difficult to provide. Furthermore, a higher bar is set for proving sex discrimination in pay differentials than for other forms of discrimination. There is no requirement to provide a real comparator in race or disability cases. In many other countries, a hypothetical comparator is allowed, and the TUC, the Fawcett Society and the Women's National Commission say that the legal hurdle has proved to be a major obstacle where a real comparator does not exist, such as for areas of employment where the work force are almost entirely female.

We know that women's work is often undervalued and underpaid-that is the case for cleaners, hairdressers, carers, dinner ladies and many others-but it can be impossible to prove that, because it is impossible to provide a real comparator. Our amendment follows the lead of many other countries that allow a hypothetical comparator. I do not understand why the Government are resisting this proposal. It simply offers the same protection from discrimination for this strand of inequality as for others; it would set the bar for women fighting against pay discrimination at the same height as the bar for those fighting other forms of inequality.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

The situation is even more extraordinary than that, because even for other aspects of sex discrimination-sex discrimination that does not involve pay-there is no need for a real comparator.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thank my hon. Friend for that helpful intervention. One can never learn enough facts that can be used to rally to the cause.

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Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

Can the hon. Lady explain how we would pick a hypothetical comparator without assuming what we were trying to prove?

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

We would do that in the same way as we would do it for any other purpose: we would evaluate it, audit it and make an assumption about it. The hypothetical question would be: what if a man were to do this job?

New clause 6 addresses defence of the material factor. Although it is important, I shall discuss it only very briefly, as it is about a legal and highly technical point on which we do not seek to divide the House. The new clause would prevent an employer from using a spurious reason to justify discrimination and thereby avoid the obligations under the Bill.

Finally, I wish to point out that we will be supporting a few new clauses and amendments tabled by Labour Back Benchers, such as that on mariners. We think that abolishing the exemption in respect of the minimum wage is particularly important. We wish to show our support for that. We cannot understand how discriminating by having two different levels of minimum wage can be right. Why will the Bill not change that? We will support that Labour Back-Bench amendment. [Interruption.] Philip Davies asks from the Tory Back Benches whether we will support any of his amendments; I have to tell him that we will not.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 1:45 pm, 2nd December 2009

This legislation has the potential to be a landmark Bill for the Government, and I welcome it overall. As an aside, however, may I say that because we have only a little over five hours to debate all the amendments, we will not have sufficient time to address many of them? Indeed, we may deal with less than half of them. That is surprising, because tomorrow in this House there will be a debate on European affairs with no Division, and the next day the House is not even sitting. I therefore wish to put on the record my concern about the management of this business. I shall address both the amendments standing in my name and some that I support standing in the name of my colleagues. Bearing in mind my concerns about time, I shall be as brief as possible.

New clause 24 would introduce statutory recognition for equality representatives. When we introduced other employment legislation-particularly on health and safety, but also on learning within the work setting-we tried to ensure that the representatives of the work force were fully engaged in the implementation of that legislation. Such legislation has been generally supported in the House. There have been debates recently about health and safety, but I think we have got beyond most disputes with regard to health and safety in the workplace. There is broad support in all parts of the House for the idea that on key issues such as health and safety and learning in employment, and also, now, equality issues, it is useful for representation from the work force to be involved in the implementation of the policy itself. In order to do that properly, we need to ensure that these representatives are effective and give them statutory recognition that enables them to have time off and the authority to meet employers to resolve matters on behalf of their work force. This amendment simply seeks to put equality reps, which already exist in many areas of the work force, on the same statutory footing as health and safety representatives.

One argument in favour of this Bill that is supported on both sides of the House is that greater equality in employment matters increases the efficiency of organisations. There is the potential for the companies and agencies people work for to become more effective as a result of being more equal, and therefore more representative of the community overall. I accept that some people may say there are issues to do with the cost of allowing equality reps to have time off for training and so forth, but let me offer the example of what has happened in respect of health and safety. Where health and safety reps have been effective, they have saved the employer money and increased the efficiency of the company because it has been able to avoid litigious disputes on certain issues. That will also be true of equality reps. They will become trained in equality matters, and as a result they will be able to advise both their fellow workers and employers in the implementation of the equality legislation that we shall enact over the coming months. They will be able to assist the company to become more efficient and to avoid lengthy employment tribunals and other forms of legal action. As a result, they will avoid that cost burden in the future.

This has been generally recognised, even by employers. I have seen one survey showing that 70 per cent. of the employers asked about the role of equality representation were supportive of the work that could be done, feeling that there should be at least partial, and perhaps considerable, involvement of trade union reps in the implementation of these polices, and that such involvement would be helpful to them. As I said, there has been widespread support for this approach elsewhere. In 2006 the Women and Work Commission particularly emphasised how effective equality reps could be, and the piloting work done since then as a result of the support that the Government have given through the trade union modernisation fund has demonstrated their effectiveness in practice.

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Photo of David Drew David Drew Labour, Stroud

Does my hon. Friend accept that one of the most acute roles that equality reps can play is with regard to people with disabilities? I am thinking in particular of people who are coming back into work having had a mental health problem and who need friends to help bring them back into the workplace in an appropriate manner; as constituency MPs, we are all aware of examples of that being done very badly. If proper training is provided, this key role will help the Government, because it is part of their agenda.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

In an informal way, that is what is happening on the ground. John Penrose made the point that some equality issues can be best tackled through a mentoring process, whereby fellow workers give the support. However, we need to ensure that there is some authority to that, which is why I wish to put equality reps on a statutory footing. That will increase the impact and effectiveness of this legislation.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

A little later we will deal with a group of provisions dealing with discrimination on the basis of caste and descent. All the reports on that indicate that a lot of discrimination goes on, but the victims are very frightened and are unable to turn to anybody for help or advice because of the whole atmosphere and community in which they are at the time. Does my hon. Friend agree that properly trained and resourced equality reps could be extremely helpful in at least beginning to address this terrible problem?

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

The worst thing that can happen is that we enact this legislation without making it effective and then rely on too many informal arrangements that allow the untrained barrack room lawyers to become involved, which in turn places a burden not only on the other members of the work force, but on the company or the agency employing the members of staff. That is why we must put all this on a professional and statutory footing. The recognition of equality reps should not be a contentious matter. As I said before, this has been done in other areas of employment legislation, and I hope that the Government will accept this new clause.

Secondly, I wish to dwell for a short while on new clause 25, relating to the minimum wage for seafarers, tabled by my hon. Friend Gwyn Prosser; I hope that he will permit me to do so. He will speak more eloquently than I, but I wish to discuss this matter because it has become a personal crusade for a number of Members over the years. It is eight years since I first raised it in the House and I was hoping that today would be the day when we would resolve it once and for all.

I chair the National Union of Rail, Maritime and Transport Workers parliamentary group, of which my hon. Friend is a member, as is my hon. Friend Ms Clark-she, too, has taken up this issue. I wish to pay tribute to the RMT, which has valiantly pursued this campaign over the years. I shall name the officers involved because I want them to receive recognition for standing up for some of the most vulnerable workers in our work force. Thus I pay tribute to the RMT general secretary, Bob Crow, and to Steve Yandell, Steve Todd, James Croy and Malcolm Dunning, all of whom have worked alongside hon. Members from all parts of the House to try to get this matter resolved, and have given advice to the Government on how that should be done.

This process started as a result of an exposé of the low rates of pay of certain workers on British-flagged ships. A number of years ago we emphasised those rates of pay, particularly those of Filipino workers, but I must say to hon. Members that this still goes on; it has not gone away. On the rates of pay for Filipino able seamen on P&O ferries between Liverpool and Dublin-we are not talking about seafarers who are crossing the world, but about seafarers operating on ferries close to us-a Filipino on the Norbay receives £313 a month and a Filipino on the Norbank receives £328 a month. Given that the UK minimum wage is about £1,000, those are poverty wages for people working less than 200 miles away from here, on a UK-flagged ship.

Nearly eight years ago we made proposals in negotiation in which we sought to ensure that at least those people would be paid the minimum wage. We took the matter to the Deregulation and Regulatory Reform Committee-I was allowed to speak, even though I was not a member-and we were given the assurance that they would be paid a minimum wage within British waters. We came back to this House and celebrated a success, only to be told by the Government that this would apply not to "territorial waters", but to "internal waters": that means a boat that is moored, because the term has extremely limited coverage. I used to tell jokes about the Norfolk broads, where I sail, but this is no longer a jocular matter; it is a serious matter because it has gone on for so long.

We then went back into negotiations with the Government to discuss how we could overcome this situation. We were told that the reason why the Government could not move beyond that position was because of various international laws, so we took our own legal advice. We supplied the Government with that advice-on two occasions they were supplied with separate forms of advice-in which it had been confirmed to us that it is extremely doubtful whether their hand is restricted in this way by international laws of the sea. Our latest advice, from Mr. Jonathan Chambers of Quadrant Chambers, clearly states:

"In my view, the proposed amendment"- the proposal we made previously-

"probably does not interfere with the right of innocent passage protected under section 3 of UNCLOS".

As of yesterday, the Government remain of the view that their legal opinion says that we cannot implement the minimum wage in our territorial waters because of this "interference" with "innocent passage". Even if we cannot resolve this today-if the Government cannot accept the new clause tabled by my hon. Friend the Member for Dover-I must say to them that there must be a way through this. So far they have not been willing or able to share their legal opinion with us. Can we at least share the legal opinions upon which the Government are basing their decision? Perhaps we should hold a seminar-I make this offer-where we get the lawyers together with Ministers and Members of Parliament who are interested in this subject to try to resolve it. I am sure that nobody in this House would want to support a situation whereby people are paid this minimal level of income, on which it is basically impossible to survive. This is poverty pay within the UK jurisdiction.

My hon. Friend the Member for North Ayrshire and Arran has tabled new clause 33 on pay audits, which I wholeheartedly support, and I shall leave it to her to discuss it. As for the difference between the numbers, we simply felt that the numbers would reflect the Government's own attitude on other employment legislation, so we chose 21. Even if we could get the Government to agree to the proposal today, large numbers or workers would still not be included in the overall scheme.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

That is extremely helpful.

I shall now discuss amendment 33, which stands in my name. Ministers have worked extremely hard on this legislation to try to attack harassment. I welcome the part of the Bill that seeks to outlaw harassment at work and tries to place duties on employers to ensure that they deal with the matter. Under the Government's current proposals, clause 38(2) provides that an employer will be liable for harassment by a third party if the third party harasses the worker in the course of their employment-that is excellent-and the employer

"failed to take such steps as would have been reasonably practicable to prevent the third party from doing so."

Again, that is superb. Then, in my view, it undermines the real protection that could be given to employees, because it says that a worker must be

"harassed...on at least two other occasions" before the employer has a duty to act.

That flies in the face of the spirit of the legislation and, I believe, of what the Government originally intended. It means that an employer will be able to send someone out on more than one occasion to a vulnerable situation in which they will be harassed. It flies in the face of the original judgment, if Members can remember, in the Bernard Manning case, where black members of staff were subjected to racial abuse from that comedian when they were placed in such a vulnerable position by their employer.

My amendment seeks to ensure that it does not have to take at least two other occasions before an employer's duty comes into play. The employer should have that duty on all occasions and in that way vulnerable workers will be better protected. The employer will still have a responsibility placed on them, but if they fail to take such steps as would reasonably have been practicable to prevent the third party from behaving in such a way, the legislation would cover them. They would still be protected. They would have to behave reasonably and, of course, if they could not predict that a person would be abused it is not unreasonable that they should not be covered by this clause. To send someone out on a number of occasions on which they are abused, in my view, flies in the face of what the Government originally intended in terms of the responsibilities placed on the employers.

May I discuss amendment 34, tabled by my hon. Friend the Member for Dover, who will also go into it at some length? We have worked so hard on this together, so I want to try to get some clarity about where we are going in terms of the Government's proposals. I would welcome any interventions from Ministers to clarify the process by which they envisage that this next stage will be implemented.

Let me give the background to the amendment. We have worked on this over the past decade, and some hon. Members will remember the debate that we had on the subject more recently. When the Race Relations Act 1968 was implemented 40 years ago, shipping was exempt. We were in a disgraceful position. Discrimination, although it was outlawed on land, could take place on ships. If people did not like the ethnicity of another passenger, they could legitimately refuse under those exemptions to share a cabin. Discrimination took place across the work force.

In 1976, the Government tried to tackle some of those aspects of discrimination in reviewed legislation, but they still left employers' ability to discriminate against seafarers, particularly on wages. As I mentioned earlier, Filipinos are working on poverty wages because of that ability to discriminate. As a result of EU demands for compliance with EC law, the Bill seeks to outlaw all discrimination as regards seafarers and shipping. It also gives the Minister the power to designate who is included within the ambit of outlawing discrimination against seafarers. We sought to ask the Government to publish the regulations by which the Minister will determine the aspects of discrimination against seafarers that will be outlawed.

I am grateful to the Under-Secretary of State for Transport, my hon. Friend Paul Clark, because he provided us with a letter on 30 November, which was also laid before the House via the Vote Office and the House of Commons Library and which followed up on a letter of 3 August. He enclosed a copy of the draft regulations, which set out the detail, as I understand it, of those seafarers who will be included in the ambit of the legislation. As far as I can see, it includes seafarers from the EC or the European economic area-the list of countries has been circulated in earlier discussions-and ensures that there is a definition of an employment relationship with this country, so that we have some clarity and certainty for those seafarers who will be included in the legislation to outlaw discrimination.

Let me place on the record what the letter says. It says that the employment provisions of the Bill would apply

"to every seafarer on a UK ship with a port of choice in Great Britain, so long as the seafarer either works at least partly in Great Britain, or is a UK or other EEA national (or has corresponding EC law rights) and has an employment relationship sufficiently linked to Great Britain."-[ Hansard, 30 November 2009; Vol. 501, c. 115WS.]

I would be extremely pleased if we could get some clarity about what

"an employment relationship sufficiently linked to Great Britain" is at some stage. It adds to the confusion about the ambit of the regulations.

The Government have written to the various stakeholders to say that there will be a further consultation on the issue of pay, requesting evidence from industry representatives and the trade unions and evidence-based financial estimates of the likely impact of either outlawing differential pay rates altogether or continuing to allow the payment of differential rates to seafarers, but only where such differential rates would not operate to the disadvantage of nationals of EC or EEA states or to that of seafarers recruited in Great Britain.

That consultation will now take place. We had a consultation, which lasted six months, in 2007. My understanding is that if the Government are convinced that there are evidence-based financial estimates that demonstrate that there should be some continuation of differential pay rates, the regulations will be subject to affirmative resolution after the Bill is enacted. That means, in fact, that if the Bill is enacted on 1 April, for example, and implemented next October, the regulations will be honed down during that period and only then will they come into force. That is almost a year in which people will be subjected to discriminatory pay rates.

May I suggest to the Government that the simplest way of doing this would be for the consultation that is taking place, which Ministers have suggested will be short and sharp, to end early in the new year and for the decisions on the regulations to be made fairly swiftly? Rather than awaiting the enactment of the legislation and the publication of the amendments, the regulations could be enacted through the Bill. When the Bill gained Royal Assent on 1 April, so would the conditions and the import of the regulations. In that way, we could tackle discriminatory pay among some of the poorest workers immediately. That would send out a message about the Government's determination to seek equality in this field, where we have had such inequality for such a long time.

I await the Minister's response on all this and the advice of my hon. Friend the Member for Dover about which issues he will press to a vote. This is such a fundamental issue of principle that I hope we will see some Government movement. I am sure other hon. Members will wish to see that, too.

May I now discuss amendment 24, which I have tabled? It has been raised in the discussions already and is a further amendment on the subject of the minimum wage. I cannot remember on how many occasions I have tried this-it becomes like a hardy perennial. My intention is to try to remove the discrimination against young people in the minimum wage legislation.

I come from a basic trade union background, and I believe that someone should be paid the rate for their job. That rate should be based on the work that they do and the value that they add to the company's work-and therefore their assistance towards its overall profit and future sustainability. A person who is making that contribution should be paid the rate for the job, no matter what age they are. This amendment would remove the ability to discriminate on the basis of age. If there are arguments to be made about the deterrent effect that such a change would have on the employment of young people, we need to see the evidence behind them because it has never been produced. We have never had any quantitative estimation of how many young people would be disbarred from employment as a result of being paid the rate for the job. The argument is the same as the one we had about the basic principle of having a minimum wage. We were told that it would cost jobs and would undermine the profitability of companies, but that has not happened. [ Interruption. ] I am happy to give way if Sammy Wilson wants to say something.

This issue concerns basic principles of justice and equality, and I urge the Government, even at this late stage, to give some indication that, even if they cannot address it in this Bill, we will at least have a proper review about age discrimination against young people. I want to get a real debate going and get some real information about this issue, because it has not been considered satisfactorily by the Low Pay Commission and others, and it has become almost a given. I shall not press the amendment today because it looks as though we will be allowed only a few votes, given the way that time has gone on in this debate, but I say to the Government that I am not going to give up on this, and neither will other Members of the House. We will come back to it again and again until we have tackled this discrimination against young people.

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Photo of Philip Davies Philip Davies Conservative, Shipley 2:00 pm, 2nd December 2009

It is a pleasure to follow John McDonnell. I do not agree with him about many things, but he is a great parliamentarian who always makes his case particularly well.

May I start by thanking Mr. Speaker for his generous allocation of amendments for debate? His selection allows for a broad range of views to be heard, and we should all be grateful for that. I am aware that my views tend to be in a small minority in this place, but I have always believed that for a parliamentary democracy to work, everybody in the country should feel that someone in the House is speaking up for them. My views might have very little support in this place, but there is an argument that they have slightly more support out in the country as a whole. I am very grateful to Mr. Speaker for allowing the amendments in this group, about 20 of which are mine, to be debated.

I want to reiterate the point made by the hon. Member for Hayes and Harlington about the time scale set out for the debate. There are many important issues further down the line that I would like us to debate, so, although I have tabled a large number of the amendments in this group, I shall endeavour to go through them as quickly as possible to allow some of those other important matters to be debated as well. It is a sad state of affairs when hon. Members who want to debate issues that they feel strongly about have to apologise at the start of their speech about not being able to express their views clearly because of the lack of time allowed for debate.

The first amendment in the group that I have tabled is new clause 36, which states simply that the Bill would

"not apply to any employer who has fewer than 250 employees."

When I was framing the amendment, I intended to have a number far smaller than 250, which I thought quite high. I thought perhaps 25 or 50, but I eventually plumped for 250 because clause 75 on the gender pay gap-I shall come back to that clause later because I wish to delete it from the Bill-says that measures on gender pay gap information will not apply to

"an employer who has fewer than 250 employees".

Given that the Government feel that businesses of fewer than 250 employees are so small that they should not have to abide by all these measures, I thought that, in the spirit of co-operation, I would go along with their figures.

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Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Education), Shadow Spokesperson (Treasury) 2:15 pm, 2nd December 2009

I understand the reasoning behind the hon. Gentleman's point, but does he recognise that in a place such as Northern Ireland, where, thankfully, the Bill will not apply, even his amendment would mean that 90 per cent. of all sources of employment would be encompassed? They would be subject to the regulatory aspects of the Bill, which would add considerably to their cost burden.

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Photo of Philip Davies Philip Davies Conservative, Shipley

I am grateful for that helpful intervention about the situation in Northern Ireland, which the hon. Gentleman knows far more about than I do.

I fear that the Government place regulation upon regulation on businesses, whether big or small. The thing in the House that causes me the most despair is the attitude of many Members-particularly, but not exclusively, Labour Members-who start from the premise that every business, however big or small, is simply a licence to print money. They think that if the dead hand of the Government were not involved in every element of policy, every business would automatically do everything it could to be as bad an employer as possible and to stuff its customers at every opportunity. I despair because that shows such a lack of knowledge about how businesses work. In my experience, every successful business has two things in common: it looks after its customers and it looks after its colleagues at work. Similarly, every failed business has two things in common: it does not look after its customers and it does not look after its colleagues at work. Much of the nanny state regulation is not necessary because every good business and every business that is likely to succeed knows perfectly well that in order to succeed it needs to look after the people who work for it and the people who pay the bills as customers. I can say in all honesty that, of those two categories, the most important group to look after is the employees because they look after the customers.

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Photo of John Mason John Mason Spokesperson (Work and Pensions)

Does the hon. Gentleman accept that the evidence, historically, is that what he says is not the case? Before the minimum wage came in, employers were paying, in my memory, ridiculous amounts such as £1 an hour to security workers. The gap between those at the bottom and those at the top is getting wider, so he must surely accept that there is no evidence for his argument.

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Photo of Philip Davies Philip Davies Conservative, Shipley

There is plenty of evidence for my argument. I am quite happy to debate the merits or otherwise of the minimum wage with the hon. Gentleman, but given the time that we have available and the number of things that we want to get through, now might not be the most appropriate time to do so. I shall seek him out in the Tea Room and we can pursue this matter further at a later date.

The point that I seek to get across with this new clause is that no big business started out as a big business; all big businesses started out as small businesses. I am greatly worried that many of our future potential big businesses are being strangled at birth by the Government, who place upon them burden after burden that might be easy for big companies to adopt but that are much more difficult for small businesses to adopt. The end result is not that such businesses employ men and women equally, but that they employ nobody because they are put out of business by excessive regulation.

Let me cite as an example my former employer, Asda, which had more than 140,000 employees by the time I left. Regulations regarding employment and other matters are in many respects meat and drink to an organisation such as Asda, which employs people to deal with and implement them. When so many people work in one place, it is easy to accommodate someone who needs flexible working. I do not worry about big businesses like Asda or Tesco-and my hon. Friend John Penrose mentioned the latter earlier-because, good employers though they are, they are big enough look after themselves to a large extent. My worry about this new clause has to do with what we are doing to help smaller businesses that are just starting out and taking a big risk. We want to encourage them to employ people, but I fear that implementing the provisions of this Bill in full and as they stand will cause more and more employers to do as much as they can not to take on employees. That is because they will be petrified of all the legal implications, requirements, tribunals and so on. It seems perverse to introduce legislation that will do more to deter people from employing staff than it will to encourage them to do so.

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Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

As a successor to Enoch Powell as Member of Parliament for Wolverhampton, South-West, I ask the hon. Gentleman whether he is really content that new clause 36 would mean that a company with 249 employees would be permitted to discriminate racially against those employees? That would be the effect of the new clause, and I find it outrageous.

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Photo of Philip Davies Philip Davies Conservative, Shipley

The hon. Gentleman makes a fair point, which I appreciate, but I think he will accept that that is not the purpose of my new clause. As I said when I started, any successful business in this day and age will do what the Bill proposes anyway. Some of the things that went on in the past were completely unacceptable, and no one would argue otherwise. However, we are in a totally different place these days, and many of the measures in the Bill are superfluous to requirements.

As ever, we need to strike the right balance. The purpose of the Bill is to ensure that no employer discriminates against a person based on mindless racism: equally, however, I hope that Rob Marris would not want many small businesses to fail and close down as a result of some of the things that might be unintended consequences of this Bill.

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Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

The whole House shares the hon. Gentleman's concern that small businesses should not be overburdened by regulation as, in their totality, they are major employers. However, when he says that racial discrimination in employment is in some sense a thing of the past, is he certain that it no longer happens in places of work? I think that the good people of Yorkshire would be surprised to hear that.

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Photo of Philip Davies Philip Davies Conservative, Shipley

It may or may not still happen. The hon. Lady may have different experiences from me, and I shall not gainsay her opinion. However, the purpose of the new clause is to flag up the fact that, if this House continues to pile regulation after regulation on to businesses of whatever size, the outcome will not be more fair employment but less employment across the board, for everybody. I absolutely accept her belief in racial equality and applaud her work on that over many years, but my fear is that with the Bill's emphasis on positive action and so on, we will end up with discrimination working in reverse.

Many hon. Members seem to think that because ethnic minorities and women have been discriminated against in the past, the solution must be to discriminate in favour of them in the future. I do not believe that that is the solution to the problem of discrimination: I believe that we must solve the problem of discrimination by ending discrimination, as I shall explain.

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Photo of Philip Davies Philip Davies Conservative, Shipley

I hope that the hon. Gentleman will forgive me, but no. I am sure he will want to intervene about other things in my speech, and I shall try to be as generous as possible, but I am mindful of the time and the other amendments that need to be debated.

That brings me on nicely to my new clause 38, which would make it

"unlawful for a public authority to promote or engage in any form of affirmative or positive action, as defined in subsection (4), when recruiting employees and making appointments."

Given what Ms Abbott has just said, I presume that she will support this new clause. I know that she believes passionately in equality, and racial equality, and that all jobs should be given on merit, irrespective of race, gender or sexuality. That is why I presume that she will be happy to support new clause 38, which in effect would enshrine that requirement in law. It would make it unlawful to look at people in terms of their colour, sexuality or gender. That would no longer be tolerated or allowed.

Anyone who truly believes in equality must surely believe that people should be given jobs on merit, irrespective of their colour, gender, disability, nationality or religious belief. That is what my new clause 38 would achieve, and I should be interested to know how anyone in the House could have a problem with giving people jobs on merit.

The only people who are racist or sexist or discriminatory in any of the senses that I have set out are those who see everything in terms of race or gender. Most people in this country do not see things in those terms-I certainly do not. When I was recruiting people, I could not care less about their background, race or gender; I just wanted the best person for the job, and my new clause would enshrine in law the requirement that people are given jobs on merit.

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Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Education), Shadow Spokesperson (Treasury)

The hon. Gentleman will know that positive discrimination of the sort that he mentions has been exercised-and on a huge scale-in Northern Ireland, where there is 50:50 recruitment into the police force. His proposal would safeguard people from discrimination, but sometimes people who get jobs feel that they have got them not on merit but because of positive discrimination. Does he agree that his new clause would protect them from that? Indeed, many Catholic recruits to the Police Service of Northern Ireland have said that they would rather have been chosen purely on merit and not as a result of positive discrimination based on law.

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Photo of Philip Davies Philip Davies Conservative, Shipley

The hon. Gentleman is absolutely right. He makes a powerful point, which is that an approach based on positive discrimination and positive action can build up resentment among other parts of the population that would not exist otherwise. The upshot is that that approach, rather than doing a great deal for race relations and helping equality for women, instead does the exact opposite because people no longer feel that jobs are given on merit. They feel that other people are getting a fairer lick of the sauce bottle, so they build up a resentment that otherwise would never exist.

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Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

I listened with interest to the concern expressed on the other side of the House for people with jobs or senior positions who might agonise in the dark watches of the night about whether they really got their posts on merit. Could it be that the hon. Gentleman is thinking about all the white, male old Etonians on the Tory Front Bench?

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Photo of Philip Davies Philip Davies Conservative, Shipley

I am sorry that I gave way to the hon. Lady. She usually makes a helpful and positive contribution to debates in the House, but I am afraid that she has let herself down on this occasion.

The serious point that I wish to reiterate is that, if we in this House want equality legislation, we should enshrine it in law that all jobs and positions must be given on merit, irrespective of race, gender, sexual orientation or nationality. All that should be totally and utterly irrelevant: in my mind, only a Bill that does that can truly be called an equality Bill.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My hon. Friend has referred to disability, but to give people who have a disability an equal chance to get a job on merit it is sometimes necessary for employers to take steps and make reasonable adjustments. In that way, a person with a disability can compete on a level playing field and get a job fairly. The problem with the way that my hon. Friend has framed his amendments and new clauses is that an employer who took steps to make those reasonable adjustments could well fall foul of the discrimination provisions. That is something that he needs to think about.

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Photo of Philip Davies Philip Davies Conservative, Shipley

I do not agree with my hon. Friend, which is a rare thing for me to say, because nothing in my new clause would stop anyone wanting to do those things if they so wished and if that helped them to recruit the best person for the job on merit. My new clause would encourage someone to go to those lengths, to recruit the best person for the job-that is certainly its purpose-and I am very surprised that any hon. Member is opposed to giving people jobs on merit, but that is a reflection of the way that political correctness has taken over the House, as well as many other parts of the country.

I will move on to some of the other amendments, and I will try to spend a bit less time on some of them. My amendments 60 to 64 cover the ground about work of equal value and touch upon where the Solicitor-General started the debate about favouring minority groups when two people of equal ability apply for a job. My amendments would remove the provisions that allow for that. For me, this is absolute fantasy world. It is all very good in an academic university lecture theatre to talk about what will happen when two identical people apply for a job and about two people who do jobs of equal value, but I ask hon. Members where on earth those situations ever exist in the real world. I have recruited many people in my time. I have never yet even remotely come across a case where two people have exactly the same ability and are exactly the same. Unless the Government envisage lots of twins applying for the same jobs right across the country, this is a completely meaningless, pointless and academic argument. [ Interruption. ] Does the hon. and learned Lady want to have a bash, or is she just chuntering?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 2:30 pm, 2nd December 2009

No; I was talking to John Penrose and saying that the hon. Gentleman's comments apparently support the stand that we take: people look not for a pair of twins with identical qualifications but for people in a category who are all equally suitable, and there is then some practical effect. So we are glad for the support.

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Photo of Philip Davies Philip Davies Conservative, Shipley

The hon. and learned Lady misses my point: it is the Bill that introduces such nonsense into the debate. Such circumstances never exist, and my fear lies in my cynicism about the Government's real motive. I suspect that they know full well that those cases never exist and that such nonsense sounds good in a university lecture theatre but that it will never happen. They want to introduce a chilling effect into employment. The outcome that they seek is for employers to want to avoid at all costs any possibility of being taken to an employment tribunal or having legal action taken against them. So they do not envisage two people of equal ability applying. For example, if a man is better qualified than a woman but perhaps by not a great deal, they want the employer to take on not the man but the woman. Such legislation has a chilling effect to try to stop employers doing the opposite, but those cases never exist; it is the kind of discussion that we tend to get among primary school children in the playground. Indeed, my six-year-old son has probably gone past that kind of debate. I am very disappointed that the Government want to enshrine such pointless nonsense in an Act of Parliament.

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Photo of John Mason John Mason Spokesperson (Work and Pensions)

I thank the hon. Gentleman for giving way again, and I am happy to meet him in the Tea Room to talk about any of these issues. Does he accept that, in fact, such cases do not always involve two people who are equal and one of them is preferred to the other, but a woman, or perhaps a disabled person, who is better qualified and better able than the white male, or whoever, and who does not get the job? If we look at society, we see that there is clear discrimination, and we need to do something about it.

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Photo of Philip Davies Philip Davies Conservative, Shipley

Indeed, and I urge the hon. Gentleman to support new clause 38, which would ensure that people were selected on merit. That would do the job nicely. The incidents that I am talking about have nothing to do with that problem. I am talking about identifying people who are absolutely identical-they do not exist-and jobs that are deemed to be of equal worth.

Who determines which jobs in a business are of equal worth? Surely, the only person who can determine whether or not two different jobs in a company have equal worth is the company itself. How on earth can the Government decide for an employer which jobs in a company are of equal worth? How can a tribunal or judge do so? The only people who can do so are the employers themselves, because of the difference that the jobs make to their companies. All these provisions are absolute nonsense. Either they are completely pointless, or they will have a terrible effect, so I would rather that they were not in the Bill at all. That is why my amendments would delete them.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The hon. Gentleman has gone on about the best person for the job, but does he agree with me-probably not-that the definition of what is best might make a difference to the employer? The word "best" has traditionally covered the skills that are male, but what is actually best might be completely different. Does he therefore agree that, if people are equally qualified, considering what is best could equalise the work force?

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Photo of Philip Davies Philip Davies Conservative, Shipley

The hon. Lady introduces into the debate the fact that what is best is a subjective matter. It therefore seems even more pointless to try to pass all these things to a tribunal and a court for a decision, because they are obviously subjective. Who is to say that her view is more relevant than someone else's or that the tribunal chairman's view is more relevant than the employer's. They are, by definition, subjective. So rather than my agreeing with her, she appears to be agreeing with me.

Amendments 65, 66 and 67 deal with an interesting part of the Bill. In effect, the Government are saying on this equal jobs thing that if A can demonstrate that they are being treated less favourably than B, the terms for A must be changed to match B's terms. It is an interesting theory that, in effect, everything must be equalised upwards. If the Government and Labour Members are absolutely committed to equality, they should not care whether the terms are equalised upwards or downwards, so long as they are equal. So why on earth is it necessary to equalise upwards? Why will the Government not allow the terms to be equalised downwards? If we are talking about an equality Bill, that should be neither one thing nor the other to the Government.

Some recent disputes with local authorities provide some evidence of why such an equalising measure is not in the Bill. Leeds council is a prime example, where the binmen have been on strike over pay for about 11 or 12 weeks. The reason why everyone is up in arms in certain local authorities-Sheffield is another one that suffered from this-is that, because of the single status thing, everyone in jobs with a predominance of certain genders had to be paid equally. That ended up with lots of people being paid less, so they all went on strike.

It strikes me that, out there in the country, there is no great demand for equality; people just want to have their terms and conditions protected. I want the Government to have the courage of their convictions. If they believe that equality is the be-all and end-all of any legislation, let them put it in the Bill that people's conditions can be equalised downwards as well as upwards. I suspect that their commitment to equality will probably not go that far.

I will rush through amendments 68 to 70, because they are minor matters. Amendment 68 would leave out clause 66(3), which states that

"the long-term objective of reducing inequality between men's and women's terms of work is always to be regarded as a legitimate aim."

I do not see that as something that should always be regarded as a legitimate aim, because it might inadvertently allow another practice to take place that people might find unacceptable. I do not necessarily see that as a legitimate aim, and I do not think Lynne Featherstone does either, if she is honest about it. She did not accept that for part-time work, women are paid a higher hourly rate than men, but that is the case, as shown by figures from the Office for National Statistics.

I know that the Government fiddle the figures from the Office for National Statistics and get into terrible trouble for so doing, but the facts are that the average pay for a woman part-time worker is £7.51 per hour and the corresponding average pay for a man is £7.26. I do not think that that is illegitimate, and there may be all sorts of reasons for it. A high proportion of the women who tend to do part-time work may have had a career beforehand and choose, because they have had a family or it suits their circumstances best, to go into work in which they have a lot of experience and expertise behind them. The men who tend to do part-time work are much younger-people who leave university or school and therefore have less experience. It is inevitable that part-time women workers will be paid more, on average, than part-time men workers. I do not see that as a bad thing. It reflects what the real world is like out there. We do not need clauses to stop that practice. That is wholly unnecessary.

Amendment 69 deals with maternity pay and the requirement that women's pay when they return to work should be what it would have been if they had not been away at all. How on earth can anybody know what somebody would have been paid if they had not taken nine months or a year off? They might have got a promotion, if they had been there to apply for it. That is totally unenforceable, and I am not sure that it is particularly desirable.

Amendment 70 relates to the discussions on pay among employees. The Bill would oblige employers to disclose what other people were paid. I do not know how many hon. Members in the Chamber have worked in big companies, or in small companies, for that matter. I can think of nothing more likely to cause friction in the workplace than everybody telling each other how much they are paid. People may be paid differently for all sorts of reasons. It may be nothing to do with their race, gender, sexuality or whatever. There may be other reasons why people are paid more or less. All I can say to the Government is that if they introduce that clause, there will be more fighting going on in workplaces around the country than we have ever seen, and the number of days on strike will probably go up massively.

Clause 75 deals with the gender pay gap. As I said, I do not see it as a problem that part-time women workers are paid, on average, more than their male counterparts. I do not see why Members see that as a problem and I look forward to hearing from the Minister why she is wholly opposed to part-time women workers earning, on average, more than part-time men workers.

The question arises whether it will be possible to implement these measures. The Equality and Human Rights Commission exists to lecture everybody else, as the Minister said, and if she has her way, to take recalcitrant employers to court over the gender pay gap and other such matters. I shall be charitable. I do not think the Equality and Human Rights Commission is a particularly nasty body, or that it sets out to discriminate against ethnic minorities, women or disabled people. Perhaps it does. If someone holds that view, let them stand up and explain why they believe that.

However, even the Equality and Human Rights Commission pays its male staff, on average, more than its female staff. It pays its white employees more than their ethnic minority colleagues, and its non-disabled staff more than its staff with disabilities. If even the EHRC cannot meet the Government's aims, how can they expect it to go round the country lecturing everybody else on how to do it? It is utter nonsense.

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Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Education), Shadow Spokesperson (Treasury) 2:45 pm, 2nd December 2009

The hon. Gentleman makes an interesting point. That seems to be a trait among the equality industry right across the United Kingdom. Is he aware, for example, that in Northern Ireland the Equality Commission, which has come down very hard on employers where there is an imbalance between those who come from the Catholic community and those who come from the Protestant community, has gross inequality in its employment practices, employing many more Catholics than Protestants, and justifying that as well?

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Photo of Philip Davies Philip Davies Conservative, Shipley

I take on board the hon. Gentleman's point. The information about the Equality and Human Rights Commission is published. Every year I ask what the pay gap is. When I asked the question recently, it emerged that on race and on disability the pay gap at the EHRC is considerably worse this year than it was last year, so it is not as though the EHRC is getting there gradually-it is going backwards. This is public information. Publishing the information does not make everything hunky-dory. I fear that much of the Bill is motherhood and apple pie, enabling people to feel good about themselves, but it is a fantasy world, not the real world.

Amendments 75 to 78 are minor amendments. Amendment 75 would exempt the armed forces from the provisions of certain parts of the Bill. The purpose of amendments 76 and 77 is to question why the Government are so keen to see proceedings move from courts to tribunals. My fear is that the Government feel that it will be easier for people to take discrimination cases to tribunals than to courts. They are trying to throw as many cases as possible before tribunals to get the outcome that they want.

Amendment 93 covers positive action. I have spoken at length about why I believe positive discrimination and positive action are bad. The final five amendments of mine in the present group relate initially to pensions. Amendment 127 refers to schedule 9, which contains lists of categories-religious group exemptions, it seems to me-to which certain provisions would not apply. One such case envisages a requirement not to be married in order to qualify for a particular job. My amendment adds to that a requirement to be married. If, in some cases, it is fine that not being married is a requirement, by definition it should be fine that in some cases there is a requirement to be married.

My last two amendments are important. Many people in the country are concerned about age discrimination. The hon. Member for Hornsey and Wood Green said at the outset that she did not agree with any of my amendments. I look forward to her telling the House why she is against these amendments. The Bill allows employers to force people to retire at the age of 65. My amendment would delete that requirement and would not allow employers to retire people forcibly when they reach the age of 65.

I am interested not only in the hon. Lady's position on this, but in the Minister's position. If she truly believes in equality, why does she think it is fine that somebody is doing a perfectly good job aged 64 and 364 days, but the next day, when that person is doing an equally good job, the employer should get rid of them by forcing them to retire?

I should have thought that age discrimination was an important topic to cover, so, if the Bill is about equality and about trying to get rid of different forms of discrimination, why does the Solicitor-General think it fine to force people to retire aged 65? They are presumably just as good at their job on the day that they turn 65 as they were on the day before that. That is where the Government get into problems with such Bills. They have a hierarchy of equality: some protected characteristics, as they call them, are more important than others. That flies in the face of what an equality Bill should be about, so, if the Government believe in equality, let them bring forward a Bill that delivers on equality.

I have a problem with the Bill before us, and my amendments are important because, through them, I am trying to deliver a Bill that offers true equality, whereby people are given jobs on merit and are not just fired for the sake of their age. If the Government want to show that they truly believe in equality, they will incorporate those proposals.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The hon. Gentleman has caught me out. That is one of his amendments with which I do, sadly, agree. Age discrimination, which we discussed at other stages of the Bill, is not appropriate, and the existing provision is an oddity in the Bill.

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Photo of Philip Davies Philip Davies Conservative, Shipley

A rare triumph! I have actually got a Member-a Liberal Democrat Member, I might add-to agree with me on a matter relating to the Equality Bill. I can leave this Chamber a happy man. Whatever else happens throughout the course of today, I shall be able to go to bed tonight, lie there, smile and think, "I've actually had a rare triumph." It is a red-letter day for me, and on that basis I will quit while I am ahead.

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Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

I shall speak to new clause 25 and amendment 34 in my name. Both are proposed changes that seek to remove the terrible discrimination against non-UK seamen sailing on British ships between British ports.

New clause 25 would apply the national minimum wage to seafarers who are either ordinarily resident in the UK and sailing on British-registered ships, or sailing on ships that trade solely between UK ports or offshore installations-a very narrow definition. It could be argued-indeed, it has been in this House and in the other place-that the minimum wage should apply to all seafarers on all UK vessels when they are trading in UK territorial waters. That seems to me, to the National Union of Rail, Maritime and Transport Workers, to Nautilus International, of which I am still a member, and to the TUC to be a very reasonable way of removing the inequalities in current legislation and putting an end to the shameful exploitation of non-UK seafarers on British ships.

Unfortunately, Ministers in both Houses have resisted such reform for a series of reasons. Although I and supporters of the reform do not consider those reasons to be valid, we have none the less taken heed of them and narrowed our new clause substantially. New clause 25 is therefore very narrowly scripted as a means of making some progress, because under current law some ship operators are getting away with murder. We have evidence of pay rates, conditions of service and hours of duty that have been described as "modern-day slavery".

There are countless examples of poverty pay on British ships trading between British ports. My hon. Friend John McDonnell gave two examples, but there are many more. For instance, Streamline, operating from Aberdeen to Lerwick, pays just £314 a month-one third of the national minimum wage equivalent; Varun shipping company, which sails out of Aberdeen and from Peterhead to the offshore oil industry, pays workers as little as £262 a month. Some Filipino seamen are paid just over £2 an hour; Estonian able seamen-qualified able seamen-on the regular Heysham to Belfast service are on just £433 a month; and the list goes on. It is not restricted to a couple of examples; it is wide-ranging and getting worse. Sadly, there are many other shameful examples, and that cannot be right, which is why the unions have been pressing for reform for so long.

The remaining arguments against extending the national minimum wage in the circumstances described in new clause 25 are becoming fewer and entirely predictable. The Chamber of Shipping argues that some operators might flag out of the British flag, but that is the sort of blackmail that big business and employers adopted during the introduction of the minimum wage in the first place. Whenever workers' rights are improved, big business, the CBI and the official Opposition come forward with all sorts of nightmare scenarios for a particular case. We know from the national minimum wage negotiations, and from the fact that we are now 10 years on from them, that none of those dire predictions came true; in fact, most changes went in the opposite direction to those that were forecast.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

Will my hon. Friend remind the House that when the Government became the Administration in 1997, we introduced the tonnage tax to support such companies? Between £80 million to £100 million has been given to them in total, and the quid pro quo was that they would promote British seafaring employment, but that has not occurred.

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Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

My hon. Friend is absolutely right. Since Labour introduced the tonnage tax, the volume of traffic under the British flag has trebled-a massive change. When we introduced the tax, the British flag register was so small that many people, the industry and the Chamber of Shipping included, thought that it would disintegrate, and that the flag would no longer be credible. During the original negotiations, promises and assurances were made that the increase in the British flag registry would be reflected in more training and more jobs for British workers, but that never happened, and that is wrong. In fact, we are meeting the Prime Minister shortly to pursue the matter.

Going by the many meetings that we have had with Ministers and officials over the past eight years, I get the feeling that they are starting to agree with our sentiments on equality. They understand the principles behind reforming the law and making things fairer, and their only defence is that the changes conflict with the international law of the sea. I hope that the Solicitor-General will comment on that point when she responds.

We are told that Foreign and Commonwealth Office lawyers say that, in their opinion, applying the minimum wage as described would infringe the law of the sea and the rights of innocent passage. Indeed, that has been the Government's view since we started pressing for these reforms-a long time ago. In the final paragraph of a letter dated 9 November that the RMT and I received recently, my very good friend, the Under-Secretary of State for Transport, my hon. Friend Paul Clark wrote that

"the Government's interpretation of the law...is legally sound. Therefore, it is with regret that we cannot consider this matter further. I understand that this will be a disappointment to you but I know you understand the importance of adhering to international law."

Well, we were disappointed, not least for the reasons that my hon. Friend the Member for Hayes and Harlington outlined a few moments ago, and for the fact that our legal advice indicates that new clause 25 would not, contrary to what has been said, infringe the international law of the sea. So far, we have been denied sight of the Foreign Office's legal advice, and we look forward to seeing it sometime.

I am not a lawyer or trained in the law, but I have spent many years at sea, and my lay understanding of innocent passage has always been that vessels should be allowed to sail on the high seas and in other countries' territorial waters without the threat of being stopped, boarded, searched or impounded. It is hard to relate those important and widespread protections to the narrow issues in new clause 25 and the application of the national minimum wage. These inequalities have persisted for far too long, and they cry out to be part of this important Bill. Without a far more positive response from those on the Front Bench, I intend to press the new clause to a vote when the opportunity arises.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 3:00 pm, 2nd December 2009

Apart from the fact that the Government seem to be isolated in this interpretation of the law, I remind my hon. Friend that in numerous debates in this Chamber he has cited the concept that the other pieces of legislation that we have enacted-on health and safety, criminal law and so on-do apply to ships that pass through British waters. Why, therefore, does this legislative proposal, exceptionally, not apply?

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Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

My hon. Friend is absolutely right. A third fairly recent example is that of the Corporate Manslaughter and Corporate Homicide Act 2007, which specifically covers all sorts of contingencies in home waters and, indeed, in waters overseas. There are ways of providing these reforms without conflicting with or infringing international law.

Amendment 34 is also to do with giving better rights to non-UK seafarers. It relates to the Race Relations Act 1976, which exempted seafarers from all the good things that it introduced. In the past 48 hours, we have had the publication of the regulations that we are told will be attached to the Bill. We have been asking for- shouting for, perhaps even demanding-those regulations, not for many months, but for many years. They are a step forward; they show some sort of progress. We have had private assurances from the Minister on their likely future progress, and we have been assured that they will remove at least the worst elements of discrimination and pay differentiation on vessels sailing in British waters. We look forward to hearing more about how that will be taken forward.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I want to ensure that the House is fully clear about just how far we have compromised on this matter. Under the proposals that the Government put forward for consultation, there is still a prospect that there will be differential rates of pay with regard to nationals of any EC or European economic area state. The Philippines is excluded from the list of countries in the proposals, so Filipino workers could still be discriminated against in terms of race. The proposals still include this phrase,

"the difference in rates would correspond to a difference in the costs of living in the places where the seafarers respectively habitually reside."

In other words, we have compromised even to the point where there will still be groups of people out there working on ships who are paid at the rate of their country of origin. We tried to reach a compromise with the Government whereby at least the bulk of them would be paid a fair rate for the job.

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Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

Again, my hon. Friend is absolutely right. In my view, the Government have moved the minimum amount that they were forced to move in order to comply with European Union law. That means that they have left out all sorts of other categories of workers of other nationalities who are being exploited today and will be exploited in future. We look forward to receiving responses from Ministers that are, I hope, a bit more reassuring than what we have had in the past.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

First, I want to put on record my support for the Bill, which is a landmark piece of legislation that will help hundreds of thousands of people in the years to come.

I want to speak to new clause 33, which I have tabled and would like to put to the vote at the appropriate time. I noted the comments of Lynne Featherstone. It is important that this House debates and divides on the issue of mandatory pay audits, and I believe that my new clause would be the appropriate one to vote on given that it proposes a lower threshold of 21 employees in the workplace. I will come to that at a later stage in my speech, which I will try to keep relatively brief given the time constraints on the House.

The Equal Pay Act 1970 came into effect in 1975. There has been considerable movement in relation to men's and women's pay since then, but it has been very slow and it has been a struggle. As a result of the equal pay legislation, thousands of women have gone to employment tribunals with equal value and equal pay cases. Those cases have been very difficult to take forward; in many cases, it has taken many years. I was involved in a piece of mass litigation on equal value in the national health service that took eight years, and I know of a case involving women speech therapists-a landmark case-that took 13 years to resolve. At the end of those lengthy periods, the women concerned did not get the full value of compensation that they would have achieved had they won at the employment tribunal. Because they knew that they were going to have to wait for many more years before they got to that stage of the proceedings, they decided to take a proportion of the compensation that they would have been successful in obtaining had the case gone through the whole process. Too many of those involved had retired or died, or their circumstances had otherwise changed, and they took the view that they had to take compensation at that stage instead of pursuing the matter to the bitter end.

Equal pay and equal value cases take such a huge amount of time because of the difficulty of taking them through the tribunal and the wide range of technical defences that are available to employers. Cases of this nature place a huge burden on the women who bring them; being the focus of such a case is a very pressurised experience. I therefore support new clause 4 on representative actions. We need to look at the ways that other countries have dealt with these problems. It is clear that taking class actions, or representative actions, is a way of ensuring not only that the onus is not on one individual at the tribunal but that more people benefit when they win.

I also support the amendment on hypothetical comparators. That factor applies in many other countries and there have been many employment tribunal decisions about it. I think that it is already lawful in this country, but putting it on to a statutory footing would help to underpin it.

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Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

Does my hon. Friend agree that class actions have proved very effective in places such as America? By their very nature, people bringing class actions will be the lowest paid, often the most junior and marginal members of an organisation, and it is asking too much of them, as individuals, to take action one by one.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

My hon. Friend is absolutely right. It is women workers such as cleaners, catering assistants and shop assistants who are taking these types of actions, and they are simply not equipped to take on such litigation. That is why trade unions often fund these cases, which are very expensive.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I agree. However, it is not only a case of not being equipped-there is also retaliatory action. We have just discovered, through the Information Commissioner, that 3,000 workers have been blacklisted by employers, mostly because they have taken actions against employers.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

Indeed, and I understand that regulations were published today on that issue. I have not had the opportunity to examine them, but I understand that the 3,000 people involved will not really get any justice or compensation for the discrimination against them. We know from our history that those who stand up, take action and fight are victimised. That is why many of us have fought for many years to bring in anti-victimisation legislation-so that people can take up such cases. I agree with my hon. Friend Ms Abbott that class actions are one of the most effective ways to do that.

We still have a huge problem with equal pay in this country. We have had quite a bit of banter about statistics, but it is clear that since 1975, when the 1970 Act came into effect, the trend has been in the right direction in the sense that the gap between men's and women's earnings has narrowed. That has not been a constant trend, and there have been years when it has increased. In the last year for which we have statistics, 2008-09, the gap got smaller, but in the year before that it widened.

We have heard a lot about the figures, and we know that the pay gap for full-time employees is somewhere between 12 and 13 per cent. For all employees it is more like 22 per cent. As has been pointed out, different information becomes clear depending on how we look at the statistics. Far more women work part time, including those who are well qualified and had well-paid employment before having children and then deciding to go back to work on a part-time basis. It is clear from the extensive research that such women are paid a lower hourly rate than men undertaking similar work of like value. There is huge discrimination against part-time workers, particularly women.

It is also clear from the work that has been done that there are huge regional variations in discrimination against women and in the gender gap. The Fawcett Society has shown that the gender gap is 53 per cent. in west Somerset and 49 per cent. in Windsor and Maidenhead, but in Sevenoaks and Kent it is 1 per cent. Similarly, when we look at some employers, we find that women are paid more than men on average because of the types of jobs that are done. One can do all sorts of things with statistics, but the general picture that there is still discrimination against women cannot be argued against.

One of my concerns is our failure to make such speedy progress as comparable countries. The international comparisons show that Britain is moving down the scale and our situation is getting worse. Of the 130 countries that are part of the World Economic Forum's global gender gap index, Britain was ninth in 2006. Last year we had fallen to 13th, and now we are ranked 15th, so it is clear that other countries are addressing the problem better. We must examine what they are doing and consider how they are achieving that. I agree with my hon. Friends that representative and class actions are part of that, but so are mandatory equal pay audits. What has happened in other countries makes it clear that that form of transparency works. In Sweden, where such audits were introduced in 1991, the pay gap is now only 3 per cent., and they have also worked in other countries where similar action has been taken. It is shameful that the business lobby has succeeded in persuading the Government not to take a mandatory approach.

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Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

We are in an era of declining levels of trade union organisation of the work force, which makes mandatory pay audits even more important.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

I agree. We know that in spheres of employment in which there is a high level of trade union organisation, the level of discrimination is far lower, not just on equal pay but on a whole raft of matters, most importantly health and safety. There are people ensuring that the laws passed in this place are implemented in the workplace. Unfortunately from our perspective, the public sector is now the sphere in which the trade unions are best organised, and over a lengthy period the level of trade union organisation in the private sector has diminished.

Since 1997, the Government have attempted relatively successfully to address some of the problems in the public sector. Although Labour brought in the equal pay legislation in the 1970s, in many ways it was not implemented as it should have been because of the difficulty for individual women of taking equal pay cases. That problem was taken on board, and the attempts to bring in job evaluation and examine pay scales have succeeded in addressing many difficulties. However, one problem that has been mentioned is that insufficient funds have been provided to address historical discrimination, and bin men are being asked to take a salary cut so that a catering assistant or cleaner can get their salary increase. That is not the way to deal with discrimination. The only way to address the problem would have been to bring everybody up to the same level over a long period rather than level down, which would have required greater funding.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North 3:15 pm, 2nd December 2009

I am pleased that my hon. Friend has mentioned refuse collectors, probably in the light of the strike in Leeds. Apparently, some people there have been expected to take a pay cut. Does she agree that it will require greater expenditure by local authorities to maintain male earnings and bring female earnings up to the same level, and that that should be recognised in the standard spending assessment for local government next year?

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

There is indeed a problem in Leeds, and also in my constituency, where refuse workers are being asked to take pay cuts. I suspect that it is a live issue in many parts of the country. The problem was not created in 1997-it goes back decades, and our failure to address it over a lengthy period makes it more difficult and expensive to do so now. I agree with my hon. Friend that it has to be taken on board when considering local government finance.

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Photo of John Mason John Mason Spokesperson (Work and Pensions)

I agree with the hon. Lady that we should be pulling people's pay up rather than down, but that creates the knock-on effect that it is harder for a council providing a service to compete with the private sector, which may underpay workers, often women, for the same thing. We need to address that, too.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

Yes, that is a massive problem for local government and throughout the national health service and all parts of the public sector. As I said, at least there has been an attempt to grapple with the problems since 1997, with all their complexities and difficulties. Unfortunately, that cannot be said to the same extent of the private sector, in which about 80 per cent. of employees work. Gender discrimination is an even more difficult problem in that sector, and it is even more difficult to bring equal value cases because of the lack of transparency.

When I took equal value cases in the health service, we knew what a cleaner was paid, and we also knew what the wall washer, who was a man, was being paid. He was paid more, even though he was washing the wall and the women were washing the floor. We were therefore able to put a case together. That is not the situation in the private sector, because there is no transparency and different people doing the same job are on very different terms and conditions of employment. That makes it even more difficult to achieve any kind of equality, because people do not know what is going on round about them. They get information accidentally and anecdotally, and it may or may not be correct. They could therefore be well into an equal value case before they knew what the ball game is and what they were being paid in comparison with others.

I welcome clause 75, which opens the way for a more mandatory approach in that it gives Ministers a power to make regulations to require employers with 250 or more employees to publish information. However, a voluntary approach has not worked over the past 40 years, so I find it difficult to believe that there is going to be significant movement in the next four years, in which time the Government say they hope there will be an improvement in the situation. They have said that they do not intend to use the power until 2013, and I hope they will revisit that mandatory aspect.

The figure of 250 employees will simply exclude considerable numbers of people who could benefit from the Bill, so I welcome new clause 3, which was tabled a considerable time ago by the Liberal Democrats. It would be a significant improvement, but my concern is that it would still exclude many people who could be helped by this legislation. As I understand it, the measure was drafted in line with the equal pay task force recommendations, which were published in 2001. That authoritative report, which was commissioned by the Equal Opportunities Commission, has already been quoted in our debate.

The reality, however, is that even if new clause 33, which would introduce a threshold of 21 employees, were successful, 32 per cent. of women would be excluded, because they are employed in organisations with 20 or fewer employees. Only 68 per cent. of women and a slightly higher number of men would be in organisations that had to make such information available.

The figure of 21 employees was chosen simply because it fits in with the Government's approach to other legislation, such as trade union recognition, and not for any other reason. There is a very strong argument that there should be no threshold at all, because this form of transparency is easier the smaller the organisation. However, we took the view that some people would feel able to support a threshold in the region of 21, but would not support no threshold whatever.

I believe that mandatory pay auditing legislation would help significant numbers of men and women in this country-of course, not only women take equal pay cases, but men too, and they do so successfully. However, the vast majority of people who are discriminated against in their pay on the ground of gender tend to be women, so women will be the major benefactors of successful legislation.

This is an important issue for our party in government, and I very much hope that the Government will feel able to look at it again. They will be very well aware that many Labour MPs are very sympathetic and supportive of proposed new clause 33, as I suspect are many Ministers who have been involved in the Bill.

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Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Does the hon. Lady agree that if we do not get such a measure in this Bill and should there be a change of Government, we may never get one?

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

I do not believe that there is going to be a change of Government, so if we do not get such a measure in the Bill, I will be back here fighting next time round. It is a general rule that we need such measures now. The longer we delay, the less we can be sure what is going to happen in future. If this Government felt able to go down the line of mandatory equal pay audits, it would be a huge advance and a significant achievement. If we do not go down that line, I suspect that we will be back here in four years' time to have this debate again, after the voluntary approach has yet again proved unsuccessful. I hope that we will today achieve a significant step forward, particularly for women, and that we will get one of the proposals for mandatory equal pay audits passed.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I congratulate all the contributors, not excepting Philip Davies, on the vigour with which they expressed their views. I will respond not in the order in which people have spoken, which would not be possible, but in the order of the proposals, as best I can.

New clauses 3, 26 and 33 are on one of the topics that my hon. Friend Ms Clark spoke about. They are the successors to the proposals on mandatory pay audits that were extensively debated in Committee. It is true that there was a very full debate indeed in Committee, setting out where the divisions lay. However, I must say that in my view, there is a danger of a sort of inadvertent sloganising. What is the significant difference between a mandatory pay audit and what it would disclose, and requiring, as we will immediately of the public sector and ultimately of the private sector if it does not comply, the disclosure of information from which the pay gap in a firm can be seen, so that pressure can be applied to narrow it?

If mandatory pay audits, which are pursued by two of the proposals, are going to be the same as those that have failed to work in a number of areas, we are unsurprisingly not going to support them. The kind of consultant-based mandatory pay audit that has been prevalent is often sexist in its conclusions and has had to be fought. Local authorities that have tried rigorously, with the best will in the world, since 1997 and the single status agreement, to have what amount to mandatory pay audits, have in very large measure, as everybody agrees, landed themselves in employment tribunals because the management of the audits has not been transparent and has therefore produced sex discrimination of its own kind. The audits are quite difficult to get right and can be an enormous burden. For instance, in Sweden, which has had mandatory pay audits for some time, there is simply no evidence that they have worked effectively at all. We are looking to get away from the term "mandatory pay audits" if what it means is what I have just described, and to arrive at a practical solution that will advance the equality of women's pay, which has been unfairly different from that of men for far, far, far too long.

My hon. Friend the Member for North Ayrshire and Arran talked about transparency, and that is the name of the game. She complained that in the private sector she was not able to learn about pay differentials, but there will be no place for the private sector to hide on pay differentials in the future. Secrecy clauses will be banned under this Bill, and we will require that immediately-it is not a case of waiting until 2013 to ask the private sector to publish its pay figures. I will come later to the most up-to-date information that I have about the work that is being done, which is being thoroughly supported by the CBI and other employers, with the EHRC and the TUC, to try to work out the optimum measurements that will disclose pay structures effectively without imposing an unfair and unnecessary burden. However, the whole negotiation has been on the basis that pay transparency is agreed to be the most important factor. The issue is what measurements will be needed to disclose those structures. The issue of burden is much further back. However, we are seeking the optimal solution so that clarity may be obtained and action taken on the basis of what is disclosed.

I asked a rhetorical question about the difference between a mandatory pay audit and disclosing enough information so that people can discover what is going wrong with pay scales and put that right. That goes beyond direct discrimination. John Penrose does not understand that figures will disclose not just deliberate discrimination, but inadvertent discrimination, historic ghettoisation and many other factors.

I suppose that the answer to the rhetorical question is the mandatory element. The issue is whether we continue as we have been doing, as the realisation is emerging that equality, diversity and good business go together and are not the enemies of each other. Should we encourage that to flourish-and observe participation in that-or should we say, "Hey, businesses, you're all under arrest and you must all do mandatory pay audits", even though such audits have not made a significant difference in those countries where they have been tried? The Government's position should not be construed as demonstrating the slightest lack of political will, determination or certainty that we will advance the cause of equal pay, and quickly. I am confident that it will go up 10 gears when the legislation comes into force.

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Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran 3:30 pm, 2nd December 2009

My key point was my concern about the lack of enforcement and the fact that a voluntary scheme is being proposed, rather than a compulsory scheme. The Minister's points are about the detail of the information that should be provided. Experience has shown that unless such schemes are made compulsory, people do not co-operate. We do not have time to wait another four years. In the public sector, that would mean another four years of equal pay cases-as it would in the private sector. Surely we have waited long enough, and the scheme should be compulsory.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

There will be compulsion in the public sector, and that will start the day this legislation comes into force. In the private sector, we have seen a new understanding emerge that prosperity in business goes hand in hand with equality and diversity-and we are keen to encourage that. It is not just a question of waiting for something to happen. That is why, even before the Bill becomes law, the commission is working to produce, within a matter of weeks, the measurements that it will ask the private sector to implement. Those measurements have been arrived at-or almost arrived at, as they are not quite ready-with the full buy-in of the major employers' organisations. I have met the representative of the CBI-she and I almost have a mobile road show going, together with someone from the TUC-many times on this issue, and she asserts voluntarily, without being pressed into doing so by me, that she intends to drive through compliance with these measures by her employers. If we can harness that power from both sides, it will be much better than engendering conflict by introducing a mandatory scheme that has not worked elsewhere.

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Photo of John Penrose John Penrose Conservative, Weston-Super-Mare

I have seen announcements from the EHRC saying that it would not be able to publish some of the details of the proposed measurements until 2012 or 2013, but the Minister has just said that they will be published in the next few weeks. If that is true, it is tremendously welcome and very good news. Can she confirm that those earlier press announcements were misinformed and that the details are due soon?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Yes, I think that there was some muddle there. I will say a bit more later, but I can confirm now that they are due much sooner than that.

I want to make it clear that we consider our approach to be the right way forward. As I have done in the past, I commend and cheer on my hon. Friend the Member for North Ayrshire and Arran. She has a fantastic record in her private history of chasing the issue of equal pay, and she has had incredible success. She is obviously highly skilled as well as incredibly committed, and I make no mistake in saying that she speaks with feeling and a high level of knowledge. However, in the past, she has had difficulties-I am well aware of the laboriousness of such legislation and litigation. Over the years she has been contending with this matter, there has been neither the obligation for transparency in the public sector nor the pressure that there will be for transparency in the private sector. To progress very quickly, we need the buy-in of both sides of industry if possible.

I could rehearse more of the arguments made in Committee, but they have been adequately heard and what I have said summarises them reasonably well. I am anxious to satisfy all parties on our absolute determination that the Bill will, among many, many other things, accelerate the move towards equal pay for women.

New clause 26, tabled by the Conservative party, would require a more specific position, which is that employment tribunals should order mandatory equal pay audits whenever an equal pay case is lost by an employer. That was presented in a three-clause Bill in the Lords-it was one of the clauses-but was taken apart by Lord Lester, who is not a member of the Labour party but who did a skilful demolition job none the less. The new clause is tokenism and would make little difference to tackling the gender pay gap, not least because its effectiveness depends on a case being won in an employment tribunal.

Let us look at the employment tribunals. In 2008-09, there were more than 100,000 public sector cases, almost all of which-I cannot say all-involved bodies that had already undertaken equal pay audits under the single status requirement, which has been battling on since 1997. Often the results of equal pay audits are the very reason cases are brought. It would not be sensible for it to be compulsory for a tribunal, in trying to unpick the aftermath of a pay audit, and to ensure that it works and drives the move towards equal pay, to have to order another one. That is the long and short of how nonsensical the proposal is.

Few private or voluntary sector organisations reach an employment tribunal. In 2008-09, when there were 100,000 public sector cases, there were 1,574 non-public sector cases. There is much to be said about such a small number and the need for things such as representative actions, and I shall come to that in a minute because it makes my point while requiring me to make another one about representative actions. However, the new clause is completely undesirable because it would remove any discretion for employment tribunals, which would have to order equal pay audits-that is not what judges are for-in circumstances where they consider them wrong, unnecessary or inappropriate.

Conceivably, there could be instances of individual cases that do not reflect systemic equal pay problems. One wrong move by a business and a tribunal might have no other option than to order a mandatory equal pay audit across that business, however big it might be. If an employer is found to have breached equal pay law, it should, as a matter of common sense and good management, want to assess what changes it needs to make to avoid further claims, and it will. We oppose the new clause, therefore, and think that it is just a token gesture.

Let me turn to new clause 4, which is about representative actions and which was also supported, strongly, wholeheartedly and with great power, by Lynne Featherstone and my hon. Friend the Member for North Ayrshire and Arran. As I have said throughout, our mind is not closed to the future of representative actions at all. Taking full-time and part-time pay together-that is how we must take them, otherwise we will be putting part-time workers into a less virtuous category-there is a 22 per cent. pay gap, and that simply will not do.

We understand totally that unequal pay is often systemic. As I have said, there can be isolated cases, but it is often systemic. Sometimes unequal pay is deliberate, but often it is just there and it needs rooting out by transparency. However, that needs to be driven not by some poor isolated individual who has been required to put their whole future and the money at stake and who is sometimes required to summon up the courage to go forward. Rather, we need support for people and better access to justice. We are in no doubt that we must look to do just that.

However, representative actions in the area of law covered by the Bill have some particular difficulties. We recently carried out research into how representative actions would work for equal pay cases and into the complexities, which are as follows-my hon. Friend is not in her place now, but she will follow them when she reads this. Before I itemise the problems, let me say that there are polarised views on the effectiveness of representative actions. Indeed, not even all the trade unions that are active in equal pay matters-the trade unions from which representatives would be drawn-are at one about how effective the introduction of such measures would be.

There is a strong school of thought that says that what my hon. Friend talked about-the ability under the current rules to draw out a class action and use it as a testing ground and model-can be beefed up by changes to the rules. Indeed, that approach is already in use and effective. There might be other ways forward; my point is simply that there is no unanimity even among the people who would be the representatives and from whom one would expect the drive to come.

However, the problems include the extent to which costs should be borne by the losing parties in tribunal cases, which they do not currently; how such cases should be funded; whether claimants in such cases should have to opt in to a representative action or whether they should be assumed to be a part of it unless they opt out; how to resolve a dispute between an individual claimant and the representative party; how damages should be awarded; and how they should be distributed to a successful class of claimants.

There are a lot more issues to work through with regard to employment tribunals than with regard to the civil courts. Representative actions are permitted in a limited way in the civil courts, so when representative actions are introduced for consumer and financial services cases, for example, we are building on a legal framework. However, there is absolutely no similar mechanism for employment tribunals, so introducing it for such cases would be a departure.

A further point to make about the complexity is that discrimination cases are often linked to other kinds of cases, such as unfair dismissal cases. We need to consider whether it is sensible just to introduce representative actions for discrimination cases or whether that overlap will cause greater confusion and delay. The Ministry of Justice is doing further work with the Civil Procedure Rule Committee and is trying to develop a toolkit, so that Departments can look at the issues and decide, Department by Department, whether it would be good for access to justice in their areas.

We recognise that pay discrimination is systemic. We recognise too that there are situations where a number of individuals will want to bring broadly similar claims against a single party. We know that introducing representative actions could bring benefits for individuals, and potentially also for defendants faced with multiple claims. We will look at the issue, and we may well consult in due course. In the meantime, on the understanding that we are researching the issue as far as we can, I invite hon. Members not to press new clause 4.

As for hypothetical comparators, I think that there has been a slight mix-up on the clause numbering, as clause 64 is now the relevant one, although that does not particularly matter. The clauses reflect our decision to keep the distinction between contractual and non-contractual pay matters for work-related gender discrimination, which means that someone has to identify a comparator of the opposite sex to make an equal pay claim. That has to be a real person.

We are firmly of the view that accepting new clause 5 would lead to difficult consequences, some of them probably not only unintended but unforeseen. We are obviously determined to expose and address unequal pay; I hope that that can be taken as read. The way to do that, however, is not to increase confusion about how comparisons can be made, but to increase transparency. The tribunal would be asked to conclude from the fact that there is a difference in pay between two people doing work that is not of the same value, that that somehow indicates that two such people doing the same work would be paid differently. In the absence of evidence of direct discrimination, for which we have made new provision in clause 68, we do not see how that conclusion can be reached. Clause 68 does, however, allow claims where there is evidence of direct discrimination in relation to contractual pay, so that is a little gap that we have filled, moving in the direction of the amending provisions.

There are contrary views on this issue: most of the respondents to our Green Paper supported our position that we should keep the current approach, although the Fawcett Society and the Women's National Commission did not agree. The consequences of allowing a hypothetical comparator could include, for instance, enabling a man in a lower-paid job to seek to equalise his pay with that of another man in a higher-paid job that he asserts is of equal value. A male care assistant could cite a hypothetical female refuse collector as a comparator of work of equal value in order to bring his wages up to the same level as refuse collectors who are male. That is not what the equal pay provisions are for, as they are intended to tackle discrimination between men and women rather than be a mechanism for fair pay-there are different mechanisms for that. Permitting reliance on a hypothetical comparator would encourage that sort of claim and might well bog down tribunals even more; it would take the legislation way out of the territory that it is intended to cover.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice 3:45 pm, 2nd December 2009

The theoretical possibility that the hon. and learned Lady just mentioned exists for all other terms and conditions of employment, but not for those connected with pay. Why, then, does she adopt this position, which seems to me inconsistent with what everyone agrees works well in the rest of discrimination law?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

We have said many times why we think that the unintended consequences are much more far-reaching in the pay sector than they are elsewhere. That is why we have always drawn back from allowing hypothetical comparators. They are not essentially a tool of the mission on which we are embarked; they would send it into very diverse courses, which is not our target.

Let me mention a fairly recent case. People worry especially about women involved in contracting out-where, for example, a local authority's cleaning is contracted out-because they are left without a remedy in that they no longer have a male comparator. They are the cleaners, they are ghettoised and they are women, so they no longer have a male comparator doing equal work. The thrust of the argument for hypothetical comparators seems to be that they would address that problem.

David Howarth, who is a smart lawyer, will know that the Court of Appeal in the case of Guttridge v . Sodexo has shown that a right to equal pay under an equality clause is protected following a TUPE transfer, and that employees will be able to enforce that claim against their new employer. Since that was the height of the argument in favour, and given that we do not agree with it because of the possible unintended consequences, I hope that people are none the less reassured that some of the teeth have been drawn.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

The Minister makes a point about employees transferred with TUPE protection, but the problem often arises that groups of workers that have been transferred with that protection are joined by new recruits who do not have the same protection, leading to the inbuilt problem of a disparity between conditions, and sometimes the introduction of discrimination after the TUPE protection has expired.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The usefulness of the case-although it does not extend to the circumstances envisaged by my hon. Friend-lies in the fact that as long as an action is brought within the six-months following the separation of a local authority, for instance, from its employees, equal pay can be guaranteed for all who have been transferred. As for the future and other aspects of fair pay, they are really outside the ambit of the Bill. We ought to seek other mechanisms to ensure that pay is fair. In this instance, we are discussing equality of pay between men and women, and other members with protected characteristics.

I must say, with huge respect to my hon. Friend, that although we all mean well and want to ensure that people receive fair pay, he has, in a sense, helped my argument that it is possible to take hypothetical comparators too far and end up a long way away from the issue with which we are dealing. I do not suggest for a moment that there are not other ways in which we must tackle low pay-there certainly are, and we have used them repeatedly-but hypothetical comparators are not the crux.

New clause 6 and amendments 1 and 68 concern the material factor defence. It was at this point that the numbering of the clauses was a bit adrift. The new clause and amendment 1 replace clause 66, which provides a defence of "a material factor" to a claim under an equality clause, with an alternative wording intended to achieve an effect similar to that of clause 66. We debated this subject in Committee. We cannot accept the amendment today, but we are considering the issue that was raised by Dr. Harris in Committee, and we think that there will be an opportunity to bring about some movement on it in another place.

Clause 66 is intended to replicate the effect of the current law, which says that a material factor that is directly discriminatory simply fails, and one that is indirectly discriminatory must be justified objectively in order to succeed. That is the policy intention behind the amendment, and it is ours as well.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I was about to point out that there is a clash of words. I am sure that the hon. Gentleman is about to mention it.

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Photo of Evan Harris Evan Harris Shadow Science Minister

Concessions by the Government have become so rare that they ought to be noted in interventions. I am grateful to the Solicitor-General for saying that she will reflect on the material factor defence. It would be good to hear that at any stage in the Bill's passage. I recognise that it will have to be dealt with in another place rather than on Report, but it would be churlish to let it go unremarked on, and we are grateful.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I am grateful for the hon. Gentleman's gratitude. The question of phraseology remains, and I do not think that we are going to accept his phraseology, but if he agrees not to press his amendment, we will reflect and see whether we can reach some understanding.

Amendment 68 relates to the long-term objective of reducing inequality between the terms of men and women, which should always be regarded as a legitimate aim. Removing pay inequality between men and women is the main goal of some parts of the Bill. However, we do not underestimate the challenges faced by employers dealing with the legacy of pay inequality. Reviews of pay structures such as those that take place now, and will take place more fully following the enactment of the Bill, and restructuring of businesses and new ways of doing work can result in pay discrepancies.

Clause 66 is intended to encourage employers, employees and their unions to identify and resolve pay inequality by negotiation, which is much better than litigation. Its purpose is to put the legitimacy of that goal beyond doubt. It does not provide an easy get-out for employers, and it will not reduce protection for women. An employer who relies on this factor must always show that the means used are proportionate. However, it is important to make it clear that the best way to achieve the long-term objective of removing inequality is negotiation in circumstances that might otherwise involve real difficulties in relation to pay discrimination.

I shall now turn to new clauses 11, 21 and 22. The hon. Member for Hornsey and Wood Green and I both said we would revisit the issue in question on Report, and we have done so. It is about the CV survey, which I think I first disclosed in Committee, on how recruitment is conducted. The report following this survey was published in October and it confirms that there is undoubtedly race discrimination in the recruitment process. The report showed that whereas a white applicant had to send an average of nine applications before getting a favourable response-an invitation to have an interview or a telephone call to encourage them-an ethnic minority applicant had to send 16 applications. What to do about the report's findings should be decided by the body that started the ball rolling in the first place: the Ethnic Minority Employment Task Force. It should have met to talk about that last month, in which case I would have told Members what it had discussed. It was unable to meet owing to unforeseen circumstances, but it will meet in the new year.

The report suggests that such discrimination is most prevalent in small and medium-sized businesses, and it offers two possible reasons for that: first, that such businesses may not use standardised application forms; and secondly, because SMEs tend not to have separate human resources departments with distinct staff whose job it is to ensure that application forms are anonymous. In a business where only two or three people work, for example, it is not at all likely that that would be practical. Although the hon. Lady's amendment is a genuine attempt to deal with this issue, it does not contemplate the possibility that in certain circumstances it may be necessary, and indeed beneficial, to take protected characteristics into account-for instance, for positive action. We will therefore all have to consider what the appropriate policy response is.

The hon. Lady talked about work being done to combat subliminal discrimination-which caused a good deal of amusement to the hon. Member for Shipley, as I am sure she can imagine. We know about that, too. The current edition of the Incomes Data Services Diversity at Work publication says that Ernst and Young has found a learning tool that demonstrates its decision makers' unconscious bias, and how that works. The training that it has piloted has led to a reduction in the gender and ethnicity disparity in the firm's performance rating. Thus good practice of that kind can play a role. Although we have looked for, and found, race discrimination in a new place, that does not necessarily mean that we need a new law to match it. We have not looked for it in order to do nothing about it when we have found it, however, and I invite the hon. Lady to withdraw her amendment on the basis that the taskforce is the best mechanism to drive forward whatever we need to do to get rid of that completely unacceptable discrimination.

Like our new clause 40, new clauses 21 and 22 would prohibit the use of pre-employment questionnaires in specific circumstances, but we have discussed the essence of this, and the Opposition new clauses do not go as far as our new clause, and do not give the protection that disabled people need, because they make no provision to bring employers to account. There would have to be a tribunal hearing, but just declaring something unlawful does not take the matter very far. Our proposal backs that up by reversing the burden of proof at the tribunal. We therefore think that our new clause is better and stronger; we do not think there is much between our proposals, but if the Opposition were to see fit not to press their proposals to a Division, we would be very content.

Amendment 70, tabled by the hon. Member for Shipley, is intended to test the reasoning behind the pay secrecy clauses. Clause 74 is intended to ensure protection against victimisation for employees who discuss their pay with colleagues when they are not generally contemplating a claim as such, but want to find out if differences exist that are related to a protected characteristic necessary to help get better gender pay transparency, and also to protect people when they try to find out whether they are being discriminated against in pay terms.

Rival amendments have been tabled, because the hon. Member for Shipley wants this clause in the bin whereas the hon. Member for Hornsey and Wood Green wants to make it wider. Her proposal gives us a few causes for concern, because she would like to ensure secrecy in discussions with third parties as well as with fellow employees, and that could include a direct competitor. There could be very sound reasons, quite unrelated to discrimination, why employers would not want their levels of pay to be disclosed to a competitor, who might undercut them, undercut their margins or offer the employee more. Protecting a person who takes such an approach would go well away from the aims of the legislation, which are about allowing everyone to know what they are being paid. We do not think it is necessary, as she does, to include a provision to protect someone who seeks advice from a third party. If that third party is a trade union, section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protects that kind of conversation, and if it is a lawyer, the conversation will be protected by privilege. We think that the hon. Lady's proposal goes too far, and we ask her not to press it to a Division.

My hon. Friend John McDonnell proposed putting equality reps on a statutory basis. We are very sympathetic to that, because they need facility time, which learning reps and health and safety reps have. As he acknowledged, we have supported trade union equality reps. Unions such as Unison, Unite, the Public and Commercial Services Union and the National Union of Teachers have piloted 15 schemes to demonstrate the value to employers of the work of equality reps in workplaces where there are trade unions. As my hon. Friend said, we acted on the recommendations of the Women and Work Commission. We spent £1.5 million from the union modernisation fund and Government Equalities Office cash to build capacity and to support the evaluation of the effectiveness of the reps. That is where we are now. The funding comes to an end this year, but we hope that by then we will have received an evaluation. That is what we are waiting for from the TUC.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 4:00 pm, 2nd December 2009

Will the evaluation be received in time for the consideration of this Bill in the Lords, so that the Government will be able to amend it accordingly?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I do not know. We have been asking for the evaluation for some time. I was anxious to receive it before this stage if that was practicable, but we have not received it: that is the situation. In readiness to receive this evaluation, we have conducted a round of discussions with employers and others, and the opinions we heard were a bit divided. Therefore, we also want to use the evaluation to persuade employers about the benefits, but the long and short of it is that that is what we are waiting for.

I shall move on to the different issue that my hon. Friends the Members for Hayes and Harlington and for Dover (Gwyn Prosser) have brought before us. Their amendment 34 seeks to remove the power for Ministers to introduce affirmative regulations specifying how part 5 of the Bill, which deals with the "work" provisions, would apply to seafarers and those who work on hovercraft. Without any such regulations, the application of part 5 would be a matter for tribunals and the courts to decide on a case-by-case basis. I cannot imagine that anybody would want that, because it would cause confusion and uncertainty.

The context in which seafarers undertake their work is different from that of other workers. Many issues relating to ships and their crew are governed by the law of the state where the ship is registered, but others may be governed by the law of the state in whose waters the ship is located. A ship can be constantly moving between waters under the jurisdiction of different states, and might not be operating in the waters of its own flag state. Given that context, we definitely do not want the facts about to whom this part applies and to whom it does not apply to be determined on a case-by-case basis. That is why we need regulations, and why, in due course, we will urge my hon. Friends not to press their amendment, which would stop those regulations being made.

The UK is entitled to apply its law to vessels registered in the UK, but international law and custom limit the extent to which the provisions can be applied to non-UK registered vessels even while they are in UK waters. The Equality Bill is completely silent on how part 5 applies generally and regulations must be made to apply it to ships and seafarers in all those locations and circumstances to ensure that seafarers are protected from discrimination at work as and where appropriate. Without the regulations, it would be completely unclear. Everybody wants to see seafarers protected from discrimination, but we must tailor the way in which this is achieved.

Let me move on to the concern that drives my two hon. Friends to try to remove the regulation-making powers when they clearly appreciate as well as we do that it is important to have certainty in application. I think that the regulation-making power is wide enough to address the issue of differential pay among seafarers.

It is common practice in the shipping industry for seafarers' pay to reflect the country where they are based and therefore where they are likely to spend their wages. Historically, that has been lawful by reference to nationality in the UK through section 9 of the Race Relations Act 1976, which is repealed by the Equality Bill. I understand that my colleagues who are seeking this amendment would like to see differential pay outlawed totally in the UK and are concerned that, by allowing the regulation-making power in the Bill, the Government will replace section 9 or put in pay differentiation in some way.

It is right to say that the Government must carefully consider the implications of disallowing the practice, including the economic impact, and weigh up the possibility of putting UK employers at a significant commercial disadvantage. That said, the Government are acutely aware of the opposite case and of the strength of feeling against reintroducing even a more narrowly drawn replacement for section 9, or anything like it. So, the Under-Secretary of State for Transport, my hon. Friend Paul Clark, published draft regulations earlier this week. They offer an insight into how the Government think the provisions in part 5 will apply to seafarers and remain silent-we will return to this-on the issue of differential pay.

The final regulations will determine the extent to which part 5 applies to seafarers. As published, the work protection would be given to a seafarer working wholly or partly in Great Britain on a UK-registered ship or a seafarer working wholly or partly in Great Britain on a ship flagged to an EEA state other than the UK while it is in UK waters if the seafarer is British, an EEA national or a citizen of a state with corresponding EU law rights, provided that the seafarer has a legal relationship located in Great Britain or has a sufficiently close link with Great Britain. My hon. Friend the Member for Hayes and Harlington asked for some explanation of what a sufficiently close link would be, and I shall try to help with that in a minute.

The third category to which part 5 would apply under the current regulations is to a seafarer working wholly outside Great Britain on a UK-registered ship if the seafarer is a British citizen or a national of an EEA state or a state with corresponding EU rights, provided that their employment relationship is in Great Britain or, again, has a sufficiently close link. The non-UK and non-EEA states are those that have an associative agreement with the EU. They include, for instance, Nigeria and Guyana, from which, I understand, some seafarers are drawn.

What counts as a sufficiently close link to bring those second kinds of seafarer under the protection of the Bill depends on an overall balance of a range of factors. However, factors that may be relevant are: whether a person is employed on board a ship where the ship is registered-its flag state; the law under which the employer company is incorporated; where the employer's business is established; where an employee is recruited or hired, or where the contract for employment is concluded; under which territory's law the employment relationship is entered into; which territory's law applies to the whole employment relationship; the jurisdiction under which disputes about employment relationships should be brought; the legal systems to which the two individuals are subject; to which territory's social security system the employee is affiliated; the territory where the employee pays income tax; the nationality and ordinary residence of the employee; and whether the employment involves the performance of sovereign functions, which I do not suppose happens very much.

My hon. Friends the Member for Hayes and Harlington and for Dover, with whom I had the pleasure of meeting last night with my hon. Friend the Parliamentary Under-Secretary of State for Transport, gave me a set of examples about people working on ships between Aberdeen and Lerwick, and asked whether they would be covered by the regulations as currently drafted and hence protected against that unequal pay. The answer is that one would have to consider all those characteristics.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

From a brief examination of my hon. and learned Friend's words, I suggest that the Filipinos working on those ships would not be covered because they are non-EEA and non-EC employees.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

So far as I have got, that looks to be correct. My hon. Friend asked for guidance and I have done my limited best to give it. So, that is where we are with differential pay. For the avoidance of doubt, in the draft regulations published by the Under-Secretary there is no reference to pay differentiation, which means that if they were approved by Parliament as they are now, the practice would not be lawful at all. As I understand it, that is a very clear position. My hon. Friend the Member for Hayes and Harlington is aware that in the ordinary course of consulting on these regulations, letters have gone out to ask all stakeholders what they think would be the implications of removing that kind of differential pay. I fear that we must await the outcome of that consultation before going forward. I hope that I have given him some comfort, if no more.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

Before my hon. and learned Friend moves on, may I ask something else about differential pay? It would be helpful to get it on the record that the existing regulations do not apply to pay, although others might interpret the measures differently. However, they do apply to this part of the Bill more generally, in terms of equalities. As the consultation is taking place promptly, and as we believe that it will take place over a restricted period of time, may I ask her about the potential to address the issue of differential pay after that consultation and to put it in the Bill when it goes to the Lords?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I heard my hon. Friend suggest that, and we have discussed it briefly here, but I do not think that the right way forward is to put what are essentially regulations in the Bill. Indeed, I am not sure whether we can do that. It might be possible and it might help to finalise the consultation process as early as possible and to publish the proposed regulations, so that everyone can see what is coming and can start to adjust to what will happen. In terms of a timetable, the final regulations will be introduced after Royal Assent, because they will need to be in place to come into force at the same time as part 5. Royal Assent will probably be in April and the commencement of part 5 will probably be in October, so there would be a significant amount of time to wait. My hon. Friend has made his points on this issue, but the publication of the proposed regulations might go at least some way towards flagging up what is coming and towards obliging people to start to comply.

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Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I should like to express my gratitude that the Minister has at least taken on board the spirit of what we are intending. A prompt publication of the regulations would help, but there is no impediment whatsoever to making them part of the Bill. Will she look at that again, and take advice?

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 4:15 pm, 2nd December 2009

The obvious objection is that putting the regulations in primary legislation means that they cannot be changed without more primary legislation. That is a very laborious process, and the whole point of double-decker legislation is that things can be changed as and when necessary. The judgment is that these matters ought to be set out in regulation. I shall not take the point any further, but my hon. Friend can press it with the Department for Transport. Officials there have accepted the proposal that they should meet to discuss the different legal opinions, and we expect a Minister in the Foreign and Commonwealth Office to consider the matter later on. My hon. Friend the Under-Secretary of State for Transport and I will also be able to help so, on that basis, I hope that the amendments will not be pressed.

The hon. Member for Shipley would like to strip away all protection for businesses with fewer than 250 employees. [ Interruption. ] I am being pressed about the time, but I have a lot of questions to answer. I shall just say to the hon. Gentleman that we are not going to accept his proposal. Most employers are covered already by discrimination law: we intend them to remain that way, and I hope he will not press his new clause 36.

I also hope that the hon. Gentleman will not press his new clause 38, which proposes restricting the use of positive action by public authorities. He said that his purpose was to put an end to new burdens but he is barking up the wrong tree, as positive action has been available for a very long time. It is 30 years since the sex and race discrimination Acts were passed: both of them have been very well used, as have the later Acts banning discrimination on grounds of religion or belief, sexual orientation or age. Many public bodies, including the police and fire services and the NHS, use them, and they would not be able to meet their legal obligations to promote equality in race, gender and disability so easily if they could not use positive action. They would not be able to fulfil their responsibilities in respect of all the protected characteristics if they were not able to use positive action.

It would be very strange to prevent public sector bodies from using positive action when those in the private sector would still be able to use it. Where would that leave a private company delivering a service on behalf of a public authority? I therefore ask the hon. Gentleman not to press his new clause 38, on the basis that he has made his point.

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Photo of Philip Davies Philip Davies Conservative, Shipley

May I make it clear that I did not table my amendments with the intention of pressing any to a Division? I tabled them as probing amendments, so that we could discuss some of the issues that I believe are of great concern to many people in this country.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Then I hope that the hon. Gentleman is satisfied with the discussion that he has managed to provoke. If that is his approach to all the new clauses and amendments that he has tabled, I can probably make somewhat quicker progress.

I take it that the hon. Gentleman was just having a laugh as well with his proposal about levelling down pay. Similarly, I assume that his new clause on maternity was tabled just to see how we all reacted and how many times we said, "Ah, no, that really can't be right."

I said that I would return to the question of reporting of gender pay gaps and give an update on the progress made by the Equality and Human Rights Commission. It is happy for me to share with the House that its proposals will include a range of measures on the gender pay gap. The measures will enable comparability, although employers will be encouraged to select from them in the way that best suits their circumstances. There will not be a one-measurement-fits-all approach, and I can confirm that the commission will produce its proposals as quickly as it can.

Amendments 76 and 78 were also tabled by the hon. Member for Shipley. He used amendment 77 to probe clause 125, which deals with the purpose of time limits on equality clauses-quite a techie issue-and I wonder whether I can commend the debates that we had in Committee on those subjects. We cannot accept the points made about members of the armed forces not being able to initiate tribunal cases. We have given a longer period for the armed forces, because they must go through their own process first, and we think that is the right balance.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

On a point of order, Mr. Deputy Speaker. In a situation in which we have limited time to debate a large number of amendments, is it really within the spirit of our proceedings that the Minister should take almost an hour and still not finish?

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

That is not a matter for the occupant of the Chair. As the right hon. Lady will know, how long Ministers take is entirely a matter for them, but I would observe to the House that the whole of the Bill's consideration on Report must be completed by 6 o'clock.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I have to answer on the whole of a vast range of proposals, and I have done so with what dispatch I can. I am sorry if I have not pleased Miss Widdecombe. [ Interruption. ] No one asked for another day.

Amendment 18 deals with the difference between the terms "as qualified as" and "equally qualified to". We are concerned that that is about positive action. The phrase "equally qualified to" may have unintended consequences. Let me say, in the interests of dispatch, that we will maintain the positions that we kept in Committee, but we hope that that distinction probably without a difference is not something that the Opposition will want to press to a vote.

Amendments 125, on equal pay exceptions, and 126 were also tabled by the hon. Member for Shipley. He has done us all a great service by raising those issues and then withdrawing them very quickly.

Amendment 24-last, sadly-deals with the ability of employers to use different national minimum wage rates for younger people. The Government want people to be paid a decent wage, but we rely on the independent Low Pay Commission, which makes clear the higher vulnerability of young people in the labour market to the economic cycle. They have high unemployment rates, and their employment rates are lower. In 2009, the commission's report stated:

"Young people have continued to do less well in the labour market than older workers and are particularly vulnerable in an economic downturn. We therefore believe that lower National Minimum Wage rates for young people are still justified in order to protect employment and at the same time reflect the training element attached to younger workers."

I commend new clause 40 and the related new clauses.

Question put and agree d to.

New clause 40 accordingly read a Second time, and added to the Bill.

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