New Clause 40 — Enquiries about disability and health

Part of Equality Bill – in the House of Commons at 3:45 pm on 2 December 2009.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 3:45, 2 December 2009

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.