Clause 38

Equality Bill – in a Public Bill Committee on 23rd June 2009.

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Contract Workers

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills) 10:30 am, 23rd June 2009

I beg to move amendment 213, in clause 38, page 28, line 2, after ‘worker’, insert

‘with a protected characteristic compared to a contract worker without a protected characteristic’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment 214, in clause 38, page 28, line 10, after ‘worker’, insert

‘with a protected characteristic compared to a contract worker without a protected characteristic’.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

It is a pleasure to see you in the Chair, Mr. Benton, as we prepare to consider these measures. The amendments are multi-technical and seek clarification. During the evidence sessions at the start of our deliberations, there was some discussion with representatives of the insurance industry about contract workers. I want to clarify whether the Government are clear about the comparator for the clause and to know whether, when talking about discrimination against contractors, we are talking about discrimination against contracted workers without a protected characteristic or non-contract workers, such as regular employees, as the relevant comparator. I hope that the comparator that the Minister puts on the record is straightforward.

The evidence session a couple of weeks ago sounded a few warning bells in my mind, and it is important that we clarify matters. Without trying your patience too much, Mr. Benton, I want to highlight the fact that all members of the Committee are aware that separate measures that are before the House will impact on contract and agency workers, and I want to ensure that the Bill is not a stealthy way to achieve something that is supposed to be in those measures and that it will do what it is intended to do, rather than something broader. I hope that the Minister can put our minds at rest.

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

Good morning to you, Mr. Benton, and to all members of the Committee. The provision is not an attempt to do anything stealthy of the type that has been mooted, although my response will be a tiny bit more complicated than my just saying no.

The clause makes it unlawful for “the principal”, the person who makes work available to contract workers, to discriminate, harass or victimise a worker. Amendment 213 would change the effect of the law by limiting the comparison by which discrimination was established to another contract worker. That would be the comparator.

However, clause 22 already establishes the fact that, as under the current law, the comparator must be someone whose circumstances are not materially different from those of the complainant. That is likely to be another contract worker, but it is not impossible that a claimant could seek to compare their treatment with that according to a permanent member of staff employed by the principal if there were, as clause 22 requires, no material difference between the circumstances in the case. It would be a question of fact about whether there was any material difference.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

To clarify the Minister’s point, it is important to understand what the similarities and the legitimate differences might be. I hope to hear reassurance that the legitimate differences might be that contract workers would be different because of the terms of their contract and the fact that they are not permanent employees and have different terms and conditions as a legal basis for their engagement with the principal. However, if the task that they are performing is, under the terms of the contract, the same as that of a full-time employee, that would be a fair comparison. In other words, we are not trying to eliminate the differences between contract workers and full-time workers, those being different forms of employment—both of which have a legitimate purpose and value in the workplace, and which we would not want to fudge or try to elide.

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

The hon. Gentleman is absolutely right. The issue is protected strands and discrimination. Issues elsewhere relate to different contractual terms, which are often different between contract workers and employees, and there is no sneaking elision of the two.

May I speak to amendment 214 before I specifically say what the hon. Gentleman wants me to say? Amendment 214 would introduce a comparator to victimisation where no comparator is necessary at all, and it would turn current law on its head. I know that it is only a probing amendment, but I need to say that we could not possibly accept it, because it would have that peculiar effect.

On 8 May, the Department for Business, Enterprise and Regulatory Reform issued a consultation document on the proposed approaches to the European agency workers directive, which requires that agency workers be treated equally with permanent staff in the organisation in which they are placed after a qualifying period determined by member states, along with social partners. According to the directive, the qualifying period is to be 12 weeks. In our view, the document does not contain any policy risks in relation to the Bill.

The proposal is that protection be granted to agency workers as for a permanent staff member. It is to be decided whether a hypothetical comparison will be permitted as a comparator, but the entitlement will be  to equal treatment with that comparator in terms of conditions of work. That is the directive, not the Bill. However, there might be issues from an employer’s point of view. The protection is distinct from that provided in the Bill, which is concerned with presenting less favourable treatment because of protected characteristics rather than because of the nature or conditions of the work. They are two completely separate policy streams. I hope that satisfies the Committee.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I thank the Minister for that explanation. That is indeed the point I was driving at and she has explained that the two strands are entirely separate—one does not affect the other. It is important for businesses around the country to have that on the record, so I thank her for it. With that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.

Clauses39 to 49 ordered to stand part of the Bill.