New Clause 20

Equality Bill – in a Public Bill Committee at on 7 July 2009.

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Prohibited pre-employment inquiries

‘(1) A person (A) subjects a disabled job applicant (B) to prohibited 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.’.—(Mr. Drew.)

Brought up, read the First time, and Question proposed (this day), That the clause be read a Second time.

Question again proposed.

Photo of Joe Benton Joe Benton Labour, Bootle

I remind the Committee that with this we are considering new clause 21—Employees and applicants: prohibited pre-employment inquiries—

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

Photo of John Howell John Howell Conservative, Henley

Welcome back to the Chair, Mr. Benton, on the downhill slope to the end of our consideration of the Bill.

When we adjourned, I was explaining that business supports the new clause. I had mentioned the support of the Employers Forum on Disability and the Federation of Small Businesses, and was about to come on to the  CBI’s support. Subsection (2)(a), (b) and (c) meets the points raised by the CBI in the Work and Pensions Committee evidence session.

I make no apology for speaking on this matter because it is important. That importance is illustrated by question 43 of the first sitting of this Committee, in which my hon. Friend the Member for Forest of Dean asked:

“Can I ask whether you support such a restriction on pre-employment questionnaires?”

The response from Caroline Gooding of RADAR was:

“We think that, in relation to the employment of disabled people, that is probably the single biggest difference and improvement that could be made through the Equality Bill.”——[Official Report, Equality Public Bill Committee, 2 June 2009; c. 23, Q43.]

There has been praise for the new clause from many sources, but that quotation sums it up.

My hon. Friend mentioned the Government response to the Select Committee report. Paragraph 42 states:

“The Government is not convinced of the need to outlaw pre-employment disability-related enquiries”.

If I may give the Minister some wriggle room, that answers the wrong question. The Select Committee never proposed outlawing pre-employment disability-related inquiries, but said specifically in its report that that should be done on certain occasions and that questions about health and disability should be raised only at certain times.

I think that the Minister has enough scope to reach a sympathetic conclusion on this issue, which has acquired an enormous consensus, including disability groups, the Select Committee and business.

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

Welcome back for our last sitting, Mr. Benton.

I rise simply to vocalise Liberal Democrat support for the new clause, which was tabled by the hon. Member for Stroud. We think that the removal of barriers to employment is important. The new clause seems to be the simplest way forward. There are no legitimate arguments against such a move. It is not dissimilar to the idea behind no-name employment. It is about removing, in an informal sense, the first barrier, which people find so hard to overcome. It can be removed so easily and in a cost-free way.

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

Welcome home, Mr. Benton, for what will be a short stretch of further incarceration.

New clauses 20 and 21, which were tabled by my hon. Friend the Member for Stroud, would limit the circumstances in which employers can use pre-employment inquiries to determine whether job applicants are disabled or to ascertain the extent of their impairments. Employers would be allowed to ask for such information only to identify the need for reasonable adjustments, to facilitate the monitoring of disabled applicants, to support positive action in recruitment or to determine whether someone can perform a specific job-related function. He makes no apology for raising this issue again and neither do Opposition Members. I do not think that they should apologise. We discussed this area on 18 June, when debating amendments 207 to 212, and the new clause has come from that debate.

Our precise concern about the new clause is that it is about capturing information for the purposes of identifying the need for reasonable adjustment. For example, someone with a mental health condition may require more time at interview to consider questions and put together their answers. There is nothing to stop an unscrupulous employee using that information to discriminate unlawfully. We want to be careful, since one purpose of the Bill is to simplify and streamline protection, not to do anything that would be contrary to that aim. If we restricted the use of pre-employment inquiries to that set of closely defined circumstances and put tight conditions around their use, that could be an unwelcome area of complexity. There is obviously a balance to be struck in respect of disability and equalities rights.

I have seen the brief from the National AIDS Trust, the Terrence Higgins Trust and Rethink, the Work and Pensions Committee inquiry material that has been mentioned already and the research by the Chartered Institute of Personnel and Development, mentioned in the Work and Pensions Committee report, which found that 60 per cent. of employers said that they had disregarded applications—and, by implication, would do so—from people with drug or alcohol problems, criminal records or a history of mental health problems or incapacity. That is clearly blatant, direct discrimination that must be tackled.

There is already a mechanism for challenging direct disability discrimination in employment under the Disability Discrimination Act 1995, and those provisions are carried forward in the Bill, which provides for anyone who considers that information about their disability has been used to discriminate against them can challenge the employer through an employment tribunal.

There was some discussion about the burden of proof. The briefing from the NAT, Terrence Higgins Trust and Rethink acknowledges that current disability law provides that protection and considers such cases hard to prove, but it does not recognise the fact that legislation puts the burden of proof on the employer. Typically, the questionnaire procedure would probe why the job offer was not gone through with or was withdrawn. So that would, one imagines, make available the first step to the aggrieved party, which would show that there has been some discrimination. Then the burden of proof turns immediately to the employer to show that it has not discriminated. That is some element of important protection for disabled people.

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

I think that the Minister said at the beginning of her answer that some survey evidence showed that 60 per cent. of employers had withdrawn job offers for a number of reasons, including someone’s having a mental health incapacity. That implies that such discrimination is fairly widespread—although that may be a slight exaggeration—and is certainly not uncommon. Given what she said about employment tribunals, will the Minister share with the Committee any information about the number of successful and unsuccessful cases that are brought against employers for such discrimination in the employment process? If she is correct in what she is saying about the protection that is in place and about such discrimination being widespread, we would expect a significant number of cases at least to be brought to tribunal, if not brought to a successful conclusion.

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

No, I cannot directly help with that, but they are taken to tribunal; I am in no doubt about that. I cannot say what numbers were behind the 60 per cent. of employers who responded in that way to the Chartered Institute of Personnel and Development research. So I am afraid that I cannot throw better light on that matter at present.

It has been suggested in Committee that the use of pre-employment inquiries is limited in other jurisdictions. The US is one jurisdiction that is usually cited, and there pre-employment questionnaires are only allowed if they relate to the

“ability of an applicant to perform job-related functions.”

The note from NAT, Terrence Higgins Trust and Rethink contends that that ensures that it is easier to recognise cases where employers have discriminated against applicants, and it cites data from a 2002 research report that 16,000 discrimination claims are filed under the Americans with Disabilities Act of 1990 each year. We have looked at the US experience, but we have not been able to find any evidence to show that that specific element of protection is widely used, or that it has had any positive effect on the recruitment of disabled people.

We have also tried to make a comparison between the claims filed in the US and in this country. About 19,500 disability discrimination claims were filed with the US equal opportunities commission in 2007-08. In Great Britain, just over 5,800 claims—not necessarily specifically about this provision—were registered with the Tribunals Service. That is about one third of the US total, in a country with a population about one fifth the size. That does not suggest that a greater proportion of people are finding it easier to take enforcement action in the US than in this country.

However, we need to look at the Rethink survey quoted in the documents. It indicates that some 41 per cent. of mental health service users who were surveyed said that they were put off applying for jobs for fear of being discriminated against. An important duty that we all have is to try to accelerate the rate at which disabled people who want to work and who can work come into employment. Therefore, we must attend to this topic.

The position, as Opposition Members would see it, is that I responded positively to the debate on 18 June, and on 23 June—aha, a split in the Government—there was a less positive response from a different Minister. One of the happy things about the new public Bill procedure is that we take evidence, which is put into Hansard. It is readily available to assist in convincing people who are concerned that there is not a strong push from the employees’ side to ensure that the change is brought about, and that the business sector will resist it. The Hansard extracts that indicate a keenness for it from the employees’ side and, at the very least, a relaxed if not actively supportive approach from the employers’ side have been useful since 23 June. We will introduce a clause to deal with the problem on Report, if my hon. Friend the Member for Stroud will withdraw his new clause.

Photo of David Drew David Drew Labour, Stroud

With that delightful news, and in the spirit of consensus that I hope the Committee will finish with, I am delighted to  withdraw the new clause on the basis that the matter will come back on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Ordered,

That certain written evidence already reported to the House be appended to the proceedings of the Committee.—(The Solicitor-General.)

Question proposed, That the Chairman do report the Bill, as amended, to the House.

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

May I take this opportunity, before we put our final question, to thank you, Mr. Benton, for your fair and helpful chairing, and may I through you offer our thanks to Lady Winterton, who has been as fair, helpful and engaging as you have been? I add our note of thanks to your fellow Chairmen, Mr. Taylor and Mr. Bercow. There was an empty chair at some strategic point in this Committee, which both of them in sequence were able to fill, and we owe them a debt of gratitude for coming to our rescue at that stage. You, Mr. Benton, and Lady Winterton have ensured that the Bill has had a fair hearing in the evidence sessions and has been subject to proper scrutiny subsequently. That is no mean task, because it is large and wide-ranging.

I am most grateful to my hon. Friend the Parliamentary Secretary, Government Equalities Office, for his support in the Committee. I am also grateful to all Committee members from all parties for their contributions. I think that we have focused on the right issues and ensured that the most important have had a good airing.

We have discussed the Bill mostly in a constructive and positive way, while recognising that there are, as one would expect, different views on some of the many matters that it covers. These are important issues, and I am pleased that they have been treated with the seriousness, and given the attention, that they deserve. Occasionally, they have been given attention again and again, but they have none the less been treated in an appropriately serious way.

I thank the hon. Members for Forest of Dean and for Hornsey and Wood Green for their contributions and for leading on behalf of their parties. May I also seek your indulgence, Mr. Benton, to make particular fond reference to the hon. Member for Daventry, who has told us that he is retiring from Parliament at the next general election? Over the years, he has made a magnificent contribution to the cause of equality and particularly to the cause of the disabled. He has made an excellent and characteristic contribution in this Committee, and his comments have been very well informed and sensitive. We shall miss him, his intellectual rigour, his robust common sense and, overwhelmingly, his compassion.

I am grateful to the Clerks, who have supported us all in the Committee. I am grateful to the attendants, the police and to the Hansard writers, who do not always have a straightforward job. I also thank the officials from the Government Equalities Office and from other Departments that were involved in the Bill. They could  not have been more helpful to me, staff on the Committee, the Hansard writers and, from time to time, other members of the Committee.

I am pleased that we have been able to take forward our debate in a rational and positive way. The Bill has been improved by scrutiny and by a number of amendments, although they were all the Government’s. However, I have agreed to consider five matters: whether to include various fire and rescue bodies in the socio-economic duty, as proposed by the hon. Member for Hornsey and Wood Green; the clarification, if necessary, of the asymmetric nature of disability protection in clause 13(3); the issue around the case of Malcolm and whether we need to make the protection in clause 14 clearer; the case for representative actions; and, very recently, whether to limit the use of pre-employment disability questionnaires. That is a little survey of the work that I still have to do before we gather again on Report. I will seriously consider all those proposals.

This is a good Bill, which will advance the cause of equality, and I hope that it will help to drive culture change. It still has to go through one or two stages, but I could not resist looking back at a series of cartoons about equality that I have in my office. We have been advancing the cause of gender equality to a large extent, and one really nice cartoon shows a lady, whose hands are in the kitchen sink and covered with Fairy Liquid-type bubbles, saying to her little girl, “I have to keep my hands soft in case I ever get back to being a brain surgeon.” The second cartoon that caught my eye depicted a figure lamenting, “Seasonal work, long hours, low pay, no health and safety, no danger money, but they did say I could keep the dress”—it is the fairy on top of the Christmas tree. I am grateful to all participants and I look forward to our proceedings on Report.

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

Without repeating everything that the Minister has said, I would like to echo her thanks to you, Mr. Benton, and, through you, thank Lady Winterton, Mr. Taylor and Mr. Bercow—if we are still allowed to call him that now that he has been elevated to the Chair.

I thank the Clerks and the witnesses, whom I do not think the Minister mentioned. As she said, the evidence that they gave in our evidence-taking sessions was very helpful in some of our later deliberations. I would also like to thank those who have served us in the Committee room, including the Doorkeepers and the police officers.

I thank members of the public who have listened to our proceedings—sometimes with great interest and sometimes, I am sure, with less interest. I also thank all members of the Committee for our debates, particularly my hon. Friend the Member for Weston-super-Mare, who sadly is not here to listen to my thanking him for his work in supporting me on the Front Bench.

I echo the Minister’s comments about my hon. Friend the Member for Daventry, who, on this particular subject, brings a huge amount of wisdom and experience both in office and outside it. If he is not dragooned into being a member of another Committee, this may well have been his last Public Bill Committee before he leaves the House. That will be sad. He has conducted himself to the credit of the Committee and has brought a great deal of wisdom to our proceedings on a number of matters, for which I am grateful—as is the hon. and learned Lady.

I also thank my hon. Friend the Member for Henley, who for most sittings has been splitting himself between our proceedings and those on the Finance Bill, and has acquitted himself well. Last, but not least, I thank our Whip, my hon. Friend the Member for Billericay. We must never forget the Whips or they will certainly never forget us.

I thank the Minister for the way in which we have had a good-natured and fruitful debate on most occasions, apart from when I usually spoilt them by referring to Baroness Thatcher, which seemed to rile the hon. and learned Lady. Apart from that, she has dealt with the Committee in an even-handed and thoughtful way, and I echo her thanks to her officials who, on occasions, have been very helpful to the Opposition.

I also thank the hon. Member for Hornsey and Wood Green, who speaks for the Liberal Democrats on such matters. Finally, I thank the hon. Member for Glasgow, East, who speaks for the Scottish National party, although on many occasions, as he made clear, not on religious matters, when he spoke for himself. I thank you again, Mr. Benton. We are almost there.

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

I wish to say what a pleasure it has been to serve under your chairmanship, Mr. Benton, and through you I convey my thanks to Lady Winterton. I thank the Clerk and the officials who have helped to make our proceedings so pleasant and smooth running. The hon. Member for Daventry has added wisdom, and I often found that we were speaking in a similar manner on similar issues. That may or may not please him—I have no idea—but he brought a great deal of experience to the Committee.

I thank my excellent colleague, the hon. Member for Oxford, West and Abingdon, who has scrutinised in great detail, with great wisdom and commitment, parts of the Bill, which after all is the job of the Opposition. Despite the occasional strange look on the faces of members of the Committee, he has done a remarkable job. The Solicitor-General has omitted one thing. We have had a very good debate and I am very pleased with the matters that she will take away to look at, and perhaps bring back.

I should be very interested in, and look forward to hearing about, the results of the work of the Department for Work and Pensions on discrimination in the workplace. I also thank the hon. and learned Lady for her tolerance and patience on some occasions and for conducting the Committee. I have not taken part in many proceedings in Committee, as is probably apparent, but it is quite a task for a person to be on her feet throughout proceedings in Committee on demand and I pay tribute to her for that.

I pay tribute to the hon. Member for Forest of Dean, who picked arguments extremely well, and also to the hon. Member for Glasgow, East, who speaks for the Scottish National party for some of the time.

As we are on jokes, some members of the Committee might not be aware that, in a previous life, I was a designer and an illustrator. When I joined the Liberal Democrats, I did some cartoons about equality and fairness, one of which showed a high chair with Paddy Ashdown next to it and a woman—it could have been me—saying, “But, Paddy, this is not what I meant by a safe seat.” A second cartoon was about a little child tugging his mother’s skirt saying, “Mummy, mummy,  why is daddy never here?” to which the mother replied, “There, there, darling. He is out campaigning every night for fairness and equality.” I thank the Committee.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I would not have risen to my feet, but saying a word on behalf of the Back Benchers collectively might be appropriate, Mr. Benton, not least because for various reasons I probably have had more to say than most of them—not for the first time—and for that I apologise to the Committee.

I want to record that everything that has been said from the Front Benches has been entirely appropriate, accurate and fair, which is not always the case, but was on this occasion. I include all the participants, from the Solicitor-General, through my hon. Friend the Member for Forest of Dean and the rest of our Front-Bench team, to the Liberal Democrats and those who have served in silence, but with interest and courtesy, as well as all the rest. It has been very welcome.

I wish to respond to the exceptionally generous remarks of the Solicitor-General and of the hon. Member for Hornsey and Wood Green. In the light of those remarks, I am inclined to think that it is possibly just as well that I am retiring, because I am not sure that they would have advanced my parliamentary career. In a sense that does not matter.

I advert, although I do so reluctantly, to my comment on the conduct of the Bill on “The Westminster Hour” on Sunday night—those who have not heard it can still hear it on iPlayer. I made the point, without being invidious, about the distinction between those Bills in which there is a common spirit and a Minister who is prepared to lead things into improvement, and those that are about doing the press release, drafting the Bill and so on. The Bill has been one of the former. It is very much better for Parliament if it can do that. I still think in a funny and rather old-fashioned way that legislation matters, that it is better to get it right than half right and that it is better to talk about it than to leave it unconsidered.

I have enjoyed the Committee. To finish, my hon. Friend the Member for Forest of Dean referred to archers this morning and, having a Welsh wife, I have a certain interest in that profession as well. I recall that, after a much more contentious Committee on the National Minimum Wage Bill, I concluded my remarks when I was in his post by referring to Henry V before Agincourt and saying:

“We would not have missed it for the world.”—[Official Report, Standing Committee D, 17 February 1998; c. 1037.]

Photo of John Mason John Mason Scottish National Party, Glasgow East

I thank you, Mr. Benton, and through you Lady Winterton, for looking after us over the past 20 Committee sittings. You have managed to keep us from straying too far, as when we seemed to get bogged down in discussing Scotland in one of the debates.

The Committee is only my second Public Bill Committee as I come towards the end of my first year as a Member. I was extremely impressed by the Solicitor-General, who handled everything herself; on my previous Bill Committee, with the hon. Member for Forest of Dean as well, there were I think four Ministers, who all took turns. I assumed that that was the norm, so I was  impressed with the Solicitor-General—with her colleagues, too, with some of whom we had robust debate, but we managed to avoid being too personal.

I also thank the hon. Member for Forest of Dean and his colleagues for their helpfulness. The hon. Member for Oxford, West and Abingdon and I, in particular, seemed to have a few intellectual jousts or whatever the word is. However, we managed to keep a reasonable tone throughout the debate, and discussing some of those issues, including religion and so on, is good.

The Bill is extremely good, the vast majority of it my party and I are supportive of, and we look forward to it reaching the following stages.

Photo of Joe Benton Joe Benton Labour, Bootle

First, I thank the Minister, the Opposition spokesmen and all Committee members for the courtesy extended at all times to the Chair. All the nice remarks will be passed on to Lady Winterton, Mr. Speaker and David Taylor. Thank you all very much for that.

I also thank the learned Clerks and all people who have contributed to the smooth running of the Committee, which has been interesting. I have enjoyed it—very informative.

I would like to conclude with my own appreciation of the hon. Member for Daventry. As he was speaking and as the Solicitor-General was making her comments, my mind went back many years ago to my arrival in the House. I soon became a member of the education team and had the good fortune to work on a further education Bill, on which the hon. Gentleman was further education spokesman. I was immediately impressed by his wisdom and by his contributions to that Committee. That has not changed much over 18 years. His contribution, which he still makes and which has been indicated clearly during consideration of the Bill, has been deep, thought-provoking and positive. I add my compliments to you, sir, and wish you all the best for the future. You will be a loss, although we shall still remain politically divided. Thank you all.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

Committee rose.