Deregulation Bill

Lord Ouseley Excerpts

Tuesday 21st October 2014 Lords Chamber

[Lord Curry of Kirkharle]

The noble Lord, Lord Rooker, knows perfectly well that I am not recommending that.

This is a small measure, a power that employment tribunals may or may not exercise. I am happy to say that as an employer I have never been subject to this but for those companies I am aware of, the lesson they have learnt through having broken the law and failed the tribunal process is in itself sufficient for them to improve their behaviour and the way they treat their employees afterwards without this power needing to be exercised.

[Lord Ouseley (CB)]

My Lords, the emphasis in the debate so far has been very much on the interests of the employer and business in seeking to remove as much red tape and as many burdens as possible—and that is understandable. Clause 2 and what it means may be small beer for the employer and a company, because there are now so few discrimination cases in which individuals can clear all the hurdles, but it is not small beer for those individuals. Many employees feel that discrimination in the workplace is something that they cannot do very much about. The hurdles which have been placed in front of them are such that few now get to the employment tribunal; they are not even able to afford to lodge their cases. If you are a cook or a cleaner, you are generally a low paid and vulnerable employee. Employers feel sufficiently empowered as to exploit that situation. We should recognise that this may be something that it would be good for employers not to have as a burden but we should also recognise that it is not a great burden when you consider the volume of cases that get to that point. We are talking about employers who have been found guilty of discrimination.

If someone has gone to the trouble of challenging unfair treatment in the workplace, gone through some form of internal process perhaps, paid their money and gone through conciliation, cleared all the other hurdles to get to the tribunal and won their case, we should be concerned that the tribunal might not be able to make recommendations to help the employer who is guilty of discrimination to put things right in a way that would make a difference to how employees are treated. It is about sending out those messages. While the Government have been keen to remove burdens from employers, they should certainly not advocate that employers go on being unfair to their employees. It is therefore important that Clause 2 should not stay in the Bill. That would enable us to give confidence to employees that, although there are all those hurdles, those who succeed in getting to the tribunal and win a case will be dealt with in a way that enables them to be treated fairly as employees.

I want to give an example of what I am getting at by citing the recent case which Police Constable Carol Howard brought against the Metropolitan Police. That case illustrates the folly of allowing Clause 2 to remain in the Bill. The tribunal found that the respondent, the Metropolitan Police Commissioner, directly discriminated against PC Howard because she is a black woman. It also held that the respondent victimised her because of her complaints of discrimination. She had had the temerity to lodge a complaint, have an internal process and then go beyond that to the employment tribunal—how dare she? She was harassed and victimised; she was even arrested and put on bail for more than a year during the process of the case and subsequent to the finding of discrimination.

What was worse, the tribunal found that the respondent had a policy of deleting findings of discrimination in its own internal grievance procedures, known as the “fairness at work” process. That is some fairness at work. You have an internal investigation. If any aspect of discrimination is found, the investigating fairness-at-work officers are told, “You have to remove that, delete it”. What sort of fairness at work process seeks to hide the truth of discriminatory activity and to mislead the tribunal about its own internal findings? Those distorted and doctored internal findings from a flawed process would never have come to light had not Carol Howard tenaciously, while being victimised and harassed, fought to get the disclosure of those internal reports, which the Metropolitan Police resisted strenuously but finally had to do. Had she not done so, the Met and its expensive lawyers would have got away with covering up extensive discrimination. Is that justice? Is that fair? Is that what we want?

As I said, it is understandable that we seek to unburden employers and companies of regulation that seems unnecessary—this may seem unnecessary because few people are making it to the end of the process—but the context I have just described shows that we have reached the point of serious imbalance in the process of seeking remedies through employment tribunal and discrimination cases, which enables employers, should they choose to do so, to ride roughshod over their employees’ rights when it comes to unfair and unlawful discrimination. Clause 2 adds insult to injury. The only employers who would want it are those who have something to hide or those who want to continue unlawfully and unfairly to discriminate against their employees.

[Lord Avebury (LD)]

My Lords, I imagine that in the case of the police officer who successfully made a claim against the Metropolitan Police there was no recommendation by the tribunal. It might have been thought to be unnecessary in such a case because it received such widespread publicity that there would be pressure on the Metropolitan Police to declare what changes it had made in its policy so that similar cases of discrimination did not happen in future. However, we do not know what was the case in the 28 other recommendations, where the media may have been less inclined to look into the circumstances and focus attention on what sort of reforms were needed to the procedures that were the subject of the complaint against the violators of the Equality Act.

Have the Government looked at the cases where the 27 recommendations were made? With those accepted by the employers, which cost them a mere £2,000 on average, the procedure was obviously helpful to the employer. We are talking not about an additional burden but something that assisted the employer to avoid similar tribunal cases in future. If the argument behind the whole of the Bill is about the burden on employers, we are talking about the wrong subject here, because we are removing a burden by allowing the recommendations to be made, particularly when employers implement them. I would like my noble friend to say what happened in the other 19 cases where there was no response to inquiries by the EHRC. Would it not be helpful if your Lordships could know whether those employers also found the recommendations helpful? If so, and 100% of the 28 recommendations were accepted by employers and implemented at fairly trivial cost, surely that is a very strong argument for retaining the powers. Even if observations substitute for recommendations, they do not have quite the same moral force. If my noble friend can enlighten me on the other 27 cases, that would be very helpful to your Lordships in reaching a decision.