Enterprise and Regulatory Reform Bill

Baroness Turner of Camden Excerpts

Monday 14th January 2013 Grand Committee

[Baroness Turner of Camden]

My Lords, I put my name to this question when I first read the Bill and I have recently had some contact with the TUC in regard to this particular clause.

As we have just heard, Clause 57 repeals Section 40 of the Equality Act, which makes an employer liable for repeated harassment of their employees by third parties, such as customers, clients or service users. The liability is triggered only if an employee has suffered such harassment on three or more occasions and the employer knew of the previous incidents and had failed to take reasonable practical steps to prevent it recurring. This is an important protection. I am opposed to the repeal unless the Government can justify it. I do not think that they can.

Trade unions have provided us with many examples of their members in publicly funded and service sector jobs, such as care work, teaching, and rail and bus transport. These people routinely suffer prejudice-based harassment in the course of their work. The introduction of Section 40 of the Equality Act led to a step change among some employers, with actions undertaken to make clear to service users that harassment of their staff would not be tolerated.

The one tribunal case of which I am aware was brought under Section 40 and demonstrates the importance and workability of this provision. A care worker in a residential care home suffered repeated sexual harassment by a resident. When she complained to her employer she was told just to be patient and to wait for the resident to stop touching her. The tribunal, however, held that the employer could have taken a number of reasonable steps to protect the care worker, such as ensuring that she was always accompanied by another member of staff, speaking to the resident’s social worker or psychiatrist for advice, or adjusting the rota to minimise contact with a particular individual offering this sexual harassment. That is an example where, quite properly, this provision in the legislation worked.

People should be able to work in an environment in which they are free from harassment, whether from fellow workers, managers, employers, customers, clients of their employers or others who come on to their employer’s premises. After all, the Government accept that it is necessary to provide protection from harassment in relation to fellow workers, managers or employers, so why should employees be unprotected from harassment by customers, clients of their employers or others who come on to their employer’s premises?

Furthermore, we should bear in mind that many public sector workers face harassment from members of the general public, often from those with grievances. For example, I remember going to an office where a lot of advice on social benefits and so on was provided. The staff there were quite concerned about the way in which members of the public with grievances would make threats against them. That was a government office and steps to protect the staff there were taken. Why should that not apply in the private sector? Why should we not ensure that people acting often on behalf of public issues, sometimes on legislation that we in Parliament have introduced, are protected from members of the public who feel that they have grievances? I hope that the Government can justify what they are doing but I do not think that they can. Therefore, I oppose inclusion of Clause 57 in the Bill.

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[Baroness Turner of Camden]

My Lords, originally I put my name down in support of the clause not being included. As we have heard, Clause 58 repeals the statutory procedure for obtaining information to support discrimination proceedings under the Equality Act. The TUC opposes this clause. This procedure has been a vital part of ensuring access to justice for victims of discrimination since our first sex discrimination and race relations Acts were passed more than 35 years ago. Legislators back then understood just how difficult it would be for an individual to enforce their rights without access to information about how others were treated in a similar situation or statistics on the impact of policies or practices of different groups. This is information that the employer holds, hence the importance of questionnaires.

In trade unions’ experience, these questionnaires help individuals to access evidence at an early stage, which leads to an early clarification of the issues involved and, if the case proceeds to tribunal, greater efficiency in the tribunal proceedings. The questionnaires have the added benefit that they may prevent claims going to tribunal because they often lead to early settlement of any potential claim or they produce evidence that shows that discrimination was not actually the reason for the individual’s treatment. Therefore, it seems to me that these questionnaires are of value to the employers as well as to the employees. I have no idea why the Government should think it a good idea to exclude them in future.

The Discrimination Law Association, whose members comprise lawyers and people who work on behalf of trade unionists and workers, has said that without the kind of information that individuals can obtain only from written questionnaires, in many cases it would be almost impossible to prove discrimination. It should be noted that 83% of those responding to the consultation that proposed repealing this provision, opposed the repeal, including unions, equality NGOs, the judiciary and members of the public. This seems to be a really strange stance for the Government to take. This provision helps both sides in a dispute and I cannot really understand why the Government should be proceeding against it, when it is against the recommendations of the TUC and the unions who are very active in this area.

[Lord Ouseley]

My Lords, I support the question and seek to clarify the context in which I offer support. It is one in which we have seen light-touch regulation being promoted by the previous Government and by this Government to get us to a point where, as has already been stated, we want employers to be in a position to hire and fire as they wish. That in itself will add greater discrimination for those who are likely to be discriminated against, on no reasonable basis.

The context is also one in which we see increasing tribunal fees being imposed along with the cutting of legal aid and funding for advice agencies to help individuals, who are relatively powerless in seeking to get redress if they feel that they have been discriminated against in employment. The situation with discrimination is that the employer always has the whip hand and the employee has very little knowledge, other than a feeling of being treated unfairly. Sometimes it is with evidence but they are unable to have information which places them in a position where they can argue and justify their claim for compensation.

The discrimination often occurs, in my view, for three main reasons. First, employers are lazy and it is a very quick fix to get rid of someone. Secondly, it is incompetence or, thirdly, it is just straightforward prejudice and bias. Those are the three main areas that appertain to discriminatory claims. The victim can move forward only with evidence and the respondent would like to be in a position of not having to disclose any information.

Usually, in my experience, most employers—particularly small employers—have no policies or procedures. Of those who have, the moment that you go back to them to try to explain that they may have breached anti-discrimination legislation and to ask them whether they have complied with their procedures, if they have any, they usually find very quickly that they want to come to an arrangement to conciliate or settle with a claimant. That is because they recognise that they are being challenged on a basis which has justification and that they have clearly failed to follow their own procedures, where they exist. In the case of very small employers, hiring and firing takes place very informally. There is usually a lot of nepotism, with family and friends being involved in the employment within small firms.

That said, it is quite important that we recognise that, notwithstanding all that I have mentioned about context, this repeal has come forward based on inaccurate and misleading information. There is no evidence of the burdens that have been created for employers. The original purposes of the questionnaires, from the Sex Discrimination Act 1975 and the Race Relations Act 1976, have been fulfilled because they enabled assessments to be made on the basis of facts and information provided. That enables that assessment to determine the strength or weakness of a case and may seek to persuade a complainant to withdraw because their case is so weak, or at least to put pressure on an employer to demonstrate that they are in an unsustainable position of seeking to defend the indefensible.

Evidence has shown throughout the years that the use of the questionnaires has helped us to reduce the costs and the burdens on both employers and employment tribunals. Without a questionnaire, a claimant could bring proceedings themselves and apply for disclosure or further information and such an order, when made, will bring considerably greater burdens on an employer. That is something that we should consider as a counterbalance to getting rid of the questionnaire—the real burdens that would be placed on employers if that process was pursued.

It cannot be overstated how crucial statutory questionnaires are to enable people to prove genuine discrimination claims. They offer a structured, time-bound way for a potential claimant to find out the employer’s or service provider’s reasons for taking certain action, and to gather evidence that the claimant cannot access in any other way. Without this kind of information, which individuals can obtain only through written questionnaires, in many cases it will be almost impossible to prove discrimination or a breach of an equality clause. The many individuals who have approached me about cases of alleged discrimination are at their wits’ end and give up in frustration. This will put us back many years, to the situation that preceded the Sex Discrimination Act 1975 and the Race Relations Act 1976.

Questionnaires are not a problem for employers who have nothing to hide. They are alerted at the earliest stage to the strengths and weaknesses of a possible discrimination or equal pay claim and generally take action swiftly to settle the case if need be. Conversely, repeal of the questionnaire procedure will mainly serve the interests of employers or service providers who do not wish to expose their potentially discriminatory policies and practices or cover up the misdemeanours of individuals in their employment. That is why it is important that we consider again whether this repeal has any justification and whether there is no better way in which to enable us, if necessary, to modify the questionnaire where it may be seen to be excessive and reduce it in a way that employers may see it as less burdensome, if that is the case, as a way of retaining it. In that way, we can ensure that we maintain the basis of helping to determine which cases have no basis to go forward to an employment tribunal, and persuading those complainants to withdraw, and seeking to impose the maximum pressure on those employers to settle with those complainants.

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[Baroness Turner of Camden]

My Lords, I have listened with interest to the exchange that we have just had, but it really does not make much difference to the way I feel generally about Clause 61. If the Health and Safety at Work etc. Act 1974 is amended in accordance with this clause, the laws relating to workplace health and safety could be returned to where they were almost a century ago. Since a landmark case, the law on claiming compensation for workplace injury where the employer has breached his statutory duty has been very clear. If this change is implemented, the law will return to being complex and uncertain. It will be more difficult and more risky for people who have been injured just because they went to work to claim proper redress. More meritorious cases will be lost, which means that the burden of caring for those injured workers will be borne by themselves, their families or the state, rather than by the wrongdoer. The litigation process will be more protracted and expensive, which is exactly what the Government are trying to avoid. The costs of bringing claims will inevitably increase, which means that there is every chance that insurers will increase premiums—something which I think that the Government are also anxious to avoid.

Currently, Section 47(2) of the Health and Safety at Work etc. Act states:

“Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise”.

In practice, this means that if a worker is injured and he can prove that the employer has breached his statutory duty, he is entitled to claim compensation. This is the basis on which workplace injury claims are usually brought. The law on this is clear, it is well understood by all parties, and legal appeals in this field have been almost unheard of in recent years. It has also been the basis upon which health and safety legislation has been drafted and passed by Parliament, with a dual purpose of setting out the criminal law, and giving people injured as a result of breach of that law a right to compensation.

Without this legal provision, the injured person would be obliged to rely only on the law of negligence to claim compensation. However, the law of negligence is much more complex, as the burden of proof lies with the injured worker, when it is the employer who holds all the knowledge about the workplace systems, tools, procedures and so on. This means that much more evidence has to be gathered, more witnesses interviewed, and more documents provided if the case is to succeed. This is time consuming, and can be a very difficult situation in which to succeed, because the guilty employer holds all the cards.

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[Viscount Younger of Leckie]

I have certainly noted the point that the noble Lord has made. I was clearly of the understanding that that was the reason but I will certainly revert and check, given the dates that I have just received from him.

[Baroness Turner of Camden]

In responding to the Minister, I begin by thanking everybody who has participated. We had an excellent debate, drawn from a lot of experience and expertise. It really has been very good indeed, and I am very grateful to everybody who has contributed. However, I am sure that the Minister will not be surprised to learn that I do not accept very much of what he has got to say. I still think that Clause 61 should not become law. I cannot understand why he says that it will help good employers. A good employer is helped by the existing legislation, and if the Government are concerned to improve health and safety at work arrangements, then they should be supporting the Health and Safety Executive instead of diminishing its resources. If they think they need to do more on health and safety, the HSE is highly respected and ought to have more resources, rather than fewer—which is what the Government’s present policy seems to be.

I really do not accept a great deal of what the Minister has said today. I cannot understand why he is going on about compensation culture. I have made some contributions about my experience in that situation when I worked for an insurance company. We have been talking about claims by employees which often take years to settle, particularly if it is a death; frankly, what sort of compensation culture is that? There is a case for looking at aspects of our legislation, but certainly not via this clause, which takes away some of the support that people currently have in the area of health and safety at work.

I am not at all in favour of what the Minister has said. Of course, in Committee we do not have votes. However, I can assure the Minister that this will be back again at Report, because a number of us feel very strongly about it. I certainly do and I am sure that my noble friends do as well. He has not heard the last of this. In the mean time, I do not press this question.

Clause 61, as amended, agreed.