Enterprise and Regulatory Reform Bill

Lord Ouseley Excerpts

Monday 14th January 2013 Grand Committee

[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.

[Lord Low of Dalston]

My Lords, I came along this afternoon to support the opposition to Clauses 57 and 58 on the part of the noble Baroness, Lady Thornton, but I hung back in relation to Clause 57 because I was waiting for the noble Lord, Lord Lester, to intervene, as I knew that he had views on these matters—so I missed my turn. However, now that I know that the noble Lord is not here this afternoon, I shall say just a few words very briefly on Clause 58, although I fear that I shall not be able to speak with the same unrivalled knowledge and expertise on the subject as the noble Lord would have brought to the matter. But perhaps we will be able to hear from him in a later point in the debates on this Bill.

I was fourth on the list of those who put their names to this question, so I shall speak very briefly, but there are a couple of points that I would like to make. The Government have argued that the questionnaire procedure imposes considerable costs on business of nearly £1.5 million a year, with questionnaires becoming overlong and technical. However, research carried out by the Government Equalities Office has found that only 2% of private sector employers have had to complete a questionnaire in the past three years and most of those who did so agreed that responding to it had been straightforward. That does not sound like a great burden on business to me.

There is a great deal of concern out there in the legal profession about the prospect of the questionnaire procedure being done away with because, as others have indicated, it has been a very valuable part of the procedure in discrimination cases in enabling those cases to be dealt with more smoothly and expeditiously. As an example of this concern, the president of the Employment Tribunals Service, in responding to the Government’s consultation, went so far as to say:

“We further consider that the questionnaire procedure is very much in line with the pre claim resolution processes that are currently a consideration in primary legislation before Parliament. To remove this assistance to such a facility seems to the Employment Tribunal judiciary to be contrary to the overall policy of early resolution of claims or claims not proceeding where there is little merit. The proposed amendments to the Equality Act are considered by the Employment Tribunal judiciary to be retrograde steps in the administration of discrimination claims”.

That is a very strong statement coming from a very senior judicial official. The Government would be extremely unwise not to take very seriously advice coming from that quarter. Bearing in mind that kind of advice and the evidence to which I referred, which suggests that it is not nearly so much of a burden on business as the Government make out, I very much hope that the Government will think again and not proceed with Clause 58.