Enterprise and Regulatory Reform Bill

Lord Ouseley Excerpts

Monday 4th March 2013 Lords Chamber

[Lord Ouseley]

My Lords, I support this amendment in the name of the noble Lord, Lord Lester of Herne Hill. I do so on the basis of comments that I made in Committee, which I will try not to repeat while trying to contextualise this Bill and where the equality aspects sit in it. Clearly, much of what the noble Lord has already said explains the difficulty that victims of discrimination have in proving discrimination, with the whip hand being with the employer and with the information often being inaccessible.

The Bill itself has an underlying theme. I feel that it is to allow employers to hire and fire without any fear, weakening employees’ rights and reducing the support and representation available to victims of discrimination in the workplace, while making the EHRC weaker. It transfers many of its resources and functions to the GEO, where the Government will have greater control. The Government have cut the previous grants programme and diminished the helpline. They are converting the EHRC into some form of strategic think-tank, which is unrelated to the reality and everyday struggle of disadvantaged and disaffected communities across the country. It is among those groups that we find many of the less powerful victims of unlawful discrimination. In addition, there are closures of advice and law centres, with legal aid being denied and costs now being associated with employment tribunal cases. That is the severe context in which we have to look at the attempt to withdraw the questionnaire procedure.

This is being done largely on the basis, as argued by the Government, that it is a burden on employers to have to respond to questions being asked by employees about their treatment. Employees have to get that information to determine whether they have a basis on which to go forward with a case of unlawful discrimination. Without that information, they literally have no basis for doing so. The basis of my support for this amendment is my experience of working with and against employers who want to get rid of their employees. Many employers clearly support the reform put forward here—getting rid of the questionnaire—because they do not want to be accountable for their actions or to respond to questionnaires in which they have to provide explanations for their actions. They regard these questionnaires, as the government side have argued in taking this forward, as a nuisance.

Employers also find some of the questions being asked challenging. That is not simply because they are seen and interpreted as a fishing exercise but because unless those questions are asked, employees who have a feeling that they have been discriminated against or an awareness that they have been treated unfairly, and probably unlawfully, are unable to carry forward their grievance. They cannot get redress without assistance, which I have already mentioned is vanishing, and certainly without the information that they need. Some of the questions asked, which may bring forward information or are sometimes not answered, are exactly what is required to help employees understand the nature of the discrimination they have suffered or understand the explanation for why they have been treated in certain ways that render it impossible for them to succeed in a case before a tribunal.

As the noble Lord, Lord Lester, pointed out, 83% of those who responded to the consultation opposed the repeal of the questionnaires. We have had submitted to us the EHRC’s position which recognises the usefulness and importance of retaining questionnaires. Indeed, we have had a submission from the Discrimination Law Association, which provided examples of the usefulness of the questionnaires in helping both employees and employers. Practitioners right across the country have contributed to that. I hope that the Minister will recognise that the case has not been made, with evidence, of how questionnaires are a burden for employers, other than that they see them as a nuisance and an irritant. In fact, in the name of justice, equality and fairness, and to enable the existing legislation to be undertaken and enforced effectively, as it has to be, the usefulness of the questionnaires should be retained for that purpose.