Deregulation Bill — House of Lords, 2015-02-03
Topic: Civil Rights
Colin MacKenzie Low (Crossbench, Unknown): My Lords, I shall move Amendment 3—which is in my name and the names of the noble Lords, Lord Lester and Lord Hunt, and the noble Baroness, Lady Thornton—in the absence and at the request of the noble Lord, Lord Lester, who is currently recovering from heart surgery. I am glad to be able to report that he is doing well, but there would be no better "Get well soon" message that we could send him than to accept his amendment today Clause 2 amends Section 124 of the Equality Act 2010 to remove the power of employment tribunals to make recommendations to employers in cases where there has been a finding of unlawful discrimination, harassment or victimisation but the claimant no longer works for the employer. These are commonly referred to as "wider recommendations". Its effect will be that, in future, an employment tribunal will be able to make a recommendation aimed at preventing or reducing the adverse effect of the discrimination on only the claimant in the particular case. In 2013, a BIS survey of employment tribunal applications found that only 16% of claimants in discrimination claims were still working for the employer against which they made their claim. This means that the effect of Clause 2 will be that in 84% of discrimination cases the employment tribunal will no longer have power to make recommendations to employers to take steps to improve their practices to avoid discriminating against other employees. This will be a significant reduction in the powers of employment tribunals Amendment 3 would remove the provision in the Bill which takes this power away from tribunals, thus preserving employment tribunals’ current power to make wider recommendations following a finding of unlawful discrimination. The power to make wider recommendations is of strategic importance for employees and employers. So far as employees are concerned, even when, as in the great majority of discrimination cases, the employment relationship has broken down and the employee has left the employer’s employment, they can help prevent or reduce future discrimination and are an effective way of tackling systemic issues and practices. So far as employers are concerned, recommendations are an important way of helping employers who have discriminated to improve their practice. An employment tribunal hears evidence about the circumstances in which the unlawful discrimination occurred and is thus well placed to identify steps the employer can take to rectify any discriminatory practices. Recommendations also offer an important means by which employers can learn from their mistakes and help avoid future discrimination claims The power to make wider recommendations is criticised on four grounds: first, that they impose a burden on employers; secondly, that the power is little used; thirdly, that there is no evidence that wider recommendations are effective in changing employers’ practices; and, fourthly, that there is no means of enforcing wider recommendations As regards burden, the impact analysis attached to the Government’s consultation on reform of enforcement provisions in discrimination cases suggested that this provision, when operating as expected, will affect only between 0% and 3% of employment tribunal cases, which, it suggests, is likely to result in 17 cases a year. It is hard to maintain that this will constitute an undue burden on employers and business. Moreover, by limiting the cases in which wider recommendations could be made to those where the discrimination, harassment or victimisation has a serious adverse effect on persons other than the person bringing the claim, Amendment 3 addresses criticisms that the wider recommendations power imposes a disproportionate burden on business On the point that the power is little used, perhaps it is too early to tell, as it has existed only since 2010. However, on the basis of a review of over 400 employment tribunal judgments issued between December 2012 and September 2014, the Equality and Human Rights Commission concluded: "Given the benefits to employers and employees which can result from wider recommendations, concerns that the power is little used should be addressed by encouraging employment tribunals to actively consider whether a wider recommendation should be made … not by removing the power", entirely. As regards effectiveness, recommendations mainly concern the provision of training for managers and a review of policies or procedures. I might draw attention to a number of cases, but in order not to detain your Lordships too long I will mention just a couple. One case concerned where a disabled woman was denied a reasonable adjustment that should have been made for her. The employment tribunal ordered that within six months, "line managers and human resources are to receive adequate training on understanding and implementing the Respondent’s disability leave policy and to ensure that the policy is properly communicated to employees as is appropriate in the circumstances" In another case, the Ministry of Defence was found liable for both direct and indirect discrimination in its handling of the promotion prospects of an RAF group captain. The employment tribunal commented that it was shocked that senior personnel were not fully competent in, nor apparently had they been trained on, codes of practice in respect of the Equality Act or the predecessor legislation. The tribunal made a number of recommendations including: first, that all personnel involved in promotion and recruitment should have training in equality and diversity as set out in the Equality Act and the code of practice; secondly, that decisions of the appointments and promotions board should be recorded in writing, with reasons clearly explained and these should be retained for at least 12 months; and, thirdly, that the resolution of the service complaints procedure should not be unilaterally suspended pending the outcome of an employment tribunal complaint. I submit that those are not inappropriate recommendations for an employment tribunal to make with a view to improving the employment practice of the employers with whom it is concerned, and that the effectiveness of its decision would be substantially diminished if it did not have the power to make such recommendations On enforcement, it is perfectly true that the employment tribunal does not have power directly to enforce the carrying out of wider recommendations. However, the Equality and Human Rights Commission reviews all employment tribunal cases where there have been findings against employers, prioritises cases where there have been wider recommendations and works with employers to secure the implementation of such recommendations Finally, it must be said that the Government’s approach on these matters is not entirely consistent. From 1 October 2014, the Equality Act 2010 (Equal Pay Audits) Regulations 2014 require an employment tribunal to order an employer who loses an equal pay claim to carry out an equal pay audit unless specified exemptions apply. These audits require, among other things, that employers develop an action plan, with a view to ensuring that they do not fall foul of equal pay policies in the future. I submit that this is the better approach, the right approach and the approach that should be similarly followed with regard to wider recommendations. Precisely the same considerations apply, and it is hard to see why tribunals should not have the sort of powers in relation to the making of wider recommendations that they have in relation to the ordering of equal pay audits. This matter was considered in Committee when an amendment to delete Clause 2 entirely was judged an amendment too far and was rejected. However, I submit that the more surgically crafted amendment of the noble Lord, Lord Lester, deals with the issue that we are considering in a more proportionate way and, as such, is deserving of your Lordships’ approval. I beg to move.