1976 Equal Treatment Directive

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Mr. Kelvin Hopkins (Luton, North): The report suggests that there is a three-month period from the end of October 2001 to consider proposed amendments. From what my hon. Friend the Minister said, I wondered whether we had missed any consultative deadlines?

Mrs. Roche: No, we have not. We are just about to go into the period of conciliation, which will probably start from 21 February. We have been fully engaged in the process, and bodies such as the EOC have been considering it carefully. I know from my discussions with the chair of the EOC and her deputy that they are fully aware—this touches on the point raised by the hon. Member for Meriden—of the need to provide advice and information to employers.

It may well be that my hon. Friend the Member for Luton, North (Mr. Hopkins) referred to the consultation period that is currently underway on the two directives under article 13. That consultation is proceeding, and we would be interested in receiving representations from MPs on that.

Mr. Robert Walter (North Dorset): I share the concern of my hon. Friend the Member for Meriden about getting one's head around the bundle. The starting point, which was the 1976 directive, was the last item in the bundle, and the amendments seem to appear twice, almost at random, in the middle.

I want to ask the Minister about amendment No. 12, which concerns victimisation. It is before the European Parliament, but the Commission has not accepted it on the grounds that workers' representatives are ''employees'' and covered by the common position. The UK Government are not

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opposing the amendment and I can see why. Those who would act as advocates for people who had been discriminated against under the provisions of the directive might not be employees, as the Minister suggested in her introduction. They might be trade union officials, representatives from a citizens advice bureau or lawyers. They should be protected. As the deliberations of the Council of Ministers are not conducted in public, would the Minister tell us what line she is likely to take on the amendment?

Mrs. Roche: The reason that the amendment does not present a problem for us is that our legislation already covers it. It is interesting that we in the UK, unlike other member states, have a long history of legislation in that field, as we do in race relations. We will, of course, listen to what other member states have to say about definitions, but the amendment would not cause us any difficulty, and that is what we will say.

Mr. Hopkins: My hon. Friend mentioned the EOC in her opening remarks. It is obviously involved, but is it happy with the British position on the various amendments?

Mrs. Roche: Although I have had quite a few meetings recently with the EOC, I have not had detailed discussions on every point and I would not want to put words into its mouth. It appreciates the balance that we are trying to achieve. We want effective regulation and to bring it up to date, but we do not want to place excessive burdens on employers so that the system becomes unworkable. We see very much eye to eye with the EOC on the creation of a culture where all companies appreciate that the way to ensure better productivity is by having a diverse work force and gender equality. The EOC is working closely with industry to bring that about.

Mrs. Spelman: I endorse what the hon. Member for Luton, North said about the importance of finding out what the EOC position is. If the Minister does ask the EOC for its views, it would be interesting to be informed of them.

The Minister touched on the question of clarity of definitions. Definitions are one of the problems. In working my way through the bundle, I am left unclear about the definition of indirect discrimination in amendments 4 and 5, namely:

    ''the situation where an apparently neutral provision, criterion or practice puts persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate and proportionate aim, and the means of achieving that aim are appropriate and necessary''.

I am relieved to see that the Commission's common position is that this would be inoperable. Will the Minister give an example of what she considers to be indirect discrimination?

Mrs. Roche: Indirect discrimination can be all sorts of things. Part of the difficulty is that as case law has grown up, there have been different ways of interpreting it in legislation. A difficulty with the European Parliament's proposals is that they are contrary to some definitions that were agreed for

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implementation of the article 13 directives. Indirect discrimination could be an artificial bar that discriminated against women. A good—and personally heartfelt—example would be a height bar. It could be said that one could not be a Minister if one could see only three inches over the Dispatch Box. That would be a totally unnecessary bar, and a good example of indirect discrimination. Alas, it does not cover ministerial appointments.

Dr. Nick Palmer (Broxtowe): Will the Minister clarify amendment 6 and comment on the helpful table that sets out the three positions?

In column 1, the European Parliament's view appears to be that

    ''any general exclusion of . . . one sex having access to any kind of professional activity''

shall constitute discrimination. That would include a bar on joining a branch of the armed services. In column 2, the Commission's view appears to be that

    ''it is already implicitly covered by the Common Position''.

In column 3, the Commission's view appears to be that it has been established through case law that there are cases where sex could be a reasonable determining factor. The armed forces are one such example. Does the Minister agree that

    ''it is already implicitly covered''

in column 2 means that the Commission believes that the effect of column 1 is already in force, and that we would have to change our position on the armed forces?

Mrs. Roche: No. My interpretation is that the Commission is saying that the common position reflects current case law and would, in part, be what the UK has established. The current sex discrimination legislation and established case law reflect the position well.

Mrs. Spelman: With regard to amendment 7, I welcome the common position on maternity and paternity leave. It is more realistic as it offers the female returner an equivalent post on comparable terms rather than offering her the exact job that she left. I agree with the Minister that the parental leave directive is a better way of dealing with maternity and paternity leave. However, does the Minister accept that the cost and practical implications are disproportionately hard on smaller businesses? In the case of a company that employs only four people, two of whom are female, if one becomes pregnant soon after the other, it could cause such a small business some difficulty. There is no provision under the European equal treatment directive for any consideration of assistance for or exemption of small businesses. The Government are reasonably sympathetic to small businesses in that regard. Is the Minister prepared to campaign on behalf of small businesses?

Mrs. Roche: Given that in a former life I was a Minister responsible for small businesses, I am always happy to talk about them. However, I fear that I would earn your displeasure, Mr. O'Hara, if I went on about them for too long, because they are outside the scope

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of the directive. The hon. Lady is right, which is why we, with the European Commission, believe strongly that one must stick to the common position. However, those matters are more properly raised in relation to the parental leave directive.

Mr. Hopkins: I should perhaps preface everything I say today with my concern for the interests of women employees and that the balance is tipped in their favour rather than towards employers. The fact that I worked in the trade union movement for 23 years might flavour my comments. Has the Trades Union Congress made representations to the Government on these issues?

Mrs. Roche: As far as I am aware, it has not done so on detail, although we have an extremely helpful and continuing dialogue with it in the same way as we have with employers' organisations. If any of them wanted to make representations to us, we would be pleased to listen.

Mrs. Spelman: This again relates to amendment 6. Amendment 3 of the equal treatment directive states that there should be no direct or indirect discrimination on the grounds of gender. Does the Minister accept that there are certain jobs in which it may be more appropriate to call for interview only female or male applicants? I am thinking about, for example, women applying for the post of nursery nurse or men for a heavy lifting job. Should that constitute discrimination?

Mrs. Roche: I can think of some better examples, if the hon. Lady will forgive me for saying so. Flippantly, one could understand a genuine occupational requirement in an advertisement for Father Christmas and, more seriously, one could see why there was a requirement for a woman in an advertisement for a rape counsellor. I note the point made by my hon. Friend the Member for Luton, North. It is important that the legislation is seen to be workable for employers, employees and those who advise employees—trade unions. They must have a body of legislation that is sensible and workable, as our legislation has proved to be over the years.

Dr. Palmer: Further to the last question, does the Minister agree that the definition of indirect discrimination in amendment 2 summarises the necessary distinction very well by saying that neutral criteria that in practice discriminate against one sex should not be used unless that provision is objectively justified by a legitimate aim, such as having women as rape counsellors? To take the previous example, there are probably some women who are much better at lifting heavy weights than I am and, similarly, I might be better than certain women at being a nursery nurse. In such cases, the criteria should be perhaps a direct specification of what is needed for the job, rather than the sex of the applicant.

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