1976 Equal Treatment Directive

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Mrs. Roche: My hon. Friend makes the point well, which is why the common position at which the Council arrived is sensible. There will always be different circumstances, which is why cases may go to industrial tribunals, employment appeal tribunals and then perhaps the courts. The balance of our judgment is that the common Council position is right.

Mrs. Spelman: Of course it is important to give rights to people who feel that they are the victims of sexual discrimination. That is what we are trying to achieve. However, we must be careful about creating a culture in which litigation becomes increasingly an option that people are encouraged to take. In some cases people prey on others, urging them to take the litigation route. Rather than saying under article 6 that judicial procedure should be available to those who consider themselves wronged, would it not be more effective to say that judicial procedures and assistance should be made available to those who have evidence that they have been wronged?

Mrs. Roche: It depends on what the hon. Lady means by evidence. Clearly, an independent body of legal status would be needed to weigh the evidence. As soon as that independent element was in our system, its decisions could be subject to judicial review. The hon. Lady has not persuaded me, although I agree with her that it is important for employers and employees to exhaust other methods before going down the route of the tribunal. In the best regulated work places when genuine issues or grievances emerge, people resolve them together. When cases go to court there is usually a prima facie case of some kind. I welcome the work that bodies like the EOC and the TUC have done to explain the law to employers and employees so that they can look at conciliation and resolving grievances and disputes internally before seeking the next step up.

Mrs. Spelman: Article 6 states that victims of discrimination should receive compensation or reparation. What does reparation mean here? When it talks of measures that are ''dissuasive and proportionate'', does it mean an increase in the extent of punishment or is the Minister satisfied that the present levels are satisfactory?

Mrs. Roche: We are satisfied that the common position is right. It is different in different jurisdictions, but certainly under our jurisdiction there would be compensation payments for loss in that area. Our difficulty with the position that has been put forward by the European Parliament is that it talks about sanctions. It is unclear what that would mean. It would be quite an escalation and a departure. There is a difference. We do not have an upper limit as they do in some other jurisdictions. Perhaps there is a bit of confusion there. Again, it is a good example where I believe that the common position is correct. It is balanced and full of common sense.

Mr. Walter: I want to draw the Minister out a little on amendment 6, which has not been accepted by the Commission. It might relate to certain areas of the armed forces. The European Parliament's amendment was that

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    ''any general exclusion of, or restriction on, one sex having access to any kind of professional activity or to the training required to gain access to such an activity constitutes discrimination''.

The Minister will be aware that I spoke firmly in favour of the Sex Discrimination (Election of Candidates) Bill. It is a form of positive discrimination. Does the hon. Lady have an opinion on whether it might fall foul of the new directive?

Mrs. Roche: That is an interesting question. I am grateful for the support of the hon. Gentleman and of the hon. Member for Meriden for the legislation, which had all-party support. In our opinion the directive does not cover legislation of that kind.

Mrs. Spelman: The Minister makes an interesting point. The attraction of making amendments to the Sex Discrimination Act in that way is that it is permissive legislation, which Conservative Members infinitely prefer; it gives more flexibility to parties that must use the legislation to interpret it in a way that best suits them. However, much that is proposed under the directive—mostly the aspects that, mercifully, are not upheld by the common position—is quite prescriptive. Is the Minister not a little disappointed that her party backed away from equal treatment? Its quota for female representatives was reduced from 50 per cent. to 30 per cent.

Mrs. Roche: I am disappointed at that note of party politics. I have great regard for the hon. Lady, but she is guilty of ''chutzpah'', a Yiddish word that means cheek, and is defined in the example of a man—it is a man in this case—who murders both his parents and, in his plea of mitigation to the court, claims that he is an orphan. The Labour party's proposal is to achieve 50:50 representation; it is committed to taking positive measures to achieve that ratio, unlike the Conservative party and the Liberal Democrats.

The Chairman: Order. The hon. Member for Meriden's remarks were out of order, although they were diverting and entertaining. I appeal to members of the Committee to stay strictly in order, as they have done, commendably, so far.

Mrs. Spelman: I promise to do as you direct, Mr. O'Hara, and to return to the matter in hand. I realise that I was not speaking from a position of strength. We look to the Government to give the lead.

Article 7 states that employees should be protected from dismissal or other adverse treatment. In certain circumstances, notably when there has been a malicious allegation—there was such a case in my constituency—should not employers have the right to take action against employees? We are trying to strike the right balance between employers and employees in our response to the directive; if employees continually make unfounded allegations, should they receive protection from adverse treatment in such circumstances? Can the Minister clarify the position?

Mrs. Roche: Let us take a case in which the employer claims that there are a series of unfounded allegations, about discrimination or anything else, that are without merit; the employer takes appropriate action; the

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employees decide that it is a matter of discrimination and take the matter to a tribunal. Of course, the tribunal would be entitled to consider all the circumstances of the case. If it found that the allegations were false or malicious, the legislation would not protect them.

Mrs. Spelman: I am encouraged to hear that. It will be in the record; it is an important balance between employer and employee.

What does article 8b mean? It sounds as if we should support the idea of social dialogue between social partners, but the monitoring of work practices sounds like a recipe for excessive interference. Of course, workers must have the right to complain if they are being discriminated against, but does the Minister agree that the wording of the article is a licence to interfere?

Mrs. Roche: No, the balance is about right. Language is always difficult when several member states are relevant. The Government's grant funding to EOC, which engages in dialogue with employers and employees, is an example. It may bring 60 test cases across the year. Its object is to promote equal treatment and it gains wide cross-party support. The provision will ensure that the EOC's work is carried on. We disagree with the European Parliament, which wants to put in place a statutory duty on companies. Our better companies—for reasons connected with social justice as well as productivity—will want to follow these good practices, but we do not want to impose an unnecessary burden that might prove inoperable.

Mrs. Spelman: I come back to the ''monitoring of workplace practices''. Article 8b reads:

    ''Member states shall . . . in accordance with national practices and law''.

That is intriguing. What exactly does the provision mean? Is it not a recipe for constantly visiting and revisiting the workplace?

Mrs. Roche: No. We are rejecting the European Parliament's proposal to create legal duties on employers to promote equal treatment and report on their actions, which we view as an unacceptable burden on business. Our national tradition is represented by our support to EOC, whose work is highly regarded in the European context. Much of its work comprises discussions with interested parties, forums with trade unions, the CBI and so forth. The proposal establishes some current practice in the UK. Other member states have similar systems.

Mr. Walter: May I draw out the Minister on another potential effect of the directive? Could it impinge on those who give freely of their time—working for charities, charity clubs and societies throughout the country—despite no contract of employment and no money changing hands? I remind the Minister of my Sex Discrimination (Amendment) Bill. I hope that she will be in her place on 15 March to keep her own Whips quiet and stop them from shouting ''object'' when it

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comes before the House. Will she clarify whether the directive would apply to those who are effectively in unpaid employment with no contract?

Mrs. Roche: No, I do not think so. It applies to those in employment, so it hinges on how we define employment. I know about the hon. Gentleman's forthcoming Bill and I shall follow its progress closely.

Dr. Palmer: Let us return to article 8b. Does my hon. Friend the Minister agree that we could assist the Conservative Front-Bench spokeswoman, the hon. Member for Meriden, by considering the alternative to the passage, which would be not to monitor workplace practices? Would we not then be operating in a vacuum? We might pass various regulations, but we would have no idea whether they were being implemented in practice.

Mrs. Roche: What the common position proposes seems extremely sensible. It suggests reporting within a reasonable amount of time—we certainly would not want it to be a short period—on what is happening in practice. We will have much of the information nationally, and some will come from the EOC. It seems sensible for us to pass that to the Commission, not least because it will enable EU-wide comparisons to be made. That will help us as well as Parliaments elsewhere in the EU.

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