Alan Johnson: That is the procedure in sex discrimination law. The problem is that at present people have to use the sex discrimination regulations to address a problem of equal pay. These issues have been tested previously. The tribunal might be asked to consider whether any inferences should be drawn from the employer's failure to answer the question. The failure would probably not be unreasonable, provided that he or she had at least approached the colleague and asked whether he could disclose the information. A duty is being placed on employers, who must make a judgment, but it will be the same judgment that is made in sex discrimination cases. The issues are the same; we are merely trying to sort them out earlier, rather than through a full-blown employment tribunal.
Mr. Hammond: The Minister has just second-guessed what a tribunal might consider reasonable or unreasonable. Will that be laid down in regulations or guidance, or is it just the feeling his officials have given him off the top of their heads? Is there any substance to the guidance that he has just given the Committee, and can he reassure us that tribunals will behave like that?
Alan Johnson: The common law duty of confidentiality guides all discrimination cases—sex and race cases under Labour legislation and disability cases under Conservative legislation. There is a fair amount of experience in other areas. Of course, a tribunal can order disclosure of information if the case proceeds formally. That is exactly the same as the position in existing discrimination law questionnaires in the three areas that I have mentioned.
In each of those cases, the employer might be asked to provide information subject to a common law duty of confidentiality. He or she must consider whether it is appropriate to disclose that information. If the employer is not prepared to disclose it, the tribunal can, and does, decide whether it is in the interests of justice for it to be disclosed. I reassure the Committee that that system works well in other fields of discrimination.
Column Number: 445
Mr. Hammond: I understand that, and the provision is beginning to make some sense, but I am concerned about the tribunal's power to draw any inference that it thinks fit from the employer's refusal to answer a questionnaire. If I have understood the Minister correctly, the questionnaire will be served and the employer may or may not respond to it. If he does not, the next stage is that the tribunal decides whether the information ought to be disclosed, and if it requires it to be disclosed, it will be.
That seems to render redundant the provision that the tribunal may draw what inference it wishes. The Minister appears to be saying that, whether or not the employer responds to the questionnaire, the matter will ultimately and properly be dealt with by the tribunal. No inference is therefore required.
Alan Johnson: I was not saying that. At the moment, that happens at an employment tribunal. Under the new system, the employer will be able to provide that information to reassure an employee and avoid a case going to a full-blown employment tribunal. That is exactly the same as the position for other areas of discrimination legislation. The amendment, as the hon. Gentleman rightly said, would not prevent information being passed on. The amendment deals with the confidentiality of the employee who receives that information.
The employer must judge whether an individual is on a fishing expedition. It is entirely within the employer's remit to decide whether to give the information. He or she will have to decide whether the employee is still disgruntled and believes that there is a case of discrimination on equal pay grounds. In that case, he or she could end up in front of a tribunal. The tribunal will make the decision, and I cannot second-guess tribunals' decisions, which will depend on all the complex issues in the case.
The tribunal can order the information to be disclosed if it thinks it necessary. If the individual is not prepared to disclose it, the tribunal can, and does, decide whether it is in the interests of justice for it to be disclosed. The system works well in other fields of discrimination. In any event, if confidential information is provided as a result, for example, of a questionnaire and when an employer has decided that that is in the public interest, a common law duty of confidentiality may arise. That is to say, the woman would receive the information in circumstances that would impose a duty of confidence on her. She would be able to use it only for the purposes for which it was given to her.
Much information provided will not be confidential—the hon. Gentleman made a good point about sectors—and in the majority of cases it will be such things as details of pay schemes, job grading systems and how skills and experience are reflected in the employer's pay system. The amendment would impose a duty of confidentiality on all information disclosed, which is unnecessary and undesirable. It could not be shared with organisations such as the Equal Opportunities Commission, citizens advice bureaux or trade unions when there may be good reason to do so.
Column Number: 446
I hope that the hon. Gentleman will not press the amendment to a vote because I fear that it would encourage people to go to tribunals, which have the power to order disclosure of information without an automatic duty of confidence. That is the opposite of our aim of settling disputes in the workplace. I hope that that explanation will encourage the hon. Gentleman to withdraw his amendment.
Mr. Hammond: This is not the most pressing issue before us, but I am not entirely satisfied with the Minister's reply. I am surprised to hear a Minister who is invited to include specific provisions in a Bill, or in regulations, say that good old common law may do the job instead. That is not, in my experience, the usual approach taken by Ministers. They usually want the law to be codified in secondary rather than primary legislation.
I freely acknowledge the Minister's criticism of the drafting of the amendment. I included employment appeals tribunals, but erroneously did not include higher courts. The Minister drew attention to the fact that information disclosed in response to a questionnaire will contain much that is not confidential, so I must also confess to having failed to include a public domain exclusion from the scope of the confidentiality that I seek. An effective amendment would allow its use throughout the judicial process and would exclude information already in the public domain other than by the recipient's breach of confidentiality.
I do not accept entirely the Minister's assurances. I am sure that he is right that in the vast majority of cases and most of those in which sex discrimination matters are likely to arise, the information will concern grading and disclosed semi-public information that is generic rather than specific. I am, however, worried about the sort of workplace that I described in which contracts are genuinely negotiated individually, which is probably the norm rather than the exception in small, white-collar businesses.
I accept that the amendment is defective and would not achieve what I seek. I give notice that I shall table a more effective amendment on Report, perhaps tailored more specifically to the sort of cases that I have in mind, because I want to press the Minister further. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 ordered to stand part of the Bill.
|©Parliamentary copyright 2002||Prepared 17 January 2002|