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Baroness Hollis of Heigham: For once when we thank the Minister for his reply it is rather more heartfelt than merely perfunctory, certainly as regards Amendment No. 145YUB and unfair dismissal. Any amendment which would seek to protect the position of the individual going before a tribunal would be welcome. I hope that the Minster will bring forward an amendment on that at Report stage. It would be much welcomed.

I heard what the Minster said about the Equal Pay Act in the light of the House of Lords judgment covering situations of indirect as well as direct discrimination. I have certainly not received a briefing to that effect. I am not in any sense challenging the Minister on that because I am simply not aware of how complete or incomplete the House of Lords' judgment is. Would the Minister be prepared to write to me and to spell that out in much greater detail so that if we are unsatisfied on some particulars we can revisit this issue on Report? If the Minister's letter addresses those issues, we shall not need to return to the matter. If I may have those assurances, I shall be happy to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 145ZYT:


Page 31, line 42, after ("(2A)") insert ("(save for sections 2(4) and 2(5) and for the amendments to that Act for the purposes of this part of this Act set out at subsection (4) (d) below)").

The noble Baroness said: I move on to the second batch of European law amendments. In moving this amendment, I wish to speak also to Amendments Nos. 145YT, 145YUA and 145YUC. I feel as if I am dealing with an American food chain when I read out the lettering that is adopted by the conventions of this Chamber.

I shall speak first to Amendment No. 145ZYT. We do not think that applications of Sections 1 to 2A of the Equal Pay Act 1970 are a lawful or appropriate way of ensuring compliance. Perhaps the Minister has a different reading of this in terms of any House of Lords decisions. We also believe that the Bill should allow breaches of the equality rule to come before an industrial tribunal or a county court or the High Court. The EOC and the TUC have both complained to the European Commission that the present tribunal procedures are cumbersome, often ineffective and take a long time. They are taking at least 18 months to four years, and something like 40,000 cases are, I understand, currently in the industrial tribunal queue.

It is also the case that tribunals can be dealing with extremely large sums and there is no legal aid for litigants going to a tribunal. Pensioners in particular who

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may be seeking to recover damages are likely to be poor and not necessarily supported by a trade union or a friend. Amendment No. 145ZYT would allow cases, especially where there are substantial sums involved, to continue to go to the county courts. That seems to us reasonable. Amendment No. 145YUC—the last of the quartet—would refine that by directing claims below £25,000 to tribunals and those above that figure to the civil courts. It would also delete the capping of damages that this Bill would ensure—a capping which we suspect in any case is contrary to European law.

I now move on to Amendment No. 145YT, which deals with some of the time limitation issues. The first point I wish to make is that applying the Equal Pay Act appears to limit damages for pension inequalities to a maximum of two years preceding the point at which the legal action was commenced. The Minister may not be able to answer these points now but I should be grateful for an exchange of letters. What is the situation, as regards time limits, of part-time workers who have already submitted claims to industrial tribunals for damages going back to 1976? How far back can they claim for what damages?

Secondly, what happens to those who claim—not necessarily part-timers but anyone—after the Bill has become law but for periods before it became law? Thirdly, will it introduce a two-year time limit only for those who claim after the Bill has become law for periods after the Bill has become law? I hope the Minister will consider the issue of the interlocking time limits and the time period for which one can claim damages. I have a further question on time limits. Our understanding of the application of the Equal Pay Act is that any action for damages or compensation must be brought within six months of retirement as opposed to six years under, say, trust law. We believe that is far too short and tight a time scale because it takes several months before people may realise the implications of the pension situation. We believe that on all of these issues Clause 56 is hopelessly ambiguous and where it is not ambiguous we suspect that it is contrary to European law.

Finally, on Amendment No. 145YUA we again believe that Clause 56(6) is hopelessly vague. Does it mean that no claim for periods earlier than 17th May 1990—I refer to the Barber case—can be brought, so that a woman cannot claim a right under the equality clause to the same pension now as a comparable man because there were disparities before 17th May 1990, or will she be fully equalised? We need the Minister's thinking on that.

As I say, these are probing amendments. We are happy to accept that these may not be the sort of issues that the Minister wishes to deal with at this stage in Committee, but we need some clarification in the light of these European cases and this Bill, and our reading of the Equal Pay Act because we suspect that, as a result of this, there will still continue to be a necessity for many appeals to Article 119 and the European Court of Justice because this Act is incomplete or simply improper. I beg to move.

Lord Mackay of Ardbrecknish: I am grateful to the noble Baroness for explaining what is intended by the

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amendments we are discussing. I do not think that the noble Baroness used the word "probing" but I believe she wants me to explain what the clause means. I shall do so because this is an important issue.

The European Court of Justice, in the Barber case and subsequent clarification cases, established the principle that equal treatment is to be provided for service from 17th May 1990. Thus all occupational pension schemes must now provide equal treatment from that date. The provisions of Clauses 55 and 56 require just that.

The court also ruled in the Dutch cases of Vroege and Fisscher that the cut off date of 17th May 1990 did not apply in respect of the right to join a scheme and that in appropriate cases access could be granted as far back as 1976. However they went on to make clear that national time limits may be applied to such cases.

As the Committee will know, a great number of part-time and former part-time workers have now made claims for retrospective membership of their employers' schemes. The position is that currently there is no directly applicable national time limit for claims of this kind. It will therefore be a matter for the courts and industrial tribunals to decide in the particular case what limit should be placed on the making of the claim and any limitation on periods of retrospective membership which may be granted.

However, we cannot continue to leave the position of time limits uncertain. The Bill provides for the time limits which apply under the Equal Pay Act to be applied in the event of disputes and enforcement concerning the equal treatment rule. These limits, which will apply in respect of claims made after this Bill is enacted, will require claims to be made within six months of leaving the relevant employment and will place a limitation on retrospective membership of two years before the date of claim. The application of the Equal Pay Act time limits is only logical given that the European Court has ruled that occupational pensions are pay. They have also applied since 1978 to claims under the existing, more limited, equal access regulations.

We do not think it would be appropriate to give industrial tribunals discretion to waive the time limits for bringing claims in cases where they believed it was appropriate to do so. Neither is it right to provide for damages to be awarded for a breach of the equal treatment rule back as far as 1976. This would again break away from the long established limits and rules set out in the Equal Pay Act, which have worked well up to now. And as I have already explained, the European Court has stated clearly that national time limits may be applied to claims for retrospective access to schemes. Furthermore, the proposed amendments would create great uncertainty and potentially enormous costs for employers called upon to pay these damages in respect of years long past. It should also be remembered that the Bill's provisions are not intended to provide damages but to ensure that employers grant access retrospectively within the limits laid down in the Equal Pay Act so that individuals can subsequently obtain the benefits of that membership in the form of a pension.

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I turn now to Amendment No. 145YUC. This seeks to differentiate between the judicial institutions which should consider equal treatment claims, depending on the level of damages being sought.

I do not agree that it is appropriate to provide for such differentiation. In the case of claims for equality of access to schemes, I have made clear why we consider that the provisions for disputes and enforcement in the Equal Pay Act should apply. In the event of a successful claim we consider that a limitation of two years before the date of claim should be placed on any retrospective membership granted by the tribunal. The effect of a successful claim will not be the award of damages, simply that the employer must provide the employee with membership of the scheme for the period concerned and that the benefits flowing from that membership are payable from the scheme at the appropriate time. That is exactly what would happen under the existing equal access legislation, which has been in force since 1978.

We believe that the route we have chosen to adopt is clear and fair to all concerned. It would be appropriate for industrial tribunals to handle disputes of this kind, as they do equal pay claims, and inappropriate for the civil courts to handle cases involving claims for amounts in excess of £25,000. Industrial tribunal procedures are certainly simpler and easier to follow than formal court procedures. No fees are required. Many people will feel that that is preferable. The idea that there are no delays in the courts is optimistic. There are delays in the court system also.

For the sake of completeness, I should add that before the Bill becomes law it is for the courts and industrial tribunals to decide on the time limit for past periods. As I said, there is currently no time limit. After the Bill is enacted for past periods, under the Equal Pay Act, the time limits will apply if the claim is made after the Bill becomes law. After the Bill becomes law the position for the periods thereafter will be as I indicated—six months and two years.

I have explained the matter at some length, but I know that the noble Baronesses consider it an important issue. I have explained the Government's thinking and how we have arrived at our conclusions on the time limits for this country which we believe are consistent with the Equal Pay Act and the European judgment. I hope that with that rather long explanation the noble Baroness will withdraw her amendment.

9 p.m.

Baroness Seear: Before the Minister sits down I should like to ask him to think again about the six-month period. It is not very long if one is not familiar with these matters. When one retires one does not move in the circles where people talk about how one can get equal pay and how tribunals work. It seems a

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very short period. I cannot think that it would cost any more or cause any great inconvenience to extend it to a year, or even to nine months.


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