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Baroness Hollis of Heigham: I was disappointed in that reply. How can we ensure a disabled person's rights not to be discriminated against in the field of employment? If two employers are faced with an identical job situation and, let us say, with a person with the same degree of impairment, one could make one decision and the other could make a different decision. Everything the Minister has said suggests that in a situation with two identical job descriptions and two identical candidates in, let us say for the sake of argument, an identical field, one employer could make one decision and another could make a different decision, because, as the noble and learned Lord, Lord Denning, said, there is a band of reasonableness within which one employer might reasonably take one view; another might reasonably take a different view.

The difference between those two employers is not about anything that is objective, it is about their state of mind. It is their perceptions; it is their attitude. It is no good saying it is their judgment or discretion; it is attitude. If whether a person has a case or not depends upon the employer having that attitude, then we have gone down the slope I feared, which is the slippery slope of subjective judgment.

When it suits the Minister, because we are worried about perception, as in the first amendment, or, had we spent a little more time on it, the amendment moved by the noble Lord, Lord Wise, the Government insist we are talking about objective disability. When it comes to discrimination, it suddenly becomes subjective discrimination, because it is all about judgment and the test of reasonableness.

The Government cannot have it both ways, otherwise disabled people will lose out on the test of disability and the test of discrimination. The Government will have set it up in that way. I beg leave to withdraw the amendment.

13 Jun 1995 : Column 1731

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 28:


Page 3, line 21, at end insert:
("( ) the employer has taken appropriate expert advice as a basis of his opinion; and").

The noble Baroness said: To some extent the amendment follows on the previous discussion. It purpose is to ensure that the employer's opinion about the extent of disability is not merely trivial or based on prejudice; perhaps rejecting a disabled person because his appearance is not deemed suitable for the employment in question. The effect of the amendment would be that an employer would have to seek expert advice on the suitability of the disabled person to carry out the essential duties of the employment.

Under the Further and Higher Education Act 1992 the funding councils for both further and higher education are required to have regard to the needs of students with learning difficulties and disabilities. In order accurately to assess those needs and to make appropriate provision, the funding councils are required to seek expert advice. The amendment would require potential employers to seek appropriate advice in order to arrive at an accurate and informed assessment as to whether a person's disability would be likely to prevent him or her from being able to carry out the duties associated with the prospective employment.

The organisations which specialise in assisting the disabled can provide numerous examples which appear to indicate that what is proposed in the amendment is necessary. Perhaps I may quote an example that I have been given by one of those organisations. Within the past year a partially sighted employee was dismissed from his employment with the National Car Parks organisation because he was unable to carry out his duties with the small screen provided with the computer in the office. Had the employer been obliged to seek expert advice, he would have discovered that the employee could have done the work quite well with a larger screen and, moreover, that the cost of providing the screen could have been borne under the access-to-work scheme.

If we are to take non-discrimination seriously we must ensure that such cases do not happen and that people who could quite well carry out jobs are not kept out of them through ignorance or prejudice. Earlier today we had a great deal of discussion about the organisations to be available to give advice and I hope that we shall not now revisit that discussion. However, it appears that, as regards students, expert advice is available for funding councils under the Further and Higher Education Act 1992 and therefore it ought to be available to give advice to employers to the kind of circumstances to which I have referred.

I hope, in particular in the light of our recent discussion, that this time around the Government will be prepared to lend a favourable ear to what we have been saying. I beg to move.

Lord Addington: I support the amendment for the simple reason that it removes many of my objections to the part of the Bill that we discussed in the previous amendment. Surely, informed opinion is to be preferred

13 Jun 1995 : Column 1732

over uninformed opinion. If an employer is making a decision on the grounds that he knows what he is talking about, as opposed to what he perceives from an uninformed point of view, he is more likely to make a reasonable decision.

A provision such as this should be included in the Bill. We should ignore the idea of acting on prejudice. If we remove the possibility of uninformed prejudice, we shall remove many of the situations in which discrimination is taking place. I hope that the Government will take the proposal on board. If not, they will be creating more situations in which the courts and tribunals must sit. Requiring people to take on board knowledge will help on all sides.

Baroness Gardner of Parkes: I find this amendment rather worrying as it seems almost to indicate that we wish to discriminate positively in favour of disabled people. I do not think that disabled people would want that. This is meant to be a Bill to avoid discrimination, but it should not impose very considerable burdens, and I consider that to have to take advice from an "appropriate expert" would be extremely costly.

In our last debate it was said by the noble Baroness, Lady Hollis, that employers would have different views. I can tell the noble Baroness that experts too have different views, and half a dozen experts would have half a dozen different views. Therefore, that presents a problem.

I have sat on an industrial tribunal for 20 years. Every aspect of every case is considered extremely carefully. In 20 years, I believe that there has been only one case on which there was disagreement among the three members of the tribunal. Usually as the facts emerge, it becomes quite clear cut, one way or the other.

Baroness Lockwood: I am surprised that the noble Baroness, Lady Gardner, regards this as a positive discrimination aspect of the Bill. It merely seeks to provide advice to employers before they take certain decisions which might lead them to an industrial tribunal. In that event, the tribunal would have to decide and give advice.

When we discussed the matter earlier, one problem that was referred to was the fact that if there is no central body to assist individuals, there could be many individual cases going to different tribunals and the different tribunals may make different judgments.

If there were someone or a team of people who were centrally based who could give advice on what is regarded as "reasonable", then the number of cases to go before tribunals would be reduced. But assuming that cases go before tribunals and that, because of the vagueness of the clause, appeals are taken from the tribunals to an appeal court, then you would begin to have a legal code on the interpretation of the legislation.

In that case, it would be extremely helpful for advisers to be available to advise on what was the authoritative interpretation. Inevitably, in the early stages, mistakes will be made. But we want to minimise those, to have what would be a national code on the interpretation of the Act. The proposal made by the amendment would be a great help in that respect.

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Lord Rix: Would it not be possible for the amendment to be amended so that it reads that:


    "the employer has taken appropriate expert advice from the National Disability Council",

whatever that may end up as being? Surely that is the body to be put in place to give advice on all such cases.

Lord Monkswell: Perhaps we should consider the situation from the point of view of the employer. He has difficult decisions to make when dealing with disability and the employment of disabled people.

As the Bill is currently drafted, the interpretation is that it is down to the employer, in his reasonable opinion, to make a judgment. We must be concerned with a situation where the employer, not taking any advice from anybody, says, "I think this is reasonable". He engages in a course of action; he does not employ the disabled person because he thinks that it is reasonable not to do so; he is then taken to an industrial tribunal. That tribunal then says, "We do not think that what you did was reasonable". Therefore, the tribunal finds against him.

It seems to me that it would be useful for the employer to be able to offer in his defence that he had taken expert advice. That is the way that I would read what is proposed by the amendment. If an employer is faced with a claim of discrimination, it would be a good defence to be able to say that he had taken expert advice regarding the action that he took. I see it as a support for the employer rather than the other way round.

9.30 p.m.

Baroness Gardner of Parkes: I should like to take up the point just made by the noble Lord, Lord Monkswell. I quite agree with him. I think that it would be very desirable for the employer to take such advice. However, I believe that the proposed amendment is placing an obligation on the employer.


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