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Lord Carter: Before the Minister responds, perhaps I should say that I am qualified to satisfy noble Lords opposite. I am an employer and I have employed disabled people.

I am not sure whether the Committee is aware that there is a substantial growth area in disability awareness training. If Members of the Committee opposite are worried about the lack of experts who can advise employers about problems relating to disability, large numbers of people are available. They are disabled people.

Lord Rix: I am sorry to intervene again. I must also declare an interest. I have been an employer for 49 years.

I suggested earlier that the national disability council might well be the arm to which the amendment could be referred. Unfortunately, as it is presently constituted under Clause 23(4) of Part IV,


I hope that that is something that we shall consider when the amendments of the noble Lord, Lord Swinfen, are moved on Thursday.

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If that point in relation to the national disability council could be considered closely that would satisfy Amendment No. 28 in regard to the appropriate expert advice. That advice could come from the national disability council itself.

9.45 p.m.

Lord Inglewood: We have had a worthwhile, sparky and useful debate on this subject. It seems to be held in some parts of the Chamber that there is a shortage of experts on this topic in the outside world. There is certainly no shortage of experts in this Chamber this evening.

The effect of the amendment would be that an employer would have compulsorily to seek expert advice every time he had to make a judgment about how to deal with a disabled person for a reason which related to the disability.

Perhaps I can begin by referring to a point raised by the noble Baroness, Lady Seear. In Clause 7 of the Bill, there is a threshold below which Part II of the Bill will not apply. As currently drafted, that threshold is 20 employees. Therefore, the types of case with which the noble Baroness was concerned would probably fall outside the scope of what we are discussing now, certainly in a legal if not in a practical sense.

We do not differ in believing that employers ought to seek help and assistance, if they need to do so, when making a decision about whether less favourable treatment is justified. The duty under the clause is unlikely to be fulfilled in many cases unless the employer is either knowledgeable or seeks advice from a knowledgeable source on disability. However, where we differ is about the need to make it compulsory to seek appropriate advice before he can make the decision.

There are many factors involved in coming to a final decision about, for example, taking on an employee. An employer may or may not need to seek advice about any particular factor during that process. However, a large employer with wide experience of employing disabled people might not need to seek advice because he may already have that knowledge or it may be available in-house. It is not clear though whether that would satisfy having taken "appropriate" expert advice. What does "appropriate" mean in this context? To go back to where I began, who is an "expert"? When all is said and done, one is at perfect liberty to take advice from whomsoever one wishes.

The noble Lord, Lord Rix, raised the question regarding the National Disability Council. I have not been able to check the provisions of the Bill. However, I believe that I am right in saying that the council will not investigate complaints. But it could offer advice and no doubt if it were asked it might have some views. Perhaps I may be forgiven for promoting my own profession. It is always possible to seek expert advice from a lawyer if one cannot obtain it from elsewhere.

With regard to the point made by the noble Baroness, Lady Seear, free advice is normally worth what one pays for it. One has to be a little careful about that.

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Baroness Seear: The factory inspectors on the whole gave quite good advice for nothing.

Lord Inglewood: However, there will be much helpful advice available from the Employment Service and placement and counselling teams. No doubt many other bodies will be able and willing to provide effective advice. I refer to voluntary bodies and citizens advice bureaux about which we spoke earlier. It is not for the Government to restrict employers' ability to seek their own appropriate advice, nor indeed to fund all the advice that an employer may feel he needs or wants.

It is clear that there will be many cases, perhaps a majority, in which an employer could fulfil his duty without the need for any advice. In a case where the employer may need advice there are a number of options open to him. The Government believe that the decision as to whether or not advice is needed must remain with the employer, as must the decision as to where he obtains that advice, if he needs it. That seems to us sensible.

As noble Lords will see when we debate Clause 26 later, the code of practice will give guidance on the ways in which an employer can fulfil his duties and will be subject to wide consultations. I hope that that will reassure Members of the Committee.

Contrary to what has been suggested, the Bill requires that an employer's opinion must be reasonably held. I do not wish to go back over the debate on the previous amendment. In cases where there is a genuine uncertainty about the effects of a particular disability, tribunals will ask what steps an employer took to examine that issue. As my noble friend Lady O'Cathain said, on occasions there will be an evidential need to show that advice has been taken to establish the position of the employer. On the other side of the coin—it was a point made by the noble Lord, Lord Ashley—the people who most need the advice will not take it. One can take as much advice as one wishes; but one will not act properly on it. That will not advance the case of the disabled person one jot. We believe that the approach outlined is the right way to deal with the problem, and not to impose an unnecessary and burdensome procedural requirement of this kind.

Perhaps I may touch briefly on two further points. The noble Baroness Lady Turner cited a case relating to someone working for National Car Parks. I do not know the details of the case, but it seems to me that on the basis of what she described the circumstances would be discriminatory and the provisions of Clause 3(2) (d) of the Bill would come into effect. There would be a duty in those circumstances for an employer actually to carry out reasonable adjustment.

I wish to touch briefly on the point made by the noble Baroness, Lady Lockwood, about a code. Guidance will be provided on these matters. But it inevitably will be the case that where a new legal order comes into being, it will take time for a code to develop. That is inevitable. Unfortunately, no doubt over time there will be decisions which go to industrial tribunals; and tribunals—and beyond them possibly the courts—will make judgments which will then build up the code. However, that will take place over time. One cannot instantly accomplish that bearing in mind the nature of the judicial process.

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I hope that Members of the Committee will feel reassured by what I said about the practical help and guidance which will be available to employers of disabled people. I do not believe that we should place unnecessary requirements on employers. It is on that basis that I invite the Committee to reject the amendment, if it is put to the vote, or the proposer to withdraw it.

Baroness Hollis of Heigham: Before my noble friend responds to the Minister and decides what to do, I should like to ask the Minister a question. I was surprised by something he said and I may have misunderstood it or there may be some aspect which I did not understand. In response to the noble Lord, Lord Rix, he suggested that there was a body, the National Disability Council, which could help. The noble Lord, Lord Rix, asked whether that body could give advice to individuals, employers and organisations and be the expert body. As I recall, the Minister said that it could do so but it would not have the power to investigate complaints. He gave the impression that the body could give advice to employers and organisations but not investigate complaints. Can the Minister tell me where in Clause 23 or Schedule 3 that power can be found?

Lord Inglewood: In my remarks to the noble Lord, Lord Rix, I said that I had not turned up the relevant provisions of the Bill before I made my comments. Institutionally, the body cannot give advice, but the point I wished to make to him was that if someone were casting around, with nowhere else to go, they might find they could be helped by contacting that body. It would not be able to give expert advice but might help as a longshot on where a person might find it.

Lord Rix: Before the Minister sits down, as far as I read Part IV of the Bill, it seems to lay down that the National Disability Council can only give advice to the Secretary of State. It seems to me to be onerous for a person seeking employment to have to go to the Secretary of State to get matters clarified.

Baroness Hollis of Heigham: That is the point I hope the Minister will address. I can see no powers under Part IV, Clause 23 or the relevant schedule that would allow any direct giving of advice by the National Disability Council to anyone other than the Secretary of State, except through the mechanism, say, of the code, at the request of the Secretary of State.


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