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Lord Inglewood: The noble Baroness is quite right; she cannot see that provision in the Bill and I must have seen the wrong wording. The answer is that the NDC cannot advise on employment matters although it will be involved in issuing codes of practice to businesses on the provision of goods and services. I should not have tried to think on my feet.

Baroness Hollis of Heigham: Given that the Minister accepts that there is a need to give advice, and that in response to the suggestion of the noble Lord, Lord Rix, he accepted that the National Disability Council might be an appropriate body to give such advice, can we express the following hope? It is that when we revisit the subject in Committee when we reach the National

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Disability Council, the Minister will make it clear, as he has done, that he would welcome the council having that additional function.

Lord Inglewood: In my comments, I made it quite clear that the Department of Employment is in a position to give advice. That seems to cover the noble Baroness's point.

Earl Russell: I listened carefully to the Minister's reply. As a Liberal, I can understand the case that he made against compulsion, but there is still a problem. I have not heard an answer to the point made by the noble Baroness, Lady Farrington, that those who are ignorant do not know that they are ignorant. I wonder whether there is a case for reconsidering the wording of Clause 5(1). Perhaps the words which constitute a red rag to some of us on this side of the Committee are the words "in his opinion". I understand what the Minister said, that that is subject to a test of reasonableness. But an employer reading it in a hurry—one is always in a hurry when one has a lot to do—may see it as simply entitling him to think what he thinks. Would it not be better to have a phrase suggesting that the employer must have good cause for believing that one of the conditions in subsection (4) is satisfied? That would give a rather plainer signal to the employer that there is a burden of proof which he must shoulder.

Lord Inglewood: I have a feeling that we are going back to what we were debating three or four weeks ago in the context of the Jobseekers Bill. As I understand the way the Bill has been constructed, the change to which the noble Earl referred would not add anything to what is in the Bill. We are always willing to contemplate the detail of the drafting and we will put our minds to the detailed drafting of the clause. There is nothing that is incapable of improvement. However, I do not believe that the form of words which the noble Earl proposes as an amendment would in any way alter the substance.

Earl Russell: I admit that the change I proposed was cosmetic, but the effect of a cosmetic change may occasionally be interesting.

Lord Swinfen: Before my noble friend replies to that, the court can decide whether there is good cause much more easily than whether someone holds a correct opinion. Opinion is nebulous where good cause is not.

Baroness Farrington of Ribbleton: It is extremely important that we establish beyond any shadow of doubt that ignorance will not be a defence and that somebody saying they had never known anybody who had a serious or difficult disability managing to work in a particular job or particular set of circumstances could not be considered to have good cause. Therefore the onus is on the employers to take advice if they are about sweepingly to use prejudice to rule out of consideration all the suitable people who happen to have disabilities.

Lord Inglewood: I think I can most easily respond to that by simply saying that ignorance is not an excuse. The whole point here is that the person concerned has to act in a reasonable manner. I talked earlier about the band of reasonableness which the noble Baroness, Lady

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Hollis, has referred to, quoting, I think, the noble and learned Lord, Lord Denning. Ignorance is way beyond the band that "reasonableness" encompasses.

Referring to the point made by noble friend Lord Swinfen, I really do not think that applies. Our courts are very experienced and are used to dealing with matters such as these. They can come to these conclusions perfectly satisfactorily on the basis of the wording that is contained in Clause 5.

Baroness Turner of Camden: We have had an extremely interesting debate on what I thought was a very simple amendment. I want to make the point very strongly that in drafting this amendment, we had not in mind positive discrimination. We wanted to ensure that decisions, when they were made by employers, were made on the basis of experienced opinion rather than on the basis of prejudice. I think, as has become apparent during the debate, a number of noble Lords on all sides of the Committee believe that many employers are prone to prejudice in regard to the appointment of disabled people.

I myself for a long while was in charge of staff, though not specifically as an employer, and I always did my very best to abide by the quota system that we then had. Sometimes it was a bit difficult because not all disabled people were willing to register under the quota system; but I, along with many others in the employing situation, did my best to ensure that disabled people did have a fair chance to obtain employment. It is quite true that many employers exist who will give disabled people a chance of reasonable employment.

The problem about legislation is always that you have to legislate for the worst possible people. The reason for legislation is to maintain standards. If all employers were reasonable employers, decent employers and fair-minded employers, we would not need legislation of any kind—just a few injunctions from the Government. We need legislation because there are bad employers, ignorant employers and employers who will probably not abide by legislation unless it has some force behind it. Because of that we wanted to have something written into the Bill which would make it necessary for employers not to rely simply on prejudice or on what they thought to be the situation with regard to the possibilities of the disabled person being able to conform with the requirements of the job, but that they would have to take skilled and expert advice in order to do so. I believe, as my noble friend Lord Carter has said, that there will be plenty of such advice available.

I believe that it is necessary to have some measure of compulsion; otherwise I really cannot see the legislation working in the way the Government say they want it to work. As to the point raised about the National Disability Council, my noble friend Lady Hollis has dealt with that point adequately, although I would point out, as I understand it, that the council will have a relatively small budget: something like £250,000. So it is not going to have very much money available in order to provide the kind of expert advice and assistance that is envisaged in the original amendment.

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Obviously, I shall not press the amendment to a vote at this hour of the night, but I am not very happy about the way in which the Government have responded. I note that there will be a code of practice. I note what the Minister has to say about the case that I quoted, and that a clause in the Bill would have covered the situation in regard to that particular employee. Nevertheless, we ought to look again at the situation with a view to perhaps coming back with something redrafted on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Baroness Turner of Camden moved Amendment No. 29:

Page 3, leave out lines 35 to 37 and insert:
("( ) the disabled person is unable to satisfy an important requirement or qualification relating to the employment; or
( ) the disabled person is less able to satisfy an important qualification or requirement relating to the employment than another person and that other person is given the employment;").

The noble Baroness said: In moving this amendment I should also like to speak to Amendments Nos. 30 to 33, 35 and 36. These amendments all cover much the same kind of ground and have much the same kind of objective. They are concerned with the whole issue of suitability.

The purpose of this amendment is to replace the somewhat open-ended defence as to whether a disabled applicant is suitable with the more job-related criterion as to whether the disabled person is the best person for the job in terms of the job's important qualifications or requirements.

A defence related to whether the employer reasonably believed that a disabled person was or was not suitable could risk allowing an employer to shift the blame for discrimination to the prejudice of customers or to other employees. To allow such a defence is likely to drive a coach and horses through the legislation, and perhaps even bring the law into disrepute. An employer who attempted to defend refusing to appoint a black man to a sales position because the customers would not like it, would clearly get short shrift, and very rightly so because such less favourable treatment would clearly not be lawful. But what about an employer who refuses to appoint a disabled person to a sales post because it might disturb the customers? The employer might well argue that this meant that the disabled worker was less suitable than a successful candidate who was not disabled.

The employer might unfortunately be able to demonstrate that his customers would prefer to be served by someone who was not disabled. What will happen if the employer defends his decision on the grounds that the disabled person made other employees feel uncomfortable? Surely this cuts across the grain of legislation intended to prevent discrimination.

The proposed wording attempts to preserve the merit principle and would not interfere with the right of employers to choose the best person for the job, based on qualifications and requirements laid down.

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Similar considerations inform the other amendments which are grouped with this one. Again, we are concerned that there should be appointment on merit, but that people should not be debarred simply because they are disabled and some other kind of excuse be used, stating for example that for some other reason they would be unsuitable. All the amendments in this group cover much the same sort of situation.

The amendment that refers to essential duties, again, refers to duties that are essential to the job. The intention is not to allow a situation in which an employer could discriminate against a disabled employee for not being able to perform what could be regarded as a peripheral function of the job rather than the core requirement. I believe that all the amendments are self-explanatory. They cover the whole issue of whether or not it is reasonable to allow the employer to rely on suitability in the broad terms stated in the Bill, rather than on ensuring that individuals are assessed on their ability to do the job involved and on the merits of the individual in each particular case. I beg to move.

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