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Baroness O'Cathain: I hate to prolong this debate, but I hope I can make an additional point. Frankly, looking at this Bill, the more examples one includes, the more people will think, "Oh my goodness!", and ask themselves whether it is worth being an employer. There is an element of that.

Baroness Masham of Ilton: I thank all Members of the Committee who have supported the amendment. I point out to the Minister that it sets out a list of suggestions, as the noble Baroness, Lady Hollis, said, putting the idea into the mind of the employer. These are reasons for turning someone away without even being given the opportunity to be interviewed. It is only a suggestion that an employer "may", not "shall", do this. I feel very strongly about this issue because I know so many excellent and skilled individuals who have broken their necks. All they need is a helping hand to get them in to their place of employment.

I have no intention of dividing the Committee tonight, but I shall certainly bring the matter back at the next stage. I hope that the Minister will think about the matter. Perhaps he will speak to one or two people who are in that position. I can bring them along and introduce them to him.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Baroness Turner of Camden moved Amendment No. 39:


Page 4, line 31, at end insert:
("( ) Where an employer has made an adjustment listed in subsection (3) to enable a disabled person to take up or retain employment with him that adjustment shall be one of the terms and conditions of employment to which the employee is entitled by virtue of his contract of employment.").

The noble Baroness said: The purpose of the amendment is to try to ensure that reasonable adjustments made to enable disabled persons to undertake employment are protected by the acquired rights directive. This is a probing amendment put down in order to obtain from the Government a commitment that disabled workers, especially in the public sector, will not lose adjustments that enable them to retain employment should their employer be taken over or should the service provided be subjected to compulsory competitive tendering.

As the Committee will know, the EU acquired rights directive is given effect in UK law by the Transfer of Undertakings (Protection of Employment) Regulations 1981. The intention of the directive and the regulations is to ensure that any workers whose employer changes as the result of a transfer of the ownership of the business retain their acquired employment rights: their contracts of employment remain and they retain the right

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to claim unfair dismissal or redundancy compensation just as if they had been employed for the qualifying periods fixed by law. In addition, any dismissal that is directly related to the transfer is automatically regarded as unfair. However, importantly, the new employer is in exactly the same position as the old employer with regard to any changes in terms and conditions. There is therefore no guarantee that terms and conditions will remain unchanged. Similarly, an employer may implement dismissals for economic, technical or organisational reasons.

It thus seems to us that vulnerable people like disabled employees need extra security written into legislation. We believe that there is a degree of uncertainty as to whether, for example, adjustments made to enable a disabled person to retain employment would need to be continued by the new employer.

Moreover, should the new employer have fewer than 20 employees he or she will not be required to make any adjustment at all, as we have already heard. Therefore, if the new employer is significantly smaller than the original one the disabled person could be at a significant disadvantage.

The matter could be put beyond doubt by ensuring that this amendment or something like it is included in the Bill. I await the Government's response with interest. I beg to move.

Lord Swinfen: I intervene on this amendment to ask a question of my noble friend the Minister. If an employer removes the reasonable adjustments that have been put in place to enable a disabled employee to undertake his work, would that be construed as constructive dismissal?

Lord Inglewood: I hope my noble friend will forgive me. I did not hear the crucial part of my noble friend's question as to what it was that might be construed as constructive dismissal.

Lord Swinfen: My noble friend was consulting at the time. I intervene only to ask whether, where reasonable adjustments have been put in place by an employer to enable a disabled employee to undertake his work properly and the employer then removed those adjustments for one reason or another, thus making it difficult or impossible for the disabled employee to undertake his work satisfactorily, that could be construed as constructive dismissal.

Lord Inglewood: It is important that we are clear about the nature of the rights of a disabled employee. Those rights owe their origin to statute and depend upon a relationship between the employee and the employer. The fact that they are not contractual with any particular employer means that if the identity of that employer changed the statutory rights as defined in the Bill do not necessarily alter.

The effect of this amendment would be that any adjustment made by an employer for a disabled employee so that he could take up or retain his employment, and which was listed in Clause 6(3), would become a term of his employment contract. As I understand from what the noble Baroness said, the intention underlying the

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amendment appears to be to give a disabled employee a contractual right to the continuation of a measure once taken.

An employer is placed by Clause 6(1) under a duty to make an adjustment if a disabled person would otherwise be placed at a substantial disadvantage by certain arrangements made by the employer, or by a physical feature of premises, and that adjustment would be reasonable in all the circumstances of the case. If in such circumstances the employer does not make an adjustment, he will be regarded as having treated the disabled person less favourably for the purposes of Part II, subject to any justification, and the disabled person will have a right to make a complaint to an industrial tribunal. That right is not diminished once the employer has made the reasonable adjustment. If the employer took away the adjustment leaving the disabled person at a substantial disadvantage once again, that person would again have the right to complain to a tribunal.

I believe that that covers much of the point raised by my noble friend Lord Swinfen. I draw his attention to Clause 3(2((d) which states:


    "It is unlawful for an employer to discriminate against a disabled person by dismissing him, or subjecting him to any other detriment".

The amendment would give a further right to a disabled person under the terms of his contract to any such adjustment which has actually been carried out.

There seems to be no reason for this. There is no such dual right in other anti-discrimination legislation, and it could work rather oddly. Imagine a case where any one of a number of reasonable adjustments would remove the relevant disadvantage as well. The disabled person would have no right to specify which one of those adjustments be made. But under the amendment, once the employer had made one of those adjustments the disabled person would have a contractual right to the continuation of that specific adjustment (if it were of a type listed in subsection (3)), even if the employer later wished to substitute it for a different but at least equally effective adjustment. The amendment would also appear to preserve an employee's right to an adjustment even if he ceases to need it, for example because he recovers from the disability.

I turn to the point raised by the noble Baroness, Lady Turner. If there is a transfer of business, the continuation of adjustment must depend on whether that adjustment is reasonable for the new employer; and if a business is transferred as a whole it seems unlikely that the issues of reasonableness could alter.

The noble Baroness also raised the issue of the number of employees falling to fewer than 20. The Government's intention is that small employers should not be covered by the Bill. They would not wish them to be brought in by this or any other route. However, we shall encourage them to follow the code of practice to which we have already referred.

It is not entirely clear why the noble Baroness has chosen to give this special treatment only to steps comprised in the examples set out in subsection (3). If those examples of steps were deemed to be terms of the employment contract once they were made, employers and disabled people may regard this as a signal that those examples have a different status from or a higher status

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than other adjustments that employers may make. We believe it would prove confusing all round and I cannot support the amendment.

Earl Russell: Before the noble Baroness decides what to do with the amendment, perhaps I may probe that reply a little further. It sounded extremely encouraging a lot of the way through, but one has to examine what is not there. There were two crucial sentences I wanted to ask the Minister about. One concerns where the employer changes. I take the point about the rights deriving from the statute, but the Minister's phrase was that the rights do not necessarily alter. That is a long way short of a commitment. Could the Minister change the word order and say that the rights necessarily do not alter? That would be a different and much more encouraging statement.

The other point deals with the employer who has, if I may so put it, gone on a diet. That is, he has changed from being a large employer to being a small employer within the meaning of the Bill. The Minister said that the Government would encourage that employer to go on maintaining the rights or adjustments that the disabled person enjoyed. Can the Minister say how the Government would encourage them?


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