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Lord Carter moved Amendment No. 56E:


Page 8, line 26, at end insert:
("( ) an employer has indicated that a successful application will depend on a medical testing or screening; or"). The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 56F. I am afraid that these two amendments go over some of the ground that we discussed on Tuesday. That discussion is recorded at columns 1705 and 1708 of Hansard. The matter concerns problems associated with medical testing, the screening requirements for certain jobs and the problems which can arise when, through an advertisement or otherwise, an employer indicates that a successful application will depend on medical testing or screening or indicates that non-symptomatic conditions which may lead to future disability will prevent employment. Amendment No. 56F deals with a more subtle situation; HIV/AIDS is an obvious example. It might also apply to epilepsy or to multiple sclerosis in its early stages. One way to get round this problem as regards advertisements may be for prospective employers to state in their advertisements that their company is a disabled opportunity employer. However, of course all employers should be disabled opportunity employers and they should not need to spell that out. There is a problem here and we are not entirely sure how to deal with it. I am the first to admit that these amendments are not perfect. If the Government could accept the principle of the argument and recognise that there is a problem, perhaps after discussion either the Government or ourselves could return with a redraft of the provision. The point is to ensure that the Government recognise the potential problem which could occur with advertising and interviews. We are not sure that the Bill goes far enough in this respect. It would be helpful if the Government could tell us whether they think it does go far enough and if so, how. I hope that when the Minister replies he will not say that people can apply to industrial tribunals. Of course they can, but it is a lengthy and offputting business. The Bill is intended to end overt discrimination against disabled people but it will still be possible to discriminate against a disabled person at the early stages of a job placement, such as the advertising stage or later. The Bill's provisions depend upon the disabled person being aware that discrimination has taken place, but it will often not be possible for a disabled person to be aware of and to challenge this discrimination. An example of this is the research carried out by Scope in 1990 which showed that

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people with cerebral palsy were often rejected at the application stage when they were as well qualified as their able-bodied counterpart. I should make it clear that the amendment does not prevent the use of medical testing or screening but is intended to prevent the requirement that a successful application will depend on medical testing or screening. That is an important distinction. For example, I am advised that Texaco requires every prospective employee to take a medical examination but the employer—that is the company—is never advised by the medical unit of the reasons why a prospective employee failed a medical. There is a problem here. We touched on these matters on Tuesday at an earlier stage of the Bill. As I have said, I am the first to admit that this amendment is not perfect but it is an attempt to try to get round this problem. It would be extremely helpful if the Government could now tell us whether they recognise that there is a problem, and if so—if these amendments are not the right way to deal with it—whether they can make a suggestion. I beg to move.

Lord Addington: This amendment covers much of the ground that was covered under Amendment No. 23 which I moved on Tuesday. This amendment might constitute a better opportunity for including the provision in the Bill as it states what one should or should not be able to do when advertising a job. I hope that the Minister will give us more encouragement than we received on Tuesday, although we did not receive a totally unfriendly response. Does not the Minister consider that this is a good opportunity to give clear guidance on what is and is not acceptable in job advertisements?

Lord Inglewood: As the noble Lords, Lord Carter and Lord Addington, commented, to some extent we are going over ground which we covered on a previous occasion. On that occasion there was a clear difference between us on some aspects of the matter, and I sense things will be no different today. Having said that, I hope that I shall be able to throw some light on these provisions and that that will be of assistance to the Committee because, as always, I am here to try to be helpful. The key to understanding Clause 11 is that it does not make it unlawful to mention health requirements in a job advertisement because the requirements may be entirely justifiable for the job in question. Employers can be entitled to reject applicants on health grounds. Indeed it may be a legal requirement in certain circumstances not to have a particular health problem in some jobs. Therefore it would be quite wrong to have a blanket ban on employers mentioning health requirements. What is important is to cover the problem of employers trying to dissuade disabled people from applying for jobs that they might be able to do—perhaps with a reasonable adjustment—or stating in advertisements that certain health requirements will be applied and claiming subsequently that the requirements were not applied in practice. Amendment No. 56F would ensure that industrial tribunals must, in appropriate cases, assume a disability-based reason where advertisements suggest that the employer will not employ a person with a non-symptomatic potentially disabling condition. As we explained on previous occasions, a tribunal can only

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hear a case brought under the Bill by a person who has or had a disability. Non-symptomatic conditions are not a disability and there will be no cases to which this advertisement could be relevant. As I have already mentioned, we have debated a number of times the merits of covering people with conditions which have no symptoms or effects and we have made it quite clear that that does not fall within our definition of disability. I appreciate that that may not be what those on the Benches opposite want to hear, but at least I have been consistent with what I said before and that is the position of the Government. I do not want to rehearse those arguments again other than to remind the Committee once more that this is not a general anti-discrimination Bill. The Bill is about disablement and discrimination in regard of it. Amendment No. 56E would ensure that industrial tribunals must assume a disability-based reason in the case of advertisements which suggest that the employer will decide whom to employ on the basis of medical testing or screening. I can see that the purpose of this amendment has more bearing on what we are seeking to do in the Bill. If an employer discriminates on the basis of evidence found from medical testing, that would be caught by the Bill as much as any other discrimination. But we are not seeking to ban medical testing or screening. There are legitimate uses which employers can make of these procedures, as we discussed on Tuesday when we discussed the amendment put down by the noble Lord, Lord Addington, which sought to limit the scope for employers making use of such tests quite considerably. The noble Lord referred to that amendment. However, that is not the same thing as saying that employers must not face certain consequences if they advertise in terms which indicate that applicants must undergo a medical test. Clause 11 goes a long way—perhaps all the way—to meet the concerns addressed in this amendment. It applies where the terms of the advertisement might reasonably be understood as indicating that applications might be determined to any extent by reference to the successful applicant not having any disability, or not having a disability of the kind the complainant has. In particular I refer here to Clause 11(1) (e). It seems to us that Clause 11 already achieves the result which this amendment seeks. On that basis I hope that the noble Lord, Lord Carter, may feel that his concern has been covered and that he can withdraw his amendments.

Lord Carter: The Minister is absolutely right; he always tries to be helpful but the problem is that he has a varying success rate. His reply was extremely helpful. He has at least satisfied us on the point that he made at the end of his reply as regards what is caught by the clause. Obviously I wish to read what he has said. I think he has answered the problem that we thought we could perceive. In the meantime I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 56F not moved.] On Question, Whether Clause 11 shall stand part of the Bill?

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Lord Renton: Notice has been given of an intention to oppose that Question. I believe that the clause should stand part of the Bill. However, I shall be grateful for clarification because it is ambiguous in its meaning and effect. Various circumstances are set out in subsection (1). One understands them. However, when it comes to subsection (2) we are told, assuming that a complaint has been made by a disabled person, that:


    "The tribunal hearing the complaint shall assume, unless the contrary is shown, that the employer's reason for refusing to offer, or deliberately not offering, the employment to the complainant was related to the complainant's disability".

When I read that I wondered what was to be the consequence of that finding by the tribunal. Was it to be regarded as an aggravation of the complaint or a defence of exemption from it? I suggest that between now and Report stage the Government should ask the parliamentary draftsman to look at subsection (2) so as to make it abundantly plain and to remove ambiguity. It may be that in discussion of the two previous amendments my noble friend Lord Inglewood made the position absolutely plain. However, both he and the noble Lord, Lord Carter, speak so quickly that I am afraid that my still reasonably alert mind cannot take it in fast enough.


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