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Lord Addington: My Lords, I believe this is a sensible and reasonable amendment in that it seeks to bring together parties in order to discuss the problems. I hope that the Government will look favourably upon that approach to the problem.
Lord Henley: My Lords, the noble Lord, Lord McCarthy, has explained how his amendment empowers the National Disability Council to set up local conciliation committees. He described them as similar to those set up under the 1965 race relations legislation to investigate and deal with job advertisements which are unlawful under the first part of the amendment.
Such advertisements would indicate either that the application could be determined by reference to the successful applicant not having a disability or that the employer was reluctant to make a reasonable judgment.
During Committee stage we had a fairly extensive debate on the role of the National Disability Council. My noble friend explained at the time that it will be an advisory body charged with providing high level policy advice. It is not part of its role to investigate or police this legislation, nor would it be appropriate or necessary for it to be empowered to create the network of local committees that the noble Lord suggests.
Nor do the Government believe that the creation of yet another tier of bureaucracy is either necessary or desirable. The right organisations for dealing with complaints under Part II are ACAS and the industrial tribunals. But, perhaps more fundamentally, I do not believe this amendment would have the desired effect. Why should employers always risk a complaint to one of these local bodies even if they were perfectly justified in saying that people with particular disabilities need not apply? The requirement could be perfectly reasonable. The point made by the noble Lord, Lord Monson, is perfectly valid. Obviously it is open to people like the Armed Forces to make it quite clear that in looking for recruits they need fit and healthy young recruits. Under this amendment, it might be that an employer saying that fitness was necessary for a physical fitness instructor could find himself under investigation by a particular local committee, should that committee so wish.
Baroness Hollis of Heigham: My Lords, is this correct? The whole thrust of the Bill in terms of the armed services and the rest of it is that where a disability is relevant to the performance of that job the employer may not be required either to interview that person or to offer him a job or whatever. It is like the absurd case of someone entering a restaurant wearing sunglasses and being offered a menu in Braille. Is he therefore being discriminated against? That applies only if the condition is relevant, that person is unfavourably treated and it would have been reasonable for the employer to have acted differently. The Minister may be giving the House a false impression of what the law will do.
Lord Henley: My Lords, the noble Baroness has taken rather an odd example. I was drawing the attention of the House to the possibility that the local committee of the sort that the noble Lord, Lord McCarthy, might want to set up, in fits of gross over-enthusiasm, might wish to investigate cases that I do not think were appropriate. I do not think it would be right so to do.
Baroness Seear: My Lords, I used to sit on one of these committees under the old Race Relations Act. They were run entirely by voluntary people and there was nothing bureaucratic about them. They might have been regarded as rather amateur but certainly they brought people together to discuss the issues. They played a small part in the conciliation process. It was not a matter of arbitration but rather of conciliation on the part of local people acting on a voluntary basis. I believe that even the secretary was unpaid. Those committees worked rather well. They were not revolutionary and they did not achieve great results, but they offered useful advice.
Lord Henley: My Lords, I am most grateful to the noble Baroness. I daresay they need not be necessarily bureaucratic; I was saying they are unnecessary. I also have to say that in the case of an individual of the sort who put in the most grossly discriminatory sort of advertisement of the sort that we all thought was particularly awful, I have severe doubts as to whether he would actually take much notice of a committee of this sort. It seems very odd to create an offence, which is what this amendment does, without any sanction against that offence other than, as the noble Baroness puts it, a collection of rather worthy souls, unpaid and voluntary, going round saying, "Can we have a chat"? The sort of person who will put in the sort of advertisement that the noble Baroness and others are talking about is the sort of person who, as it were, would put up two fingers to such an approach.
Baroness Seear: My Lords, I do not think I was worthy or the sort of person who wanted to go round having a chat. I remember that my particular conciliation body was chaired by an extremely well known industrialist on whom the noble Lord himself would, and I daresay has, relied on many occasions.
Lord Henley: My Lords, I daresay that might be the case. What I am saying is that for an amendment of this sort to create an offence without an appropriate sanction seems an odd way to go about things. I think the sort of people who would be likely to be grossly in breach of the sort of offence that the noble Lord is creating are not the sort of people who would respond particularly well to such an approach.
Let me turn to our own approach and explain that. Obviously I share with the noble Lord and both noble Baronesses a desire to end discriminatory and unfair advertising. I am pleased to note that the amendment leaves in place our approach under Clause 12, and I hope that the noble Lord does at least recognise its value. I believe that perhaps his amendment is supposed to be "belt and braces", but I believe that on this occasion our braces are perfectly adequate.
We are opposed to advertisements which blatantly suggest that disabled persons will be discriminated against. We are not aware, however, that such advertisements exist in the sort of numbers that the noble Lord implied. We would also be opposed to advertising which might tend to put off disabled applicants, whether intentionally or not, who might be able to do the advertised job. The Government's approach is the best way to ensure that employers take more care to ensure that advertisements give a fair description of what is genuinely required for the job. If a disabled person who meets the advertised requirements is refused the job, the employer will be at risk of tribunal proceedings, carrying the real sanction of an award of compensation.
We have heard that the amendment seeks to bring the Disability Discrimination Bill into line with other anti-discrimination legislation. But this fails to take into account the very real differences between disability on the one hand and race and sex on the other. In all but the very rarest of cases a person's race or sex does not affect his or her ability to do a job. I believe that cannot
The noble Lord also said that the only way in which the Government's clause could be of any use to disabled people is if they actually apply to a tribunal. This is not the end of the matter, however. It will be made clear to employers in the code of practice that one consequence of not taking care to ensure that their advertisements reflect justifiable job requirements is that a tribunal claim against them could well be successful if a disabled person is turned down who could do the job despite what the advertisement says about health requirements. In considering advertisements, employers will be well advised to consider the duty of reasonable adjustment in identifying health requirements which might be overcome by such an adjustment. No employer wants to trigger a tribunal complaint unnecessarily. The Government's approach will effectively put a stop to any blatant discriminationif it existsand will also be effective in making job advertisements fair to all employers and disabled people. As I have explained, I believe our approach in Clause 12 is the right one
I believe that Clause 11 is now Clause 12. I understand that the smaller firms are not covered by this clause which the Government have put forward. It seems to me strange that this cannot be so. We can perhaps agree that firms with 20 employees or fewer will not be subject to the full rigours of this Bill as regards employment, but surely an anti-discriminatory clause could be included somewhere in the Bill, or in regulations, which states that an employer with 20 or fewer employees could not produce an advertisement which was discriminatory and indeed derogatory towards disabled people. It seems that that is possible.
I must apologise to your Lordships' House for only having found anecdotal evidence on this matter so far, but I know that such advertisements have appeared in the past, even in the theatrical world. We want to make sure that they do not appear in the future. Can the Government extend Clause 12 in some way to cover the smaller employers as well as the larger ones? Otherwise discriminatory advertisements could appear.
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