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Lord Henley: No, my Lords. Again the noble Lord has not listened to me. I shall go on to explain it. I have said that there will also be occasions when it is not necessary to consult individual people. The regulations will exist far into the future and I do not believe that they should bind us to consult on occasions when it is not necessary to do so. For example, let us say that we are consolidating the regulations. That is a purely technical act which the noble Lord will understand. Does he suggest, as the amendments do, that we must go out and consult all the relevant interests merely for an act of consolidation? That is what the amendments say.

Lord McCarthy: My Lords, the Minister knows perfectly well that a consolidation Act is entirely different. If he wishes to bring forward amendments saying, "but not a consolidation Act", he can, if he wants to be silly.

Lord Henley: No, my Lords, if we are consolidating regulations, under the amendments we would have to do that. There would also be occasions when we only need to make or amend regulations covering a narrow area, say of reasonable adjustment. I believe that it would then be right to consult purely those who are appropriate. They may not necessarily be organisations representing employers as a whole, they may be organisations representing one group: the financial sector, the heritage sector or whatever it is. It would be wrong to impose a burden on the Government or those whom we consult of an unnecessary exercise. Remember, there is a burden on those whom we consult.

I am clear that we will consult and I can give that assurance to my noble friend. We shall consult in the most appropriate way for whatever regulations are under consideration. In the light of that commitment, I hope that my noble friend will feel able to withdraw her amendment despite the various obscurities suggested by the noble Lord opposite.

Baroness O'Cathain: My Lords, I thank the Minister for his reaction to my amendments. I am puzzled and slightly worried about the way the debate has gone. The Opposition obviously wish to consult employees, and that is a valid point. However, the point I make in moving the amendment is the lack of consistency. For the sake of neatness, we should be consistent on the face of the Bill because in some areas the wording is "consult" and the wording is specific about who is consulted, whereas in others it is not specific.

I absolutely accept that the Minister will consult. With everything that has been said on Second Reading and throughout the Committee stage, every time consultation has been brought up and again this evening there is the commitment to consult. I cannot understand why, if the Government have made that commitment—and I believe them—they still think it is better to have a Bill which is inconsistent on its face. Whereas in three specific areas there is consultation with named organisations or their representatives, in other areas, they are not prepared to do that.

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It is a difficult problem. I do not wish to press the amendment to a Division tonight. I shall reconsider it and will almost certainly come back to it on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 34:

Leave out Clause 6.
The noble Lord said: My Lords, I spoke to Amendment No. 34 with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Clause 7 [Duty of employer to make adjustments]:

Lord Henley moved Amendment No. 35:

Page 4, line 24, at end insert ("occupied by the employer").
The noble Lord said: My Lords, in speaking to Amendment No. 35, I wish to speak also to Amendment No. 38.
Amendment No. 35 is necessary in order to make it clear that the duty of employers to make reasonable adjustments where any physical feature of premises causes substantial disadvantage to a disabled person in comparison with those who are not disabled refers only to an employer's own premises. It clarifies that employers are not under a duty to make reasonable adjustments in respect of, for example, features of the disabled person's private house. It would also not apply to some other employer's premises in the case, say, of a travelling salesman or to the disabled person's private home in the case of a homeworker.
It may help at this point, to mention the issue of employers who are in rented property and the implications for the duty of reasonable adjustment. The status of terms and covenants in leases is an important matter. There must be a question as to whether or not covenants in leases are relevant to reasonable adjustment. We believe they are and we believe that there should be a limit on the extent to which covenants can prevent reasonable adjustments being made. Otherwise employers in leased buildings would be absolved from the need to make any adjustments—however reasonable—that were in any way in breach of the covenant. We will be giving this matter our careful consideration and making our position clear on this at Third Reading, when we shall table any necessary amendments.
Turning to Amendment No. 38, as noble Lords are no doubt aware, it is the Government's view that the duty on an employer to make an adjustment should provide a fair balance between what we can legitimately ask of employers and the needs of disabled people.
We have listened carefully to the concerns raised in another place and by employers and consider that it would be helpful to list the key criteria for "reasonableness" on the face of the Bill. We believe that the principal factors which should be taken into account in determining whether it is reasonable for an employer to take a step are as follows, in no particular order of priority: the first is the extent to which the step would prevent the effect in question. For example, if the only adjustments possible could make no more than a small

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improvement to the output of someone who was significantly under-productive, then they might not be reasonable if they were costly or disruptive.
The second is the extent to which it is practicable for the employer to take the step. For example, it might not be reasonable for an employer needing an employee urgently to have to wait for an adjustment to be made to allow a disabled person to be employed. That is more likely to be the case with smaller employers but could apply to larger ones. Also, an adjustment would not be reasonable if it is impossible because the employer would be in breach of health and safety or fire laws were it to be made.
Thirdly, there is the cost to the employer of taking the step. Cost includes use of staff and other resources and disruption, as well as direct money costs. We have always said that many adjustments will involve little or no cost to the employer. But some clearly do and it is obviously right that that should be taken into account.
Fourthly, there is the extent of the employer's resources. Although the size of a business is not necessarily an indication of the resources available, it is more reasonable for an employer with considerable resources to make an adjustment with a significant cost than for an employer with few resources. Also, it would not normally be reasonable for an employer to spend fewer resources on retaining a disabled person than on recruiting a replacement.
Finally, there is the availability to the employer of financial or other assistance with respect to taking the step. A step is not unreasonable if the availability of help from an outside organisation or from the disabled person would compensate for the factors that would have made it unreasonable. For example, it might be unreasonable on grounds of costs for a particular employer to provide a laptop computer with a Braille keyboard. However, if a suitable one could be loaned or borrowed when needed, for example under the access to work scheme, or if the individual has a suitable one he could provide, then the employer could not successfully claim that provision of the laptop was unreasonable because of the cost.
The code of practice would, of course, give further examples and guidance on the question of reasonableness. I hope that the House will be reassured by the criteria which this amendment proposes to set out on the face of the Bill. I beg to move.

Lord Carter: My Lords, it is interesting to see the way in which the Government have presented the amendment, because it relates to one which I moved in Committee about reasonableness on the part of public authorities. I was interested in the point which the Minister made about the covenants in property agreements by which the landlord, presumably, would not unreasonably be able to prevent an employer who was a tenant asking for improvements to the building to enable access.

The reason I raise the point is that I have a case in mind in which I am involved at the moment. It is of a company which employs disabled people and it has taken on an office in which a condition of the lease was that the landlord should provide a ramp for wheelchairs.

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The landlord wishes to do so, but in order to do so the ramp has to be on the pavement, on the public highway. The highway authority has resisted that at the moment for various technical reasons with which I shall not bore the House.

I moved a probing amendment on the basis that a public authority should not be unreasonable in its attitude towards the provision of disabled access. The answer that I believe the Minister gave was that in the example that I gave the Town and Country Planning Act would take precedence over this Act and it could be pleaded in aid if it had been said that it would not be right to provide the access, namely a ramp for wheelchairs, even if it seemed to be reasonable to do so. I believe that the Minister said that the Government are considering this matter in the terms of the regulations that they may draft. They may have to think extremely carefully about the relationship between the employer tenant, the landlord and the public authority if the disabled access has to be provided on land that is owned by the public authority.

7.30 p.m.

Lord Henley: My Lords, I note the point that the noble Lord makes. His first point on covenants was in a sense something that I was flagging up. It is a problem that we perceive. It is wider than one thinks when one considers the number of employers who are in leased accommodation. I wanted merely to flag it up and say that we shall return to it at Third Reading.

Perhaps I may also examine the question of the three-way relationship between the landlord, the tenant and the local planning authority which might be in a position, either as the landowner or purely as the planning authority, whereby it might also have an interest. I accept that there could be complicated relationships. It might be better to pursue that by means of correspondence if it is felt that something is needed either by way of regulations or further amendment, along with amendments relating to covenants, at Third Reading. I am prepared to consider that, and I am grateful for the opportunity that the noble Lord has given me of flagging that up as well. I beg to move.

On Question, amendment agreed to.

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