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Lord Henley moved Amendment No. 3:


Page 4, line 18, after ("fails") insert ("without justification").

The noble Lord said: My Lords, in moving Amendment No. 3, I should like to speak also to Amendments Nos. 5, 6, 8, 9, 10, 13, 14, 16, 17, 18, 26, 27, 51, 52, 57, 58, 59, 60, 61, 62, 72, 73, 76 and 77. I believe that that concludes the list. I apologise for putting such a large group of amendments before the House, but since some were tabled on Friday—I believe that many were tabled before that—it behoves me to give a brief explanation of them. I assure the House that they are all relatively minor and technical.

Amendment No. 3 is a technical amendment which seeks to ensure that an employer is not liable for justifiable non-performance of a duty to make reasonable adjustments under Clause 6. Such a failure is not unlawful if it can be justified. That comes under Clause 5(2). Amendment No. 16 does the same in relation to trade organisations under Clause 14.

Amendments Nos. 5, 17, 26, 59, 60 and 61 are consequential amendments which move the meanings of "section 6 duty", "section 15 duty" and "section 18 duty" from Clauses 5, 14 and 17 to the main clause dealing with interpretation in the Bill. This is necessary because they are referred to in other clauses.

Amendments Nos. 6 and 18 ensure that the references to "arrangements" in Clauses 6 and 15 do not inadvertently imply that this word has a restricted meaning elsewhere in the Bill.

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On Amendments Nos. 8, 9 and 10, Section 6(6)(a) provides that an employer has no duty of reasonable adjustment if he does not know and could not reasonably be expected to know that the disabled person had applied or might apply for a job with him. Amendments Nos. 8, 9 and 10 prevent any mistaken impression being given that the condition applies in the case of duties owed to an employee.

Amendments Nos. 13 and 14 extend the exemption for charities in Clause 10(1) to include charities in England and Wales which are not registered, and ensure that "charity" in this Bill has the same meaning as in the Charities Act 1993. (There is no registration in Scotland or Northern Ireland). With these amendments, all charities would be similarly treated in the Bill.

Amendment No. 27 clarifies Clause 23(3), which relates to the power of a court to modify an agreement where one of its terms is void under this section.

On Amendment No. 51, Clauses 47 and 48 provide for the Secretary of State to draw up and issue a code of practice to support the employment rights given in Part II of the Bill. Clause 47(9) enables the code to cover the position of contract workers. Amendment No. 51 is a drafting amendment to make clear that references in Clause 47(3) to "employment", "employer" and "employees" also extend to contract work.

On Amendment No. 52, Clause 50 makes provision for what has become known in the context of the other anti-discrimination legislation as the "questionnaire procedure". It is a procedure to assist a person who considers he may have been discriminated against contrary to Part II of the Bill to decide whether to institute proceedings and, if he does, to formulate and present his case in the most effective manner. Amendment No. 52 is a drafting amendment to ensure that the definition of "respondent" reflects the fact that the procedure may be used either before or after actual proceedings have been commenced.

The purpose of Amendments Nos. 58 and 62 is to define the meanings of the terms "profession" and "trade" for the purposes of the Bill. Amendments Nos. 72, 73, 76 and 77 will ensure that the drafting in paragraphs 4 and 8 of this schedule is consistent with that in Clause 53(1), to which those paragraphs relate. Amendment No. 57 defines the meaning of the term "premises" for the purpose of the Bill and ensures that it includes land of any description.

I apologise for that lengthy explanation of an even lengthier group of amendments, but it was important to get it on the record. I commend the amendments to the House. I beg to move.

Lord McCarthy: My Lords, now that we understand this—if indeed we do—we fully understand that the noble Lord is saying that all of these amendments are unimportant; that they represent minor changes and merely bits and pieces, but given that, what is amazing is that they could not all have been effected before. We are talking about 25 amendments. Has this happened because the work was contracted out or privatised? What has happened is not normal.

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Lord Addington: My Lords, I share the noble Lord's concern about the surprising number of amendments being tabled at this stage. However, I congratulate the Government on giving us some briefing papers when we finally got the amendments. If they could do that in the future, it might make life a little easier. It would also help us if we had rather more time to read the briefings.

Lord Henley: My Lords, I take the point. As regards the point made by the noble Lord, Lord McCarthy, I am afraid that it was a bad point. I have apologised for the fact that some of the amendments were tabled late, but many were tabled at quite an early stage, providing time for noble Lords to examine them in some detail. As the noble Lord well knows, one of the purposes of Third Reading is to allow us an opportunity to table a number of amendments in order to tidy up the Bill. It would be wrong to send it back to another place imperfectly drafted. Therefore, I hope that noble Lords will welcome the amendments, which I commend to the House.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 4:


Page 4, line 29, at end insert—
("( ) Regulations under subsection (6) may, in particular—
(a) make provision by reference to the cost of affording any benefit; and
(b) in relation to benefits under occupational pension schemes, make provision with a view to enabling uniform rates of contributions to be maintained.").

The noble Lord said: My Lords, in moving Amendment No. 4, I should like to speak also to Amendments Nos. 11, 20, 21 and 56.

My noble friend Lord Inglewood said in Committee stage that he had received representations about the Bill's coverage of occupational pensions and the important issues that may be involved. He said that the Government would be considering the whole matter carefully, including when occupational pension benefits of a disabled person might justifiably be less than those for a non-disabled person. The House will recall that I was able to set out the Government's initial view during the Report stage of the Bill and we have been giving careful consideration to this difficult and complex area.

Clause 4 in its present form will cover the actions of an employer in providing opportunities to employees for pensions and insurance benefits. These will fall within the existing wording of subsections (1) and (2) of Clause 4. However, there is no bar at present to an employer actually setting up an occupational pension scheme which contains discriminatory rules—although we are not aware of evidence that this is widespread. Trustees and managers of the scheme would not be prevented from discriminating by Part II of the Bill because they are not the employer. New Clause 20 will imply a rule of non-discrimination against disabled people into the rules of occupational pension schemes. This means that any discriminatory decision taken by trustees will be contrary to the rules of the scheme. A disabled person who is affected will be able to seek redress through the dispute resolution mechanisms which already exist for pensions schemes.

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However, where a disabled applicant has a pre-existing medical condition which is likely to increase the risk of ill-health retirement or death in service it is important that employers should be able to take just as much account of that as they would if the person were not disabled. However, employers will want to ensure that their decisions are based on sound evidence; for example, actuarial or medical advice. Many disabled people have disabilities which do not affect their life expectancy or likelihood of ill-health retirement and these amendments will make sure they can no longer be unfairly denied access to an employer's pension scheme.

Subsections (1) and (2) in Amendment No. 20 set out the overriding rule of non-discrimination. This makes it a breach of the rules of a scheme for the trustees to discriminate in connection with the provision of a pension scheme to employees. Subsections (3) and (4) have the effect that the various powers to make regulations relating to the position of employers under Part II include power to make different provision for trustees of pension schemes.

Amendment No. 4 makes it clear that the regulations under Clause 5(6) dealing with justification for less favourable treatment may stipulate that additional cost is a valid ground of justification. The second regulation-making power ensures that regulations can enable uniform rates of contributions to be maintained. We intend to consult on the use of those powers; for example, on what might be the kind of additional cost that could justify less favourable treatment.

Amendment No. 11 disapplies the duty of reasonable adjustment for occupational pensions and certain other similar benefits and provides a regulation-making power to prescribe additional scheme benefits to be covered by that exclusion. Again, we shall consult on the use of that power; for example, as to whether the list of benefits is felt to be complete.

Occupational pension schemes are not the only means whereby employers can make provision for their employees' future. There are other insurance benefits and the new clause provided by Amendment No. 21 covers the situation where an employer makes arrangements with an insurance company for insurance benefits, such as private health insurance, or the opportunity for such benefits, to be received by the employer's employees.

The insurance company will act unlawfully against a disabled person under the new clause if it treats him in a way which would be an act of discrimination under Part III if done by the company with regard to a member of the public. That means that refusal to insure a disabled employee, or levying a higher premium, will be unlawful unless it is justified; for example, where there are reasonable grounds for supposing that the disabled person represents a higher risk than normal.

A disabled person would be able to take a complaint against an insurance company and the employer, at the same time if necessary, and an industrial tribunal would decide whether there was discrimination by either of them on the basis of a full view of the evidence.

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Amendment No. 56 defines "occupational pension scheme" as used in the Bill as having the same meaning as in the Pension Schemes Act 1993.

Any of your Lordships who may have come into the Chamber in the past minute or two might ask whether this is the pension Bill being re-rehearsed. For that I apologise. Clearly the impact of pensions and other benefits for disabled people in the workplace is an important matter. We believe that the amendments provide the right balance between meeting the needs of disabled people and non-disabled people in occupational pension schemes and that they place the necessary requirements on employers. They achieve our objectives which I mentioned earlier, as did my noble friend Lord Inglewood. I hope that they will also achieve the support of the House. I commend them to your Lordships. I beg to move.


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