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Page 55, line 3, leave out ("desertion or").

On Question, amendment agreed to.

Clause 116 [Regulations as to associations]:

Lord Williams of Elvel moved Amendment No. 36:

Page 62, line 21, after ("before") insert ("each House of").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 121 [Safeguard of employment for members of reserve forces]:

Earl Howe moved Amendment No. 37:

Page 63, line 24, leave out ("section 58 or 59") and insert ("Part VI").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 9. I beg to move.

On Question, amendment agreed to.

4.30 p.m.

Baroness Turner of Camden moved Amendment No. 38:

Page 63, line 29, at end insert--
("( ) After section 1, there shall be inserted--
"Obligation not to discriminate.
1A.--(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another on the grounds that he is or may become a member of the Reserve Forces of the Crown--
(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b) in the terms on which he offers him that employment; or
(c) by refusing or deliberately omitting to offer him that employment.
(2) It is unlawful for a person to discriminate against a person employed by him at an establishment in Great Britain, on the grounds that that employee is or may become a member of the Reserve Forces of the Crown--
(a) in the terms of employment which he affords him; or
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities to services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment.
(3) Subsection (2) does not apply to benefits, facilities or services of any description if the employer is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or to a section of the public comprising the employee in question, unless--
(a) that provision differs in a material respect from the provision of the benefits, facilities or services by the employer to his employee; or

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(b) the provision of the benefits, facilities or services to the employee in question is regulated by his contract of employment; or
(c) the benefits, facilities or services relate to training.".").

The noble Baroness said: My Lords, I rise to move Amendment No. 38 which stands in my name and the names of my noble friends Lord Williams of Elvel and Lord Judd and the noble Lord, Lord Redesdale. We return to this amendment on the issue of non-discrimination in employment because it will be recalled that in Committee, following a briefing that we received from the British Medical Association, we tabled an amendment which sought to make it illegal for employers to try to prevent employees from joining the reserve forces and fulfilling their training and other obligations arising from that. We received information that the Minister was sympathetic to our point of view.

We were assured by the BMA that it is common for employers in the NHS to try to discriminate, despite assurances to the contrary. Some NHS trusts are apparently issuing contracts which do not permit medical staff to join the reserves. The BMA in particular was concerned that the competitive nature of the internal market was likely to lead to an increase in the number of trusts attempting to do that and to put obstacles in the way of staff wishing to join the reserves.

As I said earlier, the Minister appeared to be aware of the BMA's concerns when we discussed the matter in Committee. However, he does not appear to have tabled a government amendment to try to come to terms with those concerns, so we have largely repeated the wording that we tabled in Committee. I hope that the Minister will now be able to say that he is prepared to accept our amendment--or, if not this, something similar which could be accepted formally on Third Reading.

It is not only a question affecting employers in the NHS. Our amendment would cover employers generally because we believe that discrimination against employees who want to become members of the reserve forces should not be permitted and that it should be stated on the face of the Bill that such discrimination is illegal. The BMA is still worried about the matter. Indeed, as recently as this morning I received a telephone call from its office asking whether we intended to pursue the amendment. In the circumstances, I wonder whether the Minister will be prepared to accept the amendment this time round. I beg to move.

Lord Redesdale: My Lords, I support the amendment which returns us to an issue that was raised in Committee. The noble Earl, Lord Howe, said in Committee that one way of avoiding discrimination was to work through the National Employers' Liaison Committee. That body has done great work in the past and should be praised.

However, I should like to press the point that it is not only the National Health Service which could be affected. In the case of the high readiness reserve, what would happen if a particular section of the business community saw that its employees would be needed for particular operations and started to take it upon itself to write into contracts of employment clauses forbidding

27 Feb 1996 : Column 1394

employees from becoming reservists? That is more likely to apply in the case of smaller companies which will fall outside the general system of negotiation. What would be the attitude of the Ministry of Defence to that? How would the MoD address the problem? I realise that it is unlikely that the Minister will support the amendment, and that reintroducing such provisions would need primary legislation which is unlikely to be brought forward. Therefore, what measures does the Minister envisage being taken if the scenario that I have outlined comes to pass?

Lord Renton: My Lords, naturally in principle one should be in favour of an amendment of this kind. On the face of it and at first glance, it looks sensible and sound, but all manner of complications arise. They are analogous when wartime comes--some of us still remember that--with the principle of reserved occupations in time of war. If that principle were to be accepted by the Government as part of our legislation, I expect that the provisions would have to be redrafted stating very considerable exceptions in order to deal with circumstances where it would manifestly be wrong to compel somebody to refrain from employing a person in the reserve forces. Therefore, I would expect my noble friend to be cautious on this matter. I was not able to be present in Committee, but I understand that the matter was at least raised then. I should be interested to hear what my noble friend has to say about it now.

Earl Howe: My Lords, as the noble Baroness indicated, we discussed this issue extensively in Committee. I am not convinced that the case that she makes for an anti-discrimination provision is the best way ahead. The proposal is full of good intent, but I fear that it would not have the desired effect because it would damage the relationship between employers, the reserve forces and those employees who are also reservists.

I am firmly of the opinion that the constructive approach that we have adopted to date should continue. Building and maintaining the three-way partnership between employers, reservists and the Ministry of Defence requires openness and trust.

The noble Lord, Lord Redesdale, mentioned the work of the National Employers' Liaison Committee (NELC) and I too take this opportunity of saying that the Government are most appreciative of NELC's work. It has been particularly helpful during consultations on the Bill. It is upon that body that much of the successful co-operation rests. We have no wish to move from this co-operative approach, which is generally successful, to one which cannot help but be adversarial in nature.

An anti-discrimination measure would also be widely perceived as a punitive burden on employers. The expense to business of complying with such a measure would be unwelcome to employers. Businesses would not welcome the constraints on their management flexibility that would be imposed by having to avoid any suggestion that they were treating a reservist in some way unfavourably. Many employers might as a result come to the conclusion that the easiest way of avoiding the problem was simply to avoid recruiting reservists in

27 Feb 1996 : Column 1395

the first place. Discrimination of that nature at the time of recruitment to employment is inevitably difficult to substantiate.

It follows that far from encouraging the employment of reserves, such a measure could be counterproductive. Any change in employer attitudes would affect not only the volunteer reserves, but also ex-regular servicemen and women seeking to establish a civilian career. Nor do I believe that the amendment would be of benefit to reservists in employment. It would inevitably begin to change the relationship between a reservist and his employer from a constructive and open one into being an adversarial and confrontational one. In those circumstances, neither the reservist nor the employer would benefit.

Perhaps I may comment in passing on a thought prompted by the noble Lord, Lord Redesdale. To achieve even a modest and effective provision in the spirit of the amendment which the noble Baroness has proposed would require a quite substantial Bill in its own right. The Race Relations Act and the Sex Discrimination Act run to over 70 and 80 sections respectively. An initial assessment is that a substantial number of sections would be needed to achieve an equivalent level of protection for reservists.

During the proceedings in Committee and again today, the noble Baroness expressed concern that some employers were attempting to bar employees from joining the volunteer reserves by writing terms into their contracts to that effect. It appears to be the wish of the noble Baroness to make it unlawful to incorporate a term in a contract which purports to bar an employee from being a reservist. I do not believe that such a provision is necessary. The existing law copes with that situation. The Reserve Forces (Safeguard of Employment) Act 1985 provides that it is a criminal offence to sack an employee who is a reservist because of his or her reserve liability. Therefore, if an employee became a reservist in breach of a term in his contract and the employer attempted to sack him, the employer could be prosecuted for so doing. Depending on the circumstances of the case, it might also be an unfair dismissal. If action less than dismissal were attempted that might be constructive dismissal.

I believe that the existing provisions in law achieve the effect that the noble Baroness and other noble Lords desire. I cannot agree that any significant change in the law is necessary. I hope that in the light of my comments the noble Baroness will not press her amendment. I urge her to think again.

Before I conclude, perhaps with the leave of the House I may address briefly two separate but connected issues relating to the Reserve Forces (Safeguard of Employment) Act 1985. In the light of the debate in Committee, we have looked again at the provisions of that Act, which I remind noble Lords gives reservists who enter into a period of permanent service a right to reinstatement in their civilian employment. It also makes it a criminal offence to dismiss an individual for being a reservist before the date on which he is required to report for the purpose of commencing his permanent service. That would leave an individual who attended on

27 Feb 1996 : Column 1396

the day his call-out notice required, but who was not accepted into service, without either of the protections that I have mentioned. That is undesirable and I intend to bring forward a simple amendment on Third Reading in order to rectify that deficiency.

During an informal discussion the noble Baroness, Lady Turner, raised the position under the 1985 Act of a female reservist who was granted maternity leave while called out. The 1985 Act makes no explicit mention of maternity leave. That might not jeopardise the position under the Act of a pregnant female reservist, but I recognise that it would be preferable for the position to be beyond doubt. I will consider whether an amendment can be prepared for a later stage in the consideration of the Bill, perhaps even for Third Reading next week.

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