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Baroness Miller of Hendon: My Lords, the noble Lord the Minister said that it was a question of judgment and he is quite right. He thinks eight weeks is correct. I think that four weeks is correct. He mentioned that he thought four weeks was precipitate. I do not think it is precipitate. We have become so friendly over this Bill that it would have been nice to make a suggestion of splitting the difference and going for six weeks, but, listening to the noble Lord the Minister, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 122:


Page 80, line 13, leave out ("(7A)") and insert ("(7C)")

The noble Lord said: My Lords, I should like to move Amendment No. 122 and speak also to Amendments Nos. 123 and 124. Their purpose is to ensure that the new circumstances, in which selection for redundancy amounts to unfair dismissal added to Section 105 of the Employment Rights Act 1996 by paragraph 5(3) of Schedule 5, is inserted at the correct point in the section, and that the cross-references in that section to that new circumstance, and another circumstance added by the Tax Credits Act 1999, are right.

In drafting paragraph 5 of Schedule 5 we have unintentionally made incorrect consequential amendments to Section 105 of the 1996 Act regarding the right not to be dismissed by means of selective redundancy. Section 105 has to be changed in the light of the new right introduced under Schedule 5 to ensure that an employee cannot be fairly dismissed by selective

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redundancy if he is either selected for participating in official industrial action during the first eight weeks of industrial action, or if he is selected for redundancy after the eight week period and the employer has failed to take reasonable steps to resolve the dispute.

To take account of the new provisions, paragraph 5 inserts a new subsection 7A into Section 105 of the 1996 Act. However, since its enactment in 1996, subsections 7A and 7B have already been inserted into the Act (via the National Minimum Wage Act 1998 and the Tax Credits Act 1999 respectively.)

These amendments simply ensure that all the references are right. I beg to move.

Baroness Miller of Hendon: My Lords, I have to say to the noble Lord the Minister that I am very grateful for his explanation of what these amendments are about. I have to say that because they were tabled so late I did not have an opportunity to read them properly and I could only understand about 7A changing to 7C and 7A being got rid of and putting in 7B, and then, further on, we had to take out 7A and insert 7C. Because the explanation came late I did not understand it and I think that the note I have is not really joined to the amendment. As it concerns Schedule 5 perhaps the noble Lord the Minister could answer a question--either by way of a note from his advisers or, alternatively, by writing to me.

I understand that the Bill provides for a worker who is dismissed during that protected period of eight weeks, which we were discussing a moment ago, to be able to claim compensation for unfair dismissal. Will the noble Lord the Minister say what factors will determine the amount of compensation payable? More specifically, will there be scope for the award to be reduced if the employer can demonstrate that the union failed to behave reasonably during this period? If the noble Lord the Minister is able to help me with that I shall be most grateful. Otherwise I shall feel that I have merely stood up out of turn.

Lord McIntosh of Haringey: My Lords, what these amendments do is to add selection for redundancy as a possible new circumstance which amounts to unfair dismissal. That is all it is doing. It does not change any of the unfair dismissal procedures.

On the issue of what will affect the compensation payments, that clearly is a complicated issue outside the scope of these amendments and I will therefore have to write, in detail if necessary, to the noble Lady. In brief, the answer is that the award will be based on the tribunal's assessment of the individual's circumstances and behaviour. A tribunal may take into account any misconduct which led to his dismissal but that does not include his participation in industrial action. If the individual's conduct has contributed to a selection for dismissal--for example, behaviour on the picket line--then it can be taken into account by the tribunal in determining both the case and the award.

I hope that that may be enough and that I may be spared the duty of writing to the noble Baroness. I beg to move.

On Question, amendment agreed to.

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Lord McIntosh of Haringey moved Amendments Nos. 123 and 124:


Page 80, line 14, leave out ("(7)") and insert ("(7B) (inserted by Schedule 3 to the Tax Credits Act 1999)")
Page 80, line 15, leave out ("(7A)") and insert ("(7C)")

The noble Lord said: My Lords, these amendments have been spoken to. I beg to move en bloc.

On Question, amendments agreed to.

Lord Razzall moved Amendment No. 125:


After Clause 16, insert the following new clause--

DISCRIMINATION IN THE WORK-PLACE ON GROUNDS OF SEXUAL ORIENTATION

(" .--(1) The Secretary of State may make regulations for the purpose of prohibiting, in relation to any employment matter, discrimination by an employer against another person on grounds of that person's sexual orientation.
(2) In subsection (1) "employment matter" includes--
(a) the offer or refusal of employment;
(b) the termination of employment;
(c) terms and conditions of employment;
(d) the provision of training or skills development opportunities;
(e) promotion and career progression.
(3) Regulations under subsection (1) may--
(a) specify the types of action, or failure to take action, which are to be taken to constitute discrimination for the purpose of this section;
(b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal in relation to cases brought under this section;
(c) provide for penalties to be imposed or, as the case may be, compensation to be awarded in respect of offences committed under paragraph (a) above.
(4) No regulations shall be made under this section unless a draft has been laid before, and approved by resolution of, each House of Parliament.")

The noble Lord said: My Lords, with the leave of the House, in moving Amendment No. 125 it might be convenient if I spoke also to Amendment No. 126. Amendment No. 125 is the same amendment that was moved from these Benches in Committee which goes to the requirement to insert a clause in the Bill dealing with the issue of discrimination against employees or potential employees on the grounds of their sexual orientation. We have brought this back today but we do not propose to re-debate the issues that were discussed extensively in Committee.

It is certainly common ground between the Liberal Democrat Benches and the Government Benches that this is a serious problem for employees and potential employees, so I do not really need to rehearse on Report the nature of the problem. There have been some extremely tragic and difficult cases in recent years. The Government accept that there is a problem. I believe that the noble Baroness, Lady Blackstone, indicated last year, when the Bill on sexual orientation and discrimination ran out of time, that this was an area where the Government were proposing to legislate.

Having listened carefully to what the Minister said in Committee, and having read the Government's remarks in Hansard, I wonder when we are going to have action in relation to the problem. The Government have

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emphasised that the Bill is the last of their cornerstone pieces of legislation affecting rights of employment in this country and that the regulations being made under it and under previous legislation set the framework under which employer and employee rights will be established. But we are now half-way through the Parliament leading to the next general election. If no action is taken in the area by way of this Bill, my fear is that we will have no legislation this side of the next general election to deal with the issue.

The response of the Minister in Committee was that it was a very complicated issue and that the Government were having extensive consultations upon it. Secondly, they had received the report from the Equal Opportunities Commission which said that they must legislate. Thirdly, the attitude was, "It is not my ministry which is responsible. Therefore, don't ask me to do anything about it because, after all, I am a DTI Minister not a Department for Education Minister." I do not regard that as a satisfactory response on such an important point. I return to the fundamental tenet of my argument; namely, that the Government are saying that this is the final piece of their fundamental legislation on employment relations. Surely it is in this Bill that the framework of protection ought to be inserted to enable the necessary consultation to be undertaken, the necessary regulations to be drafted, and the necessary preparations to be made before those regulations are implemented. It must be within the framework of this Bill, not a future Bill, which, I fear, we will not get this side of the next general election.

Amendment No. 126 deals with potential discrimination with regard to age. This is a totally different issue to the one covered by Amendment No. 125. Again, I do not want to tease the Minister as we did in Committee with the fact that the Government have changed their mind on this issue since they were in opposition. At that time they made it very clear that, once elected, a Labour Government would bring in legislation to outlaw discrimination on the grounds of age. The then Tory Government took the view that this was best dealt with by a voluntary code. Although I do not know what the current Tory position is, the Government's position has now changed since their days in opposition. They now believe that this would be best dealt with by way of a voluntary code.

Having read carefully what the Minister said in Committee, the major thrust of my argument is that the arguments that were used against our amendments were put forward on the assumption that, on the face of it, such amendments sought to deal with the very tricky issues which would have to be dealt with in the consultation process. However, that is far from the case. Both amendments simply provide a legislative framework within which the Government can bring in the necessary regulations to outlaw the practices which, after very necessary and extensive consultation, would be determined as appropriate.

If we look at what is happening on the ground with the minimum wage Act and the working-time directive, we find that the Government are conducting a never-ending consultation process with employers and business in order to establish amendments to the

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regulations and modify them. I envisage that that process will happen with regard to the age discrimination regulations which are covered under the Bill. For those reasons, I ask the Government to think again on both of these important issues. I beg to move.

7.45 p.m.

Baroness Turner of Camden: My Lords, I was, unfortunately, unable to be present in Committee when these issues were debated. I had attached my name to the amendments, but I was suffering from flu and was unable to be here. I hope that the Government will be prepared to consider these amendments seriously. I am sure that noble Lords will recall that I have on several occasions sought to introduce legislation on the subject of sexual orientation by way of Private Members' Bills. On two occasions, the Bills I introduced into the House gained the support of your Lordships but failed to make any progress in the other place.

Therefore, this Bill provides us with an opportunity to deal with discrimination in the workplace, which we know does take place. Indeed, the Government acknowledge that it is a problem. It cannot be too often stated that there is no protection in law against discrimination on the grounds of sexual orientation; no protection in law against being treated less favourably; no protection against being paid less; no protection against harassment, no protection against discrimination in promotion and appointment; and no protection, really, against dismissal. I do not want to go into the details here because, as the noble Lord, Razzall, said, they were fully dealt with in Committee. However, there are employers who have equal opportunities policies which cover sexual orientation. In my view, it is necessary to try to change bigoted attitudes, which we know exist. Amending the legal framework is one of the ways in which this can be done. Therefore, I support the amendment.

I also support the amendment as far as concerns age discrimination. I was involved in the work done by the Carnegie Third Age Committee some years ago. Its report was debated in the House at that time. The research undertaken by the committee revealed very considerable discrimination on grounds of age throughout UK industry and commerce. This was even more marked during the years in which mass redundancies, especially in manufacturing industry, became common. Many people who took early retirement did so rather unwillingly, knowing that it was unlikely that they would secure other employment despite the fact that they were some years off retirement age. Some firms later regretted their willingness to dispense with experienced and loyal staff. I therefore welcome the amendment. Having had the opportunity to consider the matter since Committee, I hope that my noble friend the Minister will be able to offer us something in response to the issues which have been raised.


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