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Lord Swinfen: Grouped with this amendment is my Amendment No. 33. This amendment is intended to ensure that disabled people whose physical appearance may be misconstrued by others should not be considered by employment staff to have deliberately presented themselves in such a way as to negate their chances of finding work. There is ample evidence that disabled people are discriminated against in society, either directly or unconsciously. The Government themselves are putting forward at the moment a disability discrimination Bill to deal with this subject.
There is concern that someone with a disability could be considered to be not actively seeking work under this subsection. The way this subsection has been drafted could mean that someone with a facial disfigurement, who had been refused interviews or offers of work because employers could not cope with his physical appearance, could have his efforts ignored as steps actively to seek work. Surely that is not the Government's intention.
Some disabled people whose condition may not be obvious may nonetheless present an appearance as unkempt or sweaty as a result of symptoms of an illness or disability. Some disabilities such as anxiety states, diabetes and Brights disease cause heavy sweating. Someone with a mental health problem may have difficulties on occasion in presenting himself to an employer as the employer would expect, but this would be as a result of the disability, not because he had deliberately set out to fail a job interview. Can my noble friend give assurances that disabled people whose condition could result in a physical appearance which some employers or Employment Service staff may find unappealing should not be caught by this subsection?
Lord Harmsworth: From the point of view of an employer someone's appearance may be important. An employer has a right to expect a standard which would not upset a customer. From that point of view an employee's appearance may be relevant. I personally think that too much attention should not be paid to the kind of controls which this part of the Bill provides because reasonableness usually prevails.
Lord Mackay of Ardbrecknish: My noble friend has just made a common-sense point. Amendment No. 32 seeks to remove an important provision from the Government's amendment and so from the Bill. I wish to give the Committee a quick and clear indication of our intentions in this area. I am sure that the Committee will agree with me that the majority of jobseekers are committed to looking for work and make every effort to try to find a job. They would not dream of undermining their chances of obtaining a job by their behaviour or by deliberately presenting a certain appearance or dressing in a certain way which they knew would make them unacceptable to the employer.
However, there are unfortunately a few people who are not prepared to put their best efforts into finding work and who are prepared to sabotage their chances of finding employment. It is surely right that if someone undermines his chances of obtaining employmentfor example, by being abusive to an employer at a job interviewhe should certainly not be able to claim that attending that interview is an active job step. We want to make sure through the regulations that people in this minority group cannot, on the one hand, undermine their chances of getting a job while still claiming that the very activities that they have undermined are active jobsearch steps.
To Members of the Committee who are keen on beards, earrings and the like, perhaps I may give an example of where problems could be caused by someone who does not really want a job but has to fulfil the actively seeking work requirements. Perhaps on Humberside, where the food industry is a major player in the labour market, someone is sent along to a food processing factory, safe in the knowledge that the food processing factory has to ensure that it obeys all the standards and rules and health and hygiene regulations, exercises due care and diligence, and so on. One of those rules happens to be, certainly in the most sophisticated sector of the food processing industry, that if Members of the Committee were to visit the factory they would have to put on hairnets. If they had a beard they would have to put on a face mask. It would
There are common-sense situations which we ought to address to deal with that tiny minority of people who, I am afraid, do exist and who are quite capable of working out how they can obey the rules in order to remain entitled to benefit but make dashed sure that they do not get any job that they actively seek.
I hope that nobody thinks that anything that I have said sounds sinister or shows that I have some deep underlying motivation. It is simply a rule that we wish to include in order to prevent a very small number of people abusing the system. I believe that the fears that have been expressed tonight, and on other occasions, on this issue are totally unjustified.
Interestingly enough, Amendment No. 32 seeks to put a provision in the Bill that "relevant acts" shall be considered. However, there is no indication of what would count as a relevant act. Having removed the regulation-making power, how would anybody know what was a relevant act? The effect of the amendment is that much that would be dealt with in regulations would be left to the discretion of the adjudication officer. I am certain that that is not what the noble Baroness and the noble Earl would wish to bring about.
I turn now to Amendment No. 33. I am grateful to my noble friend for tabling the amendment. It raises an important issue and allows me, even at this late hour, to place a few sentences on the record which I hope will not only help him but, more particularly, will help anyone who falls into the category of persons he mentioned.
The current regulations provide that in determining whether a jobseeker has met the condition of actively seeking employment all the circumstances of the case, including physical and mental limitations, will be taken into account by the adjudication officer. That includes any aspect of his appearance connected with his disability. I should like to make it absolutely clear that that will be carried forward to the JSA regulations.
I had better start again. This has become quite convoluted. I was trying to go more quickly than I should have done and I shall probably have to go back a phrase and start again because I do not want anybody to be in any doubt when they read what I said about the issue.
I mentioned being carried forward in the JSA regulations, a point made explicitly in the references to physical and mental limitations in Clause 6A(2) (b). As I have just explained, Clause 6A(3) provides for regulations to make provision for acts of a person which would otherwise be relevant to be disregarded in certain
Again I should like to make it clear for the record, in case there be any doubt, this cannot and will not be used in relation to involuntary aspects of appearance, in particular those connected with disability.
Earl Russell: I thank the Minister for that reply. However, I am afraid that he has rather missed the point of my concerns about relevant acts. I knew that I had not specified relevant acts. I knew that the effect was to leave it to the discretion of the adjudication officer. The Minister states that I cannot have intended that. I do not see why not.
The Minister has convicted himself of going down the road of fussy draftsmanship against which the Renton report warns us. You really cannot set out in advance what all the relevant acts are to be. In the nature of language, you cannot know what is relevant until you have a question. You cannot have a question until you have a case. Therefore you cannot know what the relevant circumstances will be until you have the evidence of the case. That is why I did not put in the amendment the circumstances which were to be relevant. I believe that that is good legislation. I am sorry that the Minister thinks otherwise.
Unlike on one of the previous amendments, I understood what the Minister said this time. The point about the food factory is well taken. I agree that appearance may matter. My concern is that the Government are trying to achieve the point by disregarding other acts which would have been relevant. I seek to argue that that is the wrong way to go about it. I have not had a response to that suggestion.
As so often, I believe that the Minister is concerned with intention. His remarks about people who were not genuinely looking for work rather proved that that was the basis for his concern. One simply cannot get at intention if one chooses simple to disregard half the evidence. It is not a proper judicial procedure. I hope that he will think again about disregarding other evidence. Perhaps we can then find out whether it is the right procedure with regard to the person's whole record.
The Minister has not thought enough about the number of difficulties that he will get himself into once he starts going into appearance. The provision which allows him to disregard acts which would otherwise be relevant will only make the situation worse.