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Baroness Hollis of Heigham: Perhaps I may respond to the question asked directly by the noble Baroness. The intention of the amendment is to address instances where the employer holds such a perception, even where that perception is ill-founded. Because it is ill-founded the person has no protection, whereas were it well-founded the person would have protection.
If an employer saw somebody on the opposite side of a desk at an interview and said to himself that because that person had a club foot, a damaged fingernail or a facial problem there was no way he would give that person a job, he would not say that that was because of the disability. Does the noble Baroness believe that employers will admit that? How would the candidate prove that that employer had not taken him or her on for the job because of the perceived disability? It is a minefield. I can see the reason for the amendment, but this is a minefield.
People have the most extraordinary idea that they can diagnose what is wrong with other people. If someone has a bad colour they say that he has a blood condition. They are not doctors and know nothing about it, but they form the idea in their minds that a particular person, although he merely has bad skin, looks as if he has a bad blood condition. An employer believes that a person has a bad blood condition because he has diagnosed that in his own mind, and on those grounds he turns the applicant down.
I very much take the point of the noble Lord, Lord Renton, concerning the difficulty of proof. However, suppose that the would-be employee has reason to know, because of something that was said or was seen to be written, that the employer had made that judgment. Suppose that it could be established in court that the employer had made that judgment, that he believed that the applicant did not look a healthy type and looked to him as if he was an alcoholic. People say very indiscreet things when they are interviewing and write very unwise scribbles on interview papers. I have done a lot of interviewing myself and one sometimes writes down some rather strange things to remind oneself of the people one has seen. Some very interesting cases have arisen as a result. Suppose the employer writes "Looks as if he suffers from alcoholism" or "Looks as if he is going to develop tuberculosis". Would that not be actionable in court? I ask that as a genuine question.
Baroness Masham of Ilton: The noble Baroness, Lady Hollis of Heigham, and other Members of the Committee have illustrated very well how complicated the issue of disability can be. It is very important to have trained people who can decide who is disabled and who is not. Many doctors and other professionals are not well trained in matters of disability. I ask the Minister who will sort out these problems, because surely we need to avoid the necessity to go to courts of law if possible.
Lord Mackay of Ardbrecknish: We have had an interesting opening debate on an amendment tabled by the noble Baroness, Lady Hollis, to this opening clause of the Bill, which is of fundamental importance to the effective operation of the ensuing provisions contained in the Bill since it describes and prescribes the definition of the terms "disability" and "disabled person" which, subject to Schedule 1, apply to the main provisions of the Bill. Those Members of the Committee who were with me on the Jobseekers Bill will appreciate that I am more than pleased that the opening clause of the Bill does not say that the definition will be as Ministers decide it will be, because they will recall that I had considerable trouble with that issue on the Jobseekers Bill. However, in this case there is a definition.
Our aim is twofold: to produce a broad general definition of disability which covers those people who would generally be regarded as disabled, and at the same time to produce definitions that can be understood and applied by those who will have to comply with the measures in the Bill; namely, ordinary businesses and disabled people themselves. I believe that the definition achieves those aims. It covers both physical and mental impairments. The Committee will be aware that that includes sensory impairments, indeed all impairments other than those mental illnesses which are not clinically well recognised. We shall come to that issue later this afternoon.
We wish to cover people who would commonly be understood to be disabled. The noble Baroness, Lady Masham, asked me who would make those decisions. In my view most of those cases would be self-evident. However, if it comes to an argument, it will have to be argued before a tribunal, if it is an employment point, as to whether the disablement exists and whether it comes within the definitions in the Bill. We have defined a disabled person as someone who has a physical or mental impairment which has a long-term and substantial adverse effect on normal day-to-day activities. We think that such a person would generally be taken to be disabled. That is what we have sought to do in the Bill.
In the debate in both Houses we have sought to keep the definition of disability and disabled persons as close as possible to that common sense view which links disability to having a condition with substantial and long-term effects on normal day-to-day activities. We believe that if the Bill is to be effectiveI am sure that we all want thatit has to be as unambiguous as possible. It must define "disabled" people in such a way that most people, both disabled and others, can understand and accept that definition.
We shall come to the issue later but it is worth saying this now. We have accepted that people with a history of disability should be brought within the coverage of the Bill. I have amendments to which I shall turn shortly which will do just that. We have accepted that it is undesirable for someone who has recovered wholly, or even in large part, from a disability and still faces discrimination, to be in the position of losing the coverage of the Bill unless he claims that his disability is still present. That situation can apply in particular to people with mental illness, but there will be other examples. Such a situation is undesirable because it could cause difficulties for courts and tribunals, for the employer and for the disabled person himself, in judging the point at which a person was sufficiently recovered no longer to count as disabled. The situation is also undesirable not least because it may add to that person's difficulties in putting his disability behind him.
However, I cannot accept that we ought to give similar weight to the argument to extend the coverage that we shall give to people who are perceived to have a disability, or to those with disabilities whose effects are perceived to be substantial and long term. Perception is necessarily the response of an individual person to whatever matter triggered that perception. My perception of someone may well be related to the fact that he looks like someone with whom I have had either good or bad experiences in the past. That is perception. As some of my noble friends have asked this afternoon, how can one base important legal issues of the kind mentioned in this Bill on what are shifting sands?
The amendment states "is perceived to have" a disability. My noble friend Lady O'Cathain asked the question: perceived by whom? The noble Baroness, Lady Hollis, gave the answer, "by the employer". I do not believe that that is clear from the amendments. If Members of the Committee read the clause with the amendments, the position is not in the least clear, quite the contrary. It could be perceived by the employer or the service provider. What happens if that person says, "I have no such perception"? Is that an end of the matter, or does one have to look into the minds of people? Are we to have some kind of thought police on this issue of perception? I really do not believe that the amendment is the right way to proceed. I believe that it could potentially hinder the very people we seek to help.
In her speech, the noble Baroness addressed us in her usual style, which I admire greatly. I have to say that my perception of the noble Baroness is perhaps slightly different from her perception of herself. I shall not be drawn into saying what I think her perception is of herself or what is my perception of myself. However, in her usual well-argued way, in attempting to tempt my noble friends
The noble Baroness, Lady Hollis, sought to suggest that we were somehow differentiating. If I remember her words aright, she said that we assume that people with the most substantial disability face the most discrimination; those with less disability face less discrimination; and that those with little disability face little discrimination. If one reads the Bill, that argument does not arise. Anyone who meets the definition in the Bill is equally protected by the Bill. Whatever his degree of disability, if it comes within the meaning of the Bill, then the protection given by the Bill is equal, wherever it comes in the gradation which the noble Baroness attempted to persuade Members of the Committee was the way in which the Government considered the issue. That is not true.
Baroness Hollis of Heigham: The Minister is absolutely right, but does he accept that anyone not coming within the definition of disability is therefore not protected? That is the point we sought to establish.
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