Lord McCarthy: My Lords, we have probably got the Government to go as far as we are going to get them to go. I thank the noble Lord for what he said. We certainly do not accept the arguments which he has put several times this evening, as has his noble friend, that small firms can be excluded because not all the burdens are financial. There are other burdens. We do not accept that these are burdens which disproportionately fall on small firms. As I understand what the noble Lord is saying, they are the burden of coming to terms with the Bill.
A small firm should find it easier to come to terms with the Bill because a small employer with a few employees should have a better knowledge of his employees than is the case in a large firm. Indeed, that employer should be closely involved in questions of recruitment and promotion. He should know that information without having a heavy personnel function in order to bring such matters to his attention. Therefore, I do not believe that such things fall disproportionately on small firms.
The Minister also pointed out that there is the access-to-work scheme. Of course, that is so. If that scheme were generous enough, if the Government were to say to us this evening that they have absolutely no intention of introducing an employers' contribution in the foreseeable future, and if they were to say that they would like to see the access-to-work scheme particularly used for those disabled persons in small firms who are not covered by legal regulation, they would be going far further than they are at present. But of course the Government will not say that. Indeed, what the Minister said about the access-to-work scheme seems to be worrying my noble friends sitting behind me. I can understand why because what he said about the scheme is that the Government cannot be sure what they will do with it in the future. That is why we will have to take the matter away, consider it and decide whether we can come back with another version, or a modified version of it, on Third Reading.
Finally, the central idea behind the amendment is that you should do something to compensate for the fact that you are excluding a group of workers from the protection in the Bill. We want something done, yes, not to replace the fact that the Government will not let the figure go below 20indeed, that cannot be replaced because it is legal regulationbut in order to demonstrate that the Government are particularly concerned about all disabled people and their employment opportunities. If they are not prepared to regulate, perhaps they will be prepared to give some financial assistance. Nevertheless, as I said, we have gone as far as we can tonight. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Lord Henley moved Amendment No. 50:
Discrimination against contract workers
After Clause 12, insert the following new clause:
(".(1) It is unlawful for a principal, in relation to contract work, to discriminate against a disabled person
(a) in the terms on which he allows him to do that work;
(b) by not allowing him to do it or continue to do it;
(c) in the way he affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or
(d) by subjecting him to any other detriment.
(2) Subsection (1) does not apply to benefits of any description if the principal is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the contract worker in question, unless that provision differs in a material respect from the provision of the benefits by the principal to contract workers.
(3) The provisions of this Part (other than subsections (1) to (3) of section 4) apply to any principal, in relation to contract work, as if he were, or would be, the employer of the contract worker and as if any contract worker supplied to do work for him were an employee of his.
(4) In the case of an act which constitutes discrimination by virtue of section 39, this section also applies to discrimination against a person who is not disabled.
(5) This section applies only in relation to contract work done at an establishment in Great Britain (the provisions of section 60 about the meaning of "employment at an establishment in Great Britain" applying for the purposes of this subsection with the appropriate modifications).
(6) In this section
"principal" means a person ("A") who makes work available for doing by individuals who are employed by another person who supplies them under a contract made with A;
"contract work" means work so made available; and
"contract worker" means any individual who is supplied to the principal under such a contract.").
The noble Lord said: My Lords, an "employment business"to use the terminology of the Employment Agencies Act 1973is a business which supplies people in the employment of the person carrying out the business, to act for, and under the control of, other people in any capacity. Disabled people working under employment business arrangements, are protected by the Bill in their role as employees of the employment business. However, there is no protection for disabled people working under employment business arrangements if a hirer either refuses to hire the disabled person or discriminates against the disabled person once he has begun working for the hirer. There is a further issue which relates to the duty to make a reasonable adjustment. There is currently no duty on the hirer to make even the most insignificant adjustment or co-operate with any adjustment made by the employment business.
That would mean that, in its present form, the Bill would not affect the actions of the hirer. A hirer could lawfully turn away a disabled person working under employment business arrangements purely on the grounds of prejudice. He could refuse to allow a braille keyboard to be plugged into his computer system even if the employment business or the individual himself provided it. I am not suggesting that such extreme examples are likely, but they illustrate that this is a potentially wide loophole in the Bill's provisions as they
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stand. It could narrow the range of jobs to which the employment business could send the worker and may lead to the employment business being unable to continue employing that person. It could also lead to tribunal complaints being brought against employment businesses for matters which were not their fault and which, although they might succeed, could cause difficulties.
To avoid that kind of situation arising, the proposed new clause would place hirers under a duty of non-discrimination similar to the corresponding duty set out in the Sex Discrimination Act and the Race Relations Act. It would be unlawful for a principal, in relation to contract workin other words, the person doing the hiringto discriminate against a disabled person in any of the following ways: the terms on which he allows him to do that work; by not allowing him to do it or continue to do it; in the way that he affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or by subjecting him to any other detriment.
Subsection (3) applies the provisions of Part II to any principal in relation to contract work as if he were, or would be, the employer of the contract worker. The effect of that would be to incorporate the same definition of discrimination as applies for employersincluding the need to justify less favourable treatmentand to place a duty on the principal for reasonable adjustment. This duty would include the hirer co-operating as far as was reasonable with adjustments made by the employment business. Clearly what would be reasonable in the case of the hirer would depend on the hirer's circumstances and this would necessarily take account of the often much more limited relationship between the hirer and worker. For example, there might be very few types of adjustment a principal could reasonably be required to make for people hired for only a couple of weeks or for people whom the employer needed at very short notice. We recognise, however, that there is potential overlap where the duty of reasonable adjustment is imposed on both the principal and the employment business for the same person. We intend to use the regulations under Clause 7(7) to provide in detail for the allocation of such a duty between the two organisations.
Subsection (4) makes victimisation unlawful in this context, even where the contract worker is a non-disabled person. It would mean that non-disabled people involved in, for example, proceedings acting as witnesses would be covered by the provision. Subsection (5) provides that the new clause applies only in respect of contract work at an establishment in Great Britain and that this is to have the same meaning as it has for the employment provisions. Subsection (6) sets out the meaning of "principal", "contract work" and "contract worker".
I believe that the amendment closes a potential loophole in these provisions of the Bill and I commend it to the House. I beg to move.
Lord Carter: My Lords, it would be helpful if the Minister could clarify the situation if the principal employs fewer than 20 people and the contractor employs more than 20 people and vice versaif the
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contractor employs fewer than 20 people and the principal employs more than 20 people. How is all that caught by the 20-employee limit?