Lord Henley: My Lords, I think that I am right in saying that if it is the principal who is covered and he employed fewer than 20 staff, he would be exempt. As I said, there is a grey area where the question of whether it is the principal or the employment business who is the employer is unclear. We want to deal with that in regulations. However, it would be the size of the one covered at the time that would be the size that was relevant, not the other oneif the noble Lord follows me. If I am wrong on that, I shall write to the noble Lord.
Lord Carter: My Lords, with the leave of the House, does that mean that if the contractor employed more than 20, he could not discriminate, but the principal who employed fewer than 20 would be able to discriminate even though the employer of the contract worker was not allowed to do so?
Lord Henley: My Lords, it is exceedingly unlikely that the employment business which has any degree of success will employ fewer than 20 people. It is likely to employ more. It depends who he is covered by at that given time. If he is covered by the principal and the principal has fewer than 20 staff, he is not covered; but if he is covered by the employment business with fewer than 20, he is not covered and vice versa.
Lord Swinfen: My Lords, I should like briefly to welcome the amendment. I believe that between now and Third Reading my noble friend should look again at the point that has just been raised by the noble Lord, Lord Carter. In the part of the country where I live, quite large farms employ only one or two people, but when it comes to harvesting their brassicas, potatoes or whatever, they bring in gangs of labourers under contract from a specialist hiring firm which could well employ more than 20 people. I feel that this point should be cleared up, at Third Reading if necessary.
Baroness Hollis of Heigham: My Lords, perhaps I may give the Minister an example. A local authority may have been required, through contract compliance, to put out its cleaning work to small companies. The local authority will employ more than 20 people, but the company that has won the tender will probably employ fewer than 20 people. Equally, one could perfectly well have a small business employing fewer than 20 people which employs a cleaning firm which employs more than 20 people. That is now a common circumstance.
Lord Henley: My Lords, I hope that I have made the position clear. It depends very much on who covers the individual at the given time and whether they are covered by the exemption for 20
Baroness Hollis of Heigham: My Lords, what does the Minister mean by that?
Lord Henley: My Lords, as I have pointed out, the principal will be treated as if he was the employer in most cases. If the principal employs more than 20, they are covered. If he employs fewer than 20 people, they are not covered. If they are covered by the employment
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business and the employment business has fewer than 20 employees, there is no protection. If it has more than 20 employees, there is protection. It is as simple as that.
Baroness Hollis of Heigham: My Lords, this is a rather important point, particularly for local authorities which are now required to subject large swathes of local authority business to compulsory competitive tendering. Many of those contracts will be won by small companies. Is he saying that because the local authority is the principal and will almost invariably employ more than 20 people, all of the companies that go in for compulsory competitive tendering must conform, whatever their size, to the requirements of the legislation? Because that will be a form of contract compliance that we would welcome.
Lord Henley: My Lords, perhaps I may remind the House that we are on Report. I am intervening for the last time to make the point clear. In that case, the individual is protected while he is working for the local authority because the local authority is the principal. That does not mean that small firms feeding in will suddenly find themselves bound by that. I was not saying that. I was saying that the individual who is offered protection is offered protection depending upon whom he is covered by at the given moment, whether it is the principal or the employment business.
Lord Swinfen: My Lords, before my noble friend sits down
Lord Lucas: My Lords, we are on Report. We must bring this Committee-style conversation to an end. I am sure that if there are any problems remaining my noble friend will be able to write to my noble friend.
On Question, amendment agreed to.
Lord Henley moved Amendment No. 51:
Discrimination by trade organisations
After Clause 12, insert the following new clause:
(".(1) It is unlawful for a trade organisation to discriminate against a disabled person
(a) in the terms on which it is prepared to admit him to membership of the organisation; or
(b) by refusing to accept, or deliberately not accepting, his application for membership.
(2) It is unlawful for a trade organisation, in the case of a disabled person who is a member of the organisation, to discriminate against him
(a) in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them;
(b) by depriving him of membership, or varying the terms on which he is a member; or
(c) by subjecting him to any other detriment.
(3) 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.
(4) In this section "trade organisation" means an organisation of workers, an organisation of employers or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.").
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 52, 53, 98, 99 and 179.
Amendment No. 51 means that trade unions, employers' associations and analogous bodies would be covered by this Bill in their relationship with their
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members or prospective members who are disabled or who have had a disability. Such organisations are already covered in the Bill to the extent that they are employers. However, they are not covered by the access to services right because they are not providing services to members of the general publicjust to their members. The inclusion of trade unions, employers' organisations and analogous bodies follows directly from the matter being raised in Committee in the Commons when my honourable friend the Minister of State gave an undertaking that the Government would consider the matter further. I am pleased that that consideration by my honourable friend has resulted in the amendments on which I can now seek the approval of the House.
I can see no reason not to apply the provisions of the Bill to those bodies. And discussions between officials in my department and those from the TUC and CBI indicated a favourable response to the proposals.
Amendment No. 51 would cover trade unions, employers' organisations and analogous bodies in a similar way to the coverage of such organisations in the Race Relations Act. That amendment would make it unlawful for a trade organisation to discriminate against disabled people in relation to the terms on which it admits disabled people to membership or by refusing to accept, or deliberately not accepting, the application of a disabled person for membership. The amendment also makes it unlawful for trade organisations to discriminate against a disabled person who is a member in the way they afford him access to benefits, by depriving him of membership, or varying the terms on which he is a member or by subjecting him to any other detriment. Finally, it also covers non-disabled people should they be victimised as a result of, for example, helping a disabled member enforce his rights under this Bill.
Amendment No. 52 sets out the meaning of discrimination in this context and also provides for grounds for justifying less favourable treatment of disabled people as applicants for membership and as members. Amendment No. 53 places a duty on trade organisations to make reasonable adjustment. Amendments Nos. 52 and 53 are based on an amendment which we discussed earlier in some detail. It is clear that there needs to be a duty of reasonable adjustment; for example, to ensure that, where it is reasonable, visually impaired members could get union literature in braille and members with hearing impairments could have signers at meetings. And there will be circumstances where less favourable treatment of a disabled person would be justified. For example, in the case of a trade union delegation to inaccessible premises not controlled by the union it might be necessary to leave out a wheelchair user or it may be the case that a disabled person would be excluded from an employer organisation for a particular trade if that person does not work in that trade and is not qualified to do so.
Amendments Nos. 98 and 99 are consequential amendments proposed to Clause 37 (Code of Practice), stemming from the inclusion of contract workers and trade organisations, so that the code of practice on
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employment can include practical guidance to eliminate discrimination against contract workers and by trade organisations.
Amendment No. 179 is a consequential amendment which clarifies the meaning of trade organisations for the purpose of the Bill.
Perhaps I may make a further point in order to flag it up for Third Reading. We may wish to return on Third Reading to clarify the position of the bodies which issue qualifications. Such bodies are excluded if they are in the education sector, as defined by Clause 13(5), but they may otherwise be covered by Part III of the Bill if they are deemed to provide services to the public. We are considering what the consequences might be and whether we should rely on the Bill's regulation-making powers to detail what is or is not reasonable for such bodies to have to comply with Part III. If we are not satisfied that that is the right approach we may return to the House on Third Reading with further amendments setting out on the face of the Bill how qualifying bodies are affected.
I hope that that description of the amendments is useful. I beg to move.
Lord McCarthy: My Lords, we welcome this series of amendments. I wish to ask three questions in order to gain some enlightenment. I cannot find a clear definition on the face of the Bill or in the amendments of a trade organisation. I may be wrong and the Minister may point it out to me. Amendment No. 179 indicates that I can find the definition somewhere else, but I cannot find the definition itself. It is a term of art and it is a new term to me. We are not talking only about trade unions. Are professional associations, employers' associations, institutesfor example, the Institute of Personnel Managementtrade associations, pressure groups and single interest groups trade organisations covered by the Bill? There may be a simple answer to that question. It may be that the Government tabled the amendment late, that I got up rather late and that I have not found the definition in the Bill. Perhaps the Minister will enlighten me.
The Minister must be aware of my second point because he said that the Government had had discussions with the TUC. It is a TUC point. The TUC would not oppose the amendment but would like to have clarification from the Government, which it has not yet received. First, where a non-disabled person would not be eligible for membership of a union, under this clause a similarly disabled person will also not be eligible for membership. Of course, as the noble Lord will know, many unions in their rule books limit eligibility. Nurses cannot join the National Union of Mineworkers, for instance. It is understood that if the amendment is passed that position will not change. But the TUC would like to have the matter clarified.
The second point is more complicated but I understand that the Government have been informed of it. It is feared that the amendment might render unions liable for any failure to make adjustments by an informal group of union members of whose existence the union's officers are unaware. I refer to groups of
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union members not recognising union rule books and with whom the national union does not communicate and who are given no powers or resources. They may emerge in workplaces where the union is not recognised. Does the amendment mean that the union has some degree of responsibility over such people, including entry into the union?
I have outlined two concerns and a point of information. I look forward to hearing what the Minister has to say.