Equality Bill

I thank the Minister for her constructive response and her willingness to provide and publish any evidence and so forth that she and her team have been gathering. I am sure that that will go a long way to reassuring organisations such as the Terrence Higgins Trust and Rethink. The latter""expressed its disappointment…following the government's decision not to introduce a clause in the Equality Bill to stop employers asking job applicants about their medical history before deciding whether to invite them for interview."" It sounds as though those are merely technical differences. I think we are agreed on the principle, which is worth restating briefly for the record. The principle is this: there is a large body of evidence that shows that if employers ask for details of health background before interview or before a job application decision is made, there is more opportunity—let me put it no more strongly than that—for discrimination of various kinds, including, most severely, direct discrimination. If we delay that process and say that employers may ask for details of health background only after they have decided to offer someone the job—at that point, the question becomes, "What special and reasonable adjustments may be required by someone who has a disability to allow them to do the job that they have been offered?"—the chance of disability-related discrimination is significantly reduced. Having made those points, we welcome the Government's intention and look forward to them publishing the technical background to their work on the matter. We want to keep our powder dry as to whether that means debating the matter again at some later stage, but all being well, we are at least making steady progress in the right direction, and we salute the Government's approach. I also wish to speak to two other groups of Conservative proposals which are in my name and that of my hon. Friend the Member for Forest of Dean—one is on positive action and the other on gender pay reporting. Our proposal on positive action seems rather technical and seeks to draw a distinction between someone who is "equally qualified" as opposed to someone who is "as qualified". That is a very small word difference, but it is profound in terms of the thinking behind it and the implications that it might have. The whole point of positive action—and I think that this is widely agreed on both sides of the House—is that it is an important aid to people who would otherwise find it difficult to apply successfully for jobs and positions in all sorts of different professions and sectors of the economy, but which, importantly, stops short of positive discrimination. There is a world of difference between the two and it is an important distinction to make. Positive action, to summarise it in layman's terms, involves providing as much assistance as reasonably possible—holding someone's hand in as many different ways as possible—in all the steps that lead up to and during the interview process for a new position. It deliberately stops short of allowing the employer making the job offer to select someone who is less well qualified simply because they have the protected characteristics in the Bill. In other words, it allows helping someone to prepare and to put themselves across in the best possible way when applying for a job, but the eventual decision on who gets that job must be purely meritocratic and based on the principle of appointing the person best qualified for the job. In Committee, there was a debate about that principle. At the start of the process, it appeared that that principle—and the distinction between positive action and positive discrimination—had been bulwarked and preserved by the use of the words "equally qualified". If two people are equally qualified for a job—what we might call a "tiebreak situation"—an employer may choose someone with a protected characteristic, say from a particular racial group or of a particular sexual orientation, in preference to someone who has not such a characteristic. The important point is that the two candidates are equally qualified. That would not, of course, breach the crucial distinction between positive action and positive discrimination. However, in Committee, we had a concerned and detailed debate about the Government's rephrasing of that provision, so that instead of being "equally qualified", it reads "as qualified". That is important because we are worried that "as qualified" might mean that of two candidates who are both adequately qualified—they both clear a minimum threshold as defined by the employer as required for the job in question—the candidate who is best qualified and well above the minimum threshold, but does not have any of the protected characteristics, may not get the job because the employer would be within their rights to give it to someone who is less well qualified but had cleared the hurdle and possessed a protected characteristic. That would breach the important distinction between positive action—giving people a hand in their preparation—and positive discrimination, which is allowing the decision on who is offered a job to be made on any grounds other than merit. We are not the only people to be worried about the distinction. The Equality and Human Rights Commission, in its supporting documentation, has also expressed concern. In its Equality Bill report stage briefing, issued on 2 November, it said:""Positive action would allow employers choosing between two equally qualified candidates to select the successful candidate on the grounds that they are from an under-represented or disadvantaged group."" I am interested to note that the EHRC is supporting the principle of "equally qualified" and using that phrase in its briefing document, rather than "as qualified", although I am sure that it is not the only organisation that supports the principle of "equally qualified" and that that support is shared on both sides of the House. The Equality and Diversity Forum, in its briefing on the Report stage of the Bill, says:""The proposed provision does not permit recruitment or promotion only because a person has a protected characteristic, it only applies to candidates who are equally qualified and in a situation where a group is under-represented."" In other words, there is great consensus on the principle of "equally qualified" and applying the clause in a tiebreak situation, but I do not think that there is a consensus on the notion of allowing a candidate who is adequately qualified, but less well qualified than another candidate, to be preferred simply because they are from a minority group. That is our concern.