Equality Bill

My Lords, I shall speak to Amendments 42 and 46 in my name and that of my noble friend Lord Ouseley. I support the Government’s provision to address combined direct discrimination—a provision which, as I understand it, was introduced towards the end of the Committee stage in the other place. As the Solicitor-General noted during the Bill’s Report stage, the provision enjoys cross-party—indeed, non-party—support and, as many colleagues will know, introduces protection against direct discrimination relating to any two protected characteristics. Substantial evidence of the need for such a provision has been gathered by organisations such as Citizens Advice, the Equality and Diversity Forum and the Discrimination Law Association. There is also as strong support from this House, as stated in several contributions at Second Reading. I echo the point made by my noble friend Lord Adebowale at Second Reading that the combined discrimination provision is important in order to recognise and accept the many facets of an individual’s identity. The current proposal offers protection to, for example, older disabled employees experiencing increased and unfair scrutiny of their capabilities or being singled out for redundancy, or to black men being subjected to specific stereotypes of prejudices relating, for example, to sexual prowess or aggression—again resulting in discrimination. However, unlike the noble Baroness, Lady Warsi, I would argue that the provision as it stands does not go far enough. I should say that my briefing is very much based on evidence from the CAB, which has, as everyone knows, played an enormously important part in advising citizens throughout the UK. If ever there was experience to go on, we would find it there—we may have to question the CAB in more detail later. The provision as it stands does not go far enough. Not including combined indirect discrimination and combined harassment leaves a significant gap in the law—I have always been in favour of including indirect discrimination because it played such an important part in the Sex Discrimination Act, albeit in limited areas. This would also make it harder for some people to seek the justice they deserve and would make the law more complicated. While the Government’s provision would mean that a claimant could in future bring one case with just one claim relating to a combination of two characteristics if they had experienced direct discrimination, this will not apply if they have experienced indirect discrimination or harassment. Instead, they will have to bring any indirect discrimination or harassment as separate claims relating to the single characteristics. This can prove impossible. For example, a Pakistani Muslim client of a citizens advice bureau was harassed by a colleague saying, "I hate you and your people". At tribunal she would have had to prove whether the hated "you and your people" were either Pakistanis or Muslims, which in her case could not be done. As one CAB case worker put it, ""In trying to separate out the grounds to prove the treatment … you dilute both the issues … with the consequence that you may end up presenting two weak cases and losing both"." Consequently, solely on technical grounds, it can be impossible to prove that indirect discrimination or harassment has taken place. This is made worse by the requirement to use comparators under the separate characteristics, which enable an employer to deny indirect discrimination or harassment irrespective of how badly they may have treated their employee. Organisations such as Citizens Advice and the Discrimination Law Association have provided significant evidence to show that this is a real problem in people’s lives and needs to be addressed, not least because many people who experience direct discrimination also experience harassment or indirect discrimination within the ill-treatment they face. For example, on combined indirect discrimination as in Amendment 42, Citizens Advice evidence indicates that not being able to bring a combined indirect discrimination claim may be a particular issue for women. In one case, a CAB client, a disabled woman, requested flexible working due to both her disability and her childcare responsibility. Her employer refused. The less favourable treatment she received was due to a combination of indirect discrimination on the grounds of her sex and direct discrimination on the grounds of her disability. That is also an issue that specifically impacts on migrant women and is linked to gender concentration in certain occupations. For example, Citizens Advice has dealt with a case regarding the discriminatory working conditions women from certain countries face when recruited to the UK to undertake nursing jobs. I emphasis that this is only in specific circumstances, it is not everybody recruited to come over here to undertake nursing. On combined harassment in Amendment 56, Citizens Advice conducted in-depth investigation of 15 cases that meet the Government’s definition of direct discrimination. Some 13 of those—86 per cent—involved incidents of harassment as well as direct discrimination. While a small sample, Citizens Advice is convinced that it is a representative one, with its case workers reporting that many direct discrimination cases begin with or include some form of harassment, in particular verbal abuse and bullying which is often the precursor of less favourable treatment. These amendments will improve protection to reflect the reality of people’s lives and avoid claimants needing to bring complicated multiple claims. It simply does not make sense to consider some acts on a combined basis and to have to separate out others into single characteristics. There is clear evidence of the need to address combined indirect discrimination and combined harassment, and I argue that adopting these two amendments would make it simpler for individuals to bring claims and for employers and advice agencies to ensure that their staff were trained adequately in the law.