Equality Bill

My Lords, it causes me personal pain ever to disagree with the noble Baroness, Lady Howe of Idlicote, as she knows. She and I have been working together in this area for more decades than we probably want to admit. However, I have to disagree here. The starting point is to secure a fair balance between the right of alleged victims and the right of those who are alleged to have discriminated against or harassed them. There is a need for law which is capable of being understood not by ordinary men and women—that would be too much—but at least by the employment tribunals that have to deal with these matters and by specialists in this area. When I began to look at the Bill, like the noble Baronesses, Lady Warsi and Lady Howe, I was tempted to push the Government to go further. However, Ministers allowed me to have a lengthy meeting with members of the Bill team, who convinced me, after detailed arguments, that I was wrong. It is always very desirable to recognise that that is likely to be the case. At the moment, there is nothing to stop a woman or a man bringing a case on several different grounds of alleged discrimination or harassment, and nothing in the Bill will make that more difficult. Therefore if, for example, a woman wishes to say that she has been discriminated against because she is a woman or because she is black, there is nothing to stop her doing that. The Bill makes it easier for a person in that situation to say, "Well, I’m not sure whether it was because I was a woman or because I was black, or to what extent it was a bit of both, so I am putting in a combined grounds claim in that area". I hope that what I have said is intelligible—it is to me, at any rate—and workable. It means that the tribunal will look at the reasons for the less favourable treatment to see whether it is "because of", to use that admirable phrase, gender or race or a bit of both. Regardless of whether it is one, the other or a bit of both, it will be unlawful. The argument is that if that can be done on two grounds, why cannot it be done on three or four grounds? I think the answer is that it would be excessively burdensome for employers and it would complicate litigation in employment tribunals. If two grounds are not enough, there is nothing to stop you adding others, as is the case at the moment. Therefore, I became convinced that pushing the matter further would be counterproductive. Leaving that to one side, the next question is: what about harassment? Again, I do not think that there is a need for combined grounds in relation to harassment, which is a different concept. The question is whether the alleged conduct, on one or more grounds, essentially involves bullying, insulting people’s dignity and so on. The next question is: can one not go further in relation to indirect indiscrimination? Like the noble Baroness, Lady Howe, I am totally wedded to the idea that discrimination is not just about less favourable treatment but about equal treatment with unequal impact. The problem is that most people do not understand what indirect discrimination means in the first place. It is a difficult concept, as we have discovered. If you have lots of different grounds which you can combine in a single indirect discrimination case, it will become completely unmanageable. First, you have to define which group, of which the claimant is a member, is suffering an adverse disparate impact. If the group is, say, women, black people or the disabled, that must be intelligible. Then you measure whether there is disparate impact or not. Then you measure whether there is a lack of objective justification for having an equal rule with an unequal effect—something of that kind. But if you start adding more than one category to indirect discrimination, you have to start looking at the statistics, not just for the one ground, but for more than one ground, and the thing becomes unworkable. There is nothing to stop somebody, if they have that kind of lawyer, having multiple grounds on indirect discrimination as it is. Those Ministers who took the step of having combined discrimination, dual characteristics, in Clause 14 did really well to persuade the business Ministers to allow that to happen, given that the CBI and other employers’ organisations do not want any of this. I conclude on a pathetically pragmatic political note, which is that I do not think we could get any more and we are jolly lucky to have what we have now. I would stick by that.