Equality Bill

Amendments 34, 42 and 56 relate to Clause 14, which provides protection from what we call dual discrimination and enables someone to bring a claim of direct discrimination because of the combination of two relevant characteristics. I am grateful for the support for this clause from all around the Committee. The law as it stands requires that people must separate the different characteristics and bring separate claims, which means that it can be hard for those who experience this kind of discrimination to secure a remedy. For example, a black woman discriminated against when she is passed over for promotion who has to bring separate claims for race discrimination and sex discrimination may not succeed in either claim if her employer can show that black men and white women are not treated in the same, less favourable manner. The clause provides proportionate and effective remedies for this gap in the law, based on careful consideration of the evidence available through consultation and discussions with all interested parties. I have shared with interested Peers a factsheet on dual discrimination, produced by the Government Equalities Office, which explains this clause in some detail, and I will today place a copy with the Library of the House. The noble Baroness, Lady Warsi, spoke quite properly of the impact on business. Our discussions with business and other organisations made the clear point that good guidance, issued early, will help businesses to ensure that they do not over-comply, as it were. The EHRC has today issued its first draft of the codes of practice, which includes combined discrimination and is available on its website. We understand that the commission will publish its draft guidance for consultation on 25 January, and I will ensure that it is circulated to all noble Lords participating in this debate. Amendments 42 and 56 concern intersectional discrimination and harassment respectively. Before I address the proposed new clauses in the amendments, I should say to the right reverend Prelate that I have heard his concerns, which will be dealt with in a later debate. On the harassment protection in the Bill, the question was whether the Bill could prevent Christians or people of other religions expressing their faiths at work. I should make it clear that the test for harassment has an objective element; the test is whether it is reasonable for the treatment to have the effect complained of. I hear the concerns expressed by the right reverend Prelate and I have sympathy with what he says, but we will come to that later on. When debating this clause in the other place, my honourable friend the Solicitor-General made it clear that this provision was being introduced, following careful consideration of the evidence, to ensure that there was a proportionate response to a gap in the law. There is general agreement that there is a gap in the law in respect of direct discrimination, and the evidence shows that extending protection to direct discrimination addresses the vast majority of intersectional discrimination cases. For businesses and organisations that are complying with existing discrimination law, this new provision will not require them to do anything more. We have not, however, been persuaded that the same provision should be made for indirect discrimination or harassment. There is simply no indication that the existing law is failing to provide the necessary protection. Although we are very grateful to the citizens advice bureaux for their assistance in this matter, the scenarios that they raise—the noble Baroness, Lady Howe of Idlicote, referred to these—do not suggest otherwise, and to extend the provision to these areas would place a significant additional burden on businesses. Amendment 42 would extend the law by introducing indirect dual discrimination. This would mean that all businesses and organisations would need actively to consider the impact of their provisions, criteria and practices on all 21 combinations of characteristics. In addition, the amendment would include marriage and civil partnership, a protected characteristic where there is no evidence that the existing protection is inadequate. This would mean that the coverage of indirect and direct dual discrimination would differ and would increase to 28 the number of possible combinations upon which employers and businesses would have to assess the effect of their policies and practices. The result would be contrary to the goals of simplification and harmonisation and would impose a disproportionate burden, given that there is no evidence of need. Amendment 56 seeks to include protection from intersectional harassment in the Bill. As with indirect discrimination, there is no evidence that a remedy is lacking and therefore no basis to extend the law to include a provision for intersectional harassment. Unlike the prohibition of direct discrimination, the prohibition of harassment is not expressly comparative, and conduct involving a combination of protected characteristics is more likely to satisfy the standard of being "related to" each characteristic, even when considered separately. Moreover, because the associative definition of harassment used in the Bill eliminates any element of causation, harassment is not susceptible to the same problems of proof as direct discrimination. As with indirect discrimination, there is simply no problem necessitating further legislation. Finally, the harassment provision that is proposed permits unlimited combinations of protected characteristics and therefore also goes significantly further than the approach adopted in Clause 14, imposing costly burdens and resulting in confusing discrepancies, again contrary to the Bill’s aim of simplification and harmonisation. I recognise that indirect discrimination and harassment could occur on an intersectional basis, as some noble Lords have said, but there is no equivalent gap in the law, no evidence of a problem in practice and therefore no justification for new legislation. Based on consideration of the evidence available, Clause 14 is a proportionate response to a specific gap in the law, providing the necessary remedy without placing an undue burden on businesses and organisations. If there is any uncertainty as to the type of conduct or protected characteristics involved, nothing in the Bill would stop someone bringing more than one claim—as the noble Lord, Lord Lester, said—as is currently the case. However, extending the law further to include indirect discrimination and harassment would result in an unnecessary and disproportionate increase in the cost and complexity of the law. Amendment 34 seeks to remove Clause 14(6), which empowers Ministers to specify further what a claimant does or does not need to show to prove dual discrimination, or to prescribe additional circumstances where this clause would not apply. It is necessary to include this power because dual discrimination is a new and untested provision. It is therefore prudent to provide flexibility to ensure that it is effective and to accommodate future changes in procedure. For example, Ministers might use the power if, in practice, it is thought necessary or appropriate to require claimants to adduce evidence relating to each protected characteristic in the combination, or if exclusive jurisdiction regimes were created for other types of discrimination in addition to that which is excluded by subsection (5). As the exercise of this power results in amending the Bill itself, any use of it is subject, under Clause 197(2), to the affirmative procedure. Prohibiting dual discrimination is a forward-thinking step on which we can all agree, and it preserves our place as a world leader in the fight against discrimination. The noble Lord, Lord Low, asked me a specific question relating to disability. However you satisfy the definition of disability, it will only ever constitute a single protected characteristic for purposes of dual discrimination. I hope that that is clear. I ask the noble Baroness to withdraw the amendment.