Equality Bill

I will also speak to the various amendments in the group in my name—Amendments 56A and 56B, Amendments 61 to 63, and Amendments 106ZA and 106ZB. They have been grouped together and this is a complicated and difficult subject. To speed the passage of the Bill, I will deal with it briefly—I hope—and in a way that enables the Minister to go on the record with a full explanation of these matters. I preface that with something on harassment as defined in Clause 26. I have already made the point but will make it a bit clearer. During the passage of the Equality Act, when the noble Baroness, Lady Ashton of Upholland, had responsibility for it, we had a problem in extending the definition of harassment as it is now in Clause 26 to goods and services, and in particular to housing and education. The problem was in a sense that raised by the right reverend Prelate about free speech and the interaction between religion and sexuality, for example, and one religion and another. The basic problem, taking it stage by stage, was when the Government implemented the EU equality regulations. These would have allowed the Government in Clause 26(1)(b)(i) to put in the word "and"—that is, to have made the wrong of harassment only where you both violate a person’s dignity and create, ""an intimidating, hostile, degrading, humiliating or offensive environment"," for the alleged victim. However, the Government instead put in the word "or" to make it stronger than EU law strictly required. Having done that, it is part of what is already there. Some would say that what I am now going to say would represent regression. The problem in the Equality Act is that there is no filter to prevent an individual bringing proceedings in an employment tribunal or county court for harassment. There is no body there like the commission to say, "That is ridiculous". Somebody can bring a claim in employment or beyond saying that their dignity has been violated and that is enough. It was evident to the Government at the time that this created real problems for religion and sexuality, the churches and free speech. One example in our minds was, say, a Christian landlord who wanted Jews to convert and who had a poster in the hall that said "Belong to the Jews for Jesus" organisation, which would offend the Jewish tenant. The Jewish tenant could bring a claim for violating dignity. There were various other examples of that kind, where thin-skinned people whose dignity was being violated could bring a claim. The Government wisely decided to take out the notion of harassment as far as it affected religion or sexual orientation beyond employment for another day. I hope I am accurately summarising the history. It is still unfortunate that we are wedded to "or" instead of "and" because I worry that frivolous or crazy claims could be brought under harassment. Even if they fail—as they probably would—they would bring the law into disrepute. I am keen to discourage stupid cases because the bringing of the case is almost as bad as the winning or losing of it. I wish one could replace "or" with "and". It would be more reasonable if the claimant had to show both that dignity was violated and that it created an offence of such-and-such an environment. It would certainly not be inconsistent with EU employment equality law. That is all tedious background but it is important to understand. I will try to summarise my own amendments in this group as clearly as I can—not, as I said, to argue the points but simply to give the Minister the chance to go on the record to give me reassurance on whether there is any gap in the law. I can then reflect on that before we come back on Report. Amendment 56A seeks to outlaw harassment on the basis of sexual orientation in schools, as well as in services and public functions. If bullying pupils because of their sexual orientation constitutes harassment, it is very important that that should be covered. Harassing a child because they are gay is obviously one of the most serious forms of harassment. It is the classic example. Amendment 56B seeks to outlaw harassment in schools on the basis of what the Bill calls "gender reassignment", although we would prefer "gender identity". Harassing a pupil because of their gender identity or because they are "trans" or in the process of gender reassignment is, again, surely unacceptable. At present, the Bill contains no protection against harassment relating to sexual orientation outside the workplace and in schools, and no protection against harassment relating to gender reassignment in schools. Therefore, these amendments seek to bring in protection for schoolchildren and public service users against harassment on the basis of sexual orientation and school pupils on the basis of gender reassignment. Because of potential freedom of speech concerns, both the proposed new clauses in my amendments use the conjunctive definition—"and"—so that you have to show not only the violation of dignity but also an, ""intimidating, hostile, degrading, humiliating or offensive environment"." Amendments 61 to 63 seek to amend Clause 40 on a different matter—that is, third-party harassment. As it stands, the clause makes an employer liable for failing to take steps to prevent harassment by third parties against employees—for example, where someone is sent by an employment agency. However, subsection (3) says that this applies only where the employer, A, knows that the same employee, B, has been harassed on two prior occasions. That means that where a client of A—say, an employer who is an employment agency’s client—harasses a number of A’s employees on numerous occasions, so long as the same employee has not been harassed twice, A is not liable for failing to take preventive measures to stop the harassing behaviour. Therefore, these amendments broaden the protection covering third-party harassment of employees by ensuring that an employer cannot avoid liability by exposing a different employee to third-party harassment on the same grounds. They also ensure that third-party harassment extends to a person who has applied for employment. Obviously we need to listen very carefully to what the Government say on Amendment 106 in the name of the noble Lord, Lord Ouseley. I am not sure that he has spoken to it yet; if he has I apologise. Amendments 106ZA and 106ZB would make it unlawful for the responsible bodies of schools to harass pupils on the basis of sexual orientation or gender reassignment. Clause 85(10) currently allows the responsible body of a school to harass current or potential pupils on the grounds of sexual orientation, as well as gender reassignment and religion or belief. There is evidence that harassment on these grounds within schools is a serious problem. Therefore, deleting Clause 85(10)(a) and (c) would remove sexual orientation and gender reassignment as exemptions. The amendments would mean that teachers and school bodies could not harass students because of their sexual orientation. I am sorry to have gone through all that in so much detail, and I am perfectly sure that it will make sense only when we have heard the Minister reply in full, but I hope that that is a convenient and fairly speedy way of dealing with the issue.