Equality Bill

This group of amendments seeks to extend and clarify the protections against harassment in the Bill. I will address all the amendments in the group and speak to government Amendments 138 and 139 at the same time. We are confident that there is no gap in the Bill in the protection against conduct which amounts to harassment. In some areas such as employment there is specific protection, and where this is not the case, a remedy is provided by way of detriment. I hope that these remarks will show that that is the case. In Amendment 51, the noble Lord, Lord Ouseley, seeks to extend the third limb of harassment provisions to all relevant protected characteristics. Currently, the third limb of harassment covers the situation where, for example, a woman is dismissed and believes that the real reason why this has happened is that she refused to sleep with her boss. This protection only applies to sexual harassment and harassment related to sex and gender reassignment. Amendment 51 seeks to extend this protection to all relevant protected characteristics. However, we do not have any evidence that this form of harassment is a problem in the workplace; and where this protection applies now, it is to comply with our European legal obligations. I now turn to a number of amendments which have to do with harassment in schools. I recognise that there has been some concern about the fact that the Bill does not explicitly apply harassment protections on the grounds of sexual orientation and gender reassignment to schools. The fear is that this might leave schools free to harass pupils on these grounds. Amendments 106ZA and 106ZB, tabled by the noble Lord, Lord Lester, would put right this supposed deficit while applying a rather higher test of harassment than exists elsewhere in the Bill, for reasons which he has explained and which I understand. However, we are confident that this is not necessary and I hope I can persuade him that that is the case. The Government are very clear that school children should not be subject to detrimental behaviour because of sexual orientation or gender reassignment and that the Bill should support this policy. We have examined all the examples that have been put to us of behaviour which anyone would understand to be harassment and we are confident that there is not a gap where there is unacceptable treatment of a child by a school. Situations such as a teacher ridiculing a child because of his sexual orientation or a teacher encouraging other pupils to mock a pupil because he was undergoing gender reassignment would be considered less favourable treatment and therefore amount to direct discrimination. In fact, in any situation we can envisage, it would be unlawful discrimination for anyone working in a school to bully a pupil because of his sexual orientation or gender reassignment. That is the position that we intend to make absolutely clear in Amendments 138 and 139, to which I now turn. Clause 204 provides general interpretation for the purposes of the Bill. This clause makes it clear that detriment does not include unlawful harassment as defined in Clause 26. Through the Explanatory Notes to the Bill, we have sought to explain two things. First, this means that where the Bill provides harassment protection explicitly, it is not possible to bring a claim for direct discrimination by way of detriment on the same facts. Secondly, it means that where harassment is not prohibited explicitly—for example, in the case of sexual orientation and gender reassignment in education in schools—detriment includes unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. Therefore if a pupil was subjected to unwanted conduct by his school that satisfied the definition of harassment in Clause 26 and he believed that it happened just because he was gay, he would be able to seek a legal remedy under Clause 85. Depending on the facts, this might be direct discrimination by way of detriment. However, a number of organisations and Members in another place have expressed concerns that it is not clear that this provision in its current form can be read in the way we intend. These amendments are therefore essential to remove those doubts and clarify exactly how the provisions will work. I hope that many of those who have expressed concerns will be reassured by this clear statement that behaviour that amounts to harassment will be caught by the discrimination provisions where explicit harassment provisions do not apply. Amendment 106 was tabled by the noble Lord, Lord Ouseley. I understand his concerns over a sensitive and important issue. I assure him that I fully understand that bullying is a terrible problem that can ruin the lives of young people. The Government take it very seriously and are doing everything we can to tackle it. The relationship between one pupil and another is not covered by discrimination law and we do not think it appropriate that it should be. It is obvious that the relationship between a school and its pupils is covered, and I assure the noble Lord that there are already statutory duties on schools to deal with bullying. Head teachers in England and Wales are under a duty to put measures in place to prevent all forms of bullying and the Department for Children, Schools and Families has provided guidance for schools on dealing with racist, sexist, religious, homophobic and transphobic bullying, as mentioned by the noble Baroness, Lady Warsi. The guidance makes it very clear that a school must take all these forms of bullying seriously and that a failure to do so would mean that it would be vulnerable to discrimination claims. The equality duty in the Bill will also have a part to play in ensuring that schools address issues around the treatment of gay and transgendered children in schools. For example, it should encourage schools to develop and improve their anti-bullying strategies to deal effectively with the issues that arise in individual schools. We think that making schools liable to face charges of harassment because of bullying by pupils or third parties is a potentially divisive measure that could lead to unforeseen outcomes, such as schools’ bullying policies being driven by the fear of litigation, or even money intended for education being used for the payment of legal fees and damages. I believe that we already have measures in place for schools to protect pupils and to deal with bullying in all forms, including bullying because of a protected characteristic. Amendment 56A, tabled by the noble Lord, Lord Lester, also concerns harassment in the provision of public services and public functions. The noble Lord is seeking to ensure that users of public services are not subjected to harassment related to sexual orientation. It is true that people using public services do not have the same degree of choice about using them as those who are seeking commercial services where—if they do not like the way they are treated in a shop, for example—they can go elsewhere. Nevertheless, despite public consultation and active engagement by government officials with individuals and organisations who say that the type of conduct to which these amendments would apply goes on, these groups have provided us with no evidence to support that view. We are confident that the direct or indirect discrimination provisions would cover any unwanted conduct that service users may encounter. We should not forget that the equality duty has a role in ensuring that public authorities, in their capacity as service providers and in the provision of their public functions, will now have to give due regard to the need to foster good relations in respect of all protected characteristics, including those in respect of which no equality duty yet applies. Amendments 61 and 63 extend liability for third party harassment to cover applicants for employment, but it is difficult to envisage a situation in which this protection would be necessary. It is unlikely that a customer or client would be in a position to harass an applicant for a job, much less repeatedly, and no evidence has been presented to indicate that harassment of applicants is a problem. The proposal would impose significant burdens on employers, and we believe it would be a disproportionate extension of the law. In Amendment 62, the noble Lord, Lord Lester, seeks to extend employer liability for third-party harassment. This would cover the scenario, for example, where an employer would be liable for sexual harassment of a female by a client when he knows that that or another client has previously subject other female employers to sexual harassment. Only in these flagrant cases is it appropriate to go beyond the normal protections afforded under discrimination law by making an employer liable for failing to prevent the actions of third parties over whom he has little or no control. This is what Clause 40 now does. This extension would go much further and impose a costly liability. We are aware of the concerns that the noble Lord, Lord Lester, raised. Under the harassment provision of British discrimination law a person needs to show either an intimidating, hostile, degrading or offensive environment, or that their dignity was violated, whereas the definition in the related European directive required both these limbs to be satisfied. However, the two limbs largely overlap, so if there is any extension to the European approach it is of limited effect. Conduct that violates a person’s dignity almost invariably also creates an offensive, degrading or humiliating environment for that person and vice versa. Where the harassment is unintended the reasonableness test, as I shall call it, that a court or tribunal must apply ensures that, along with the complainant’s perception, all the circumstances of the case and the reasonableness of that perception are taken into account in deciding whether the conduct can constitute harassment. For these reasons, I ask the noble Lord to withdraw his amendment.