Equality Bill

I welcome the clarity that this debate has brought, and I welcome the clarity that the noble Lord has encapsulated in Amendment 74. I am pleased to say that the Government will accept the noble Lord’s amendment. We are indeed a listening Government. The noble Lord, Lord Lester, also raised the question of hypothetical comparisons, and why they are not required in equal pay cases. We have allowed direct discrimination claims in Clause 74, where no equality clause applies but there is some evidence of discrimination. There is no such obvious gap in relation to indirect discrimination in pay, although we acknowledge that it is a very complex issue. If a woman can find a male comparator—just one comparator is enough—doing like work, work rated the same or work of equal value, there is an equality clause claim. If there is no such comparator, it is not possible to make a claim under the equality clause provisions alleging indirect discrimination in relation to contractual pay, so it is suggested that we should allow hypothetical comparisons. We do not accept that a hypothetical comparator is possible in relation to an equality clause claim—you cannot have equality of terms with someone who does not exist, and we do not think European law requires us to attempt to do so. So the remaining issue is whether we should allow indirect discrimination claims to be advanced in relation to contractual pay—where equality clause claims are not possible—as we have done for direct discrimination. We do not see how an indirect discrimination claim could in practice succeed in circumstances where an equality clause claim is not possible. If there is no man in the same employment doing work of equal value, or the same work, any claim must logically be based on evidence derived either from work done in a different employment, or work of avowedly different value. An indirect discrimination claim may proceed only if the circumstances are not materially different—Clause 23—and we consider a difference of employer or of kind of work as a materially different circumstance. We consider that it would not be possible to construct a suitable hypothetical comparator on the basis of such evidence, which would prevent an indirect discrimination claim being advanced. If we were wrong about that, it is nevertheless very likely that the same difference of employment or of work would be found to justify the difference in pay. More harm than good, in terms of new cases that would ultimately fail, would arise from legislating to make such claims possible in cases where they are not now.