Equality Bill

I thank the noble Baroness, Lady Howe, the noble and learned Lord, Lord Mackay, and the Government for accepting the reason for Amendment 74. I do not want to detain the House for more than just a few moments, to explain why, first, I have not pushed the hypothetical comparator for indirect discrimination, but why I think that the Government’s approach, as just stated, is too narrow. I have not pushed it is because although the textbooks indicate that there may be no need for a hypothetical comparator, in the sad life I now have, I spent half the weekend looking at all the cases, and came to the conclusion that I could not honestly stand up here and say it is quite clear that there is no need for a comparator in indirect sex discrimination cases involving pay. However, first, I do not believe that applies where the attack is on a whole system of general application, rather than an individual case. Let me give a couple of examples. I did a case some years ago in the House of Lords where there was a challenge to the Employment Protection (Consolidation) Act 1978, which said you had to work for more than 16 hours a week to get employment benefits. The EOC argued that hit women disproportionately, and that there was no objective justification. The Secretary of State, the right honourable Michael Howard, said that was not so. The Law Lords, led by Lord Keith of Kinkel, unanimously held that there was clear indirect sex discrimination in the requirement to have to work full-time in order to get employment benefits, under European Community law. It was in no way necessary in that case for individual woman W to show, as a part-timer, that she was comparing her work and pay with individual male M. The attack was on the system of general application, and it was completely irrelevant whether the particular woman could find an actual comparator—what mattered was whether the system as a whole had adverse, disparate impact on women, and could not be justified. That example is already in the casebook. There the claimant was not a woman, it was the Equal Opportunities Commission, but it could now be the Equality and Human Rights Commission. The same I think applies with collective bargaining. Imagine a case like the speech therapists’ case, that Baroness Turner will remember, since she and I were—in our different ways—involved in it all those years ago. The speech therapists’ case involved mainly women comparing their work and pay with hospital pharmacists, mainly men, at the relevant grade and with clinical psychologists. It is true that Pam Enderby was able to point to a particular man who was a hospital pharmacist and a particular man who was a clinical psychologist. The basis of the case when it went to Luxembourg and came back was that there was a systemic indirectly discriminatory problem—not a directly discriminatory problem—that required the pay systems to be changed to eliminate the indirect discrimination. In such cases when the attack is on a pay system of general application, whether statutory or otherwise, EC law allows the claim. The really difficult question is whether it goes further. I believe that a case is pending in an employment tribunal that is probably on its way to Luxembourg, so I do not think that it is fair to ask the Government to legislate on that. However, I would like the Government to think about what I have just said. They may say what they like about their view but if I were right it would lead to more litigation. Amendment 70 agreed. Amendment 71 not moved. Amendment 72 Moved by