Equality Bill

My Lords, before I address Amendments 115C and 118A, tabled by the noble Lord, Lord Lester, Amendments 117 and 118 in the names of the noble Baronesses, Lady Warsi and Lady Morris, and Amendment 119 from the noble Baroness, Lady Knight of Collingtree, it might help the House if I explain the Bill’s positive action provisions. Clause 157 builds on and simplifies the current legislative framework for positive action. For the first time, these provisions will be extended to cover all protected characteristics and will apply to them all in exactly the same way. As long as the relevant criteria are met, these provisions can be used to address disadvantage, encourage participation where people with a particular protected characteristic are underrepresented, or meet particular needs. For example, a construction firm wishing to diversify its male-dominated workforce could add a statement to its job advertisement inviting women to apply. Clause 158 enables employers to take targeted action with regard to recruitment and promotion. This will assist employers to address underrepresentation and disadvantage, fill skills gaps, and create a more diverse workforce. The decision to extend the existing, more limited, provisions has been welcomed by businesses as a beneficial move. Any use of these provisions remains entirely voluntary; it is not a mandatory requirement. However, to ensure that employers do not misuse these voluntary measures, Clause 158(4) ensures that employers cannot adopt a blanket policy of favouring candidates simply because they have a protected characteristic and are disadvantaged or underrepresented. Each case must be considered on its merits. Clause 158 does not permit positive discrimination, nor is it contrary to the ““merit principle””. It simply allows an employer, when faced with two candidates who are as qualified as each other to carry out a specific job, to use the desirability of widening the diversity of the workforce as the criterion for choosing between them. I reassure the noble Lord, Lord Hunt, that my emphasis is no different to that expressed by my right honourable friend Harriet Harman in another place: there has been no change of heart. I am grateful to the most reverend Primate for his very reasonable support for these clauses. Before I turn in detail to the various amendments, I thank the noble Lord, Lord Lester, both for raising the important issue of proportionality in relation to positive action and for his insightful comments on the importance of positive action more generally. Amendment 115C would substitute ““which”” with ““provided it””, so that the clause would permit positive action provided it is a proportionate means of addressing disadvantage, meeting different needs or reducing underrepresentation. I completely agree with the noble Lord: we would not want the provision to permit action which is disproportionate, or to allow employers or service providers to misuse positive action measures in any way. However, to the great disappointment of the most reverend Primate, I can assure the noble Lord that Clause 157 as drafted will not allow positive action in any circumstances where it is not proportionate. Accordingly, replacing ““which”” with the alternative suggestion would have no impact on the intent or effect of this provision. Therefore, I urge the noble Lord to withdraw his amendment. Amendment 118A would make it explicit that any positive action measure taken in recruitment and promotion under Clause 158 has to be a proportionate means of achieving the aims set out in subsection (2) —helping people overcome a disadvantage or participate in an activity. While we consider that Clause 158 as drafted already implicitly embodies a requirement for proportionality, I accept that there are benefits to making proportionality an explicit requirement: it would it make clearer what this clause is about, allowing employers to take positive action where proportionate, and also better reflect the terminology used in Clause 157, where proportionality is already explicit. I am therefore content to accept Amendment 118A. Amendment 117 would change the present wording of the provisions in Clause 158(4)(a) from ““as qualified as”” to ““equally qualified to””. Amendment 118 seeks to delete ““to be recruited or promoted”” from the qualification criteria. We believe these amendments are misconceived and we will therefore resist them. It has been claimed that Clause 158 would allow employers to set an artificially low qualification threshold for a job to enable them to gerrymander the selection of the successful candidate—the idea that the pass mark is set so low that almost everyone will make the grade, in the hope that at least one candidate has a targeted protected characteristic. Clause 158 does not permit an employer to recruit or promote a candidate who is less qualified than another just because the employer wants to address disadvantage or underrepresentation—in any event, this would make no business sense. Where the assessment process, in whatever form it takes, evaluates one candidate as having scored, say, 95 per cent and another 61 per cent, those candidates cannot be considered as being as qualified as each other to undertake the job. It is immaterial whether the pass mark was set at 60 per cent, 50 per cent or 40 per cent; the clearly superior candidate must always be offered the job. We are confident that the clause as drafted achieves that effect. We consider that the amendments could have the effect of leading employers to interpret the clause too narrowly by considering the provisions as being solely about the equality of qualifications per se. An employer might misinterpret such wording as a requirement that candidates should have identical qualifications, whereas the provision is designed to be available where both candidates have demonstrated that they have met the employer’s particular requirements for the post to a comparable standard. Any assessment of candidates’ suitability will depend on a number of factors relevant to the job in question, such as experience, aptitude, physical ability, or performance during an interview or assessment. Formal qualifications are only one way in which a candidate’s overall suitability may be assessed. The impact of such a misinterpretation could be that employers will be reluctant to use the provision unless they have a situation in which candidates have absolutely identical qualifications, or identical scores if a scoring system is part of the assessment process, rather than looking at the respective ability and suitability of each candidate in the round. This would limit the scope for delivering real equality outcomes for women particularly, people from ethnic minority communities and disabled people, for example, who still experience disadvantage and underrepresentation in the labour market. For those reasons, I urge the noble Lord to withdraw the amendment. I will briefly mention Amendment 119, tabled by the noble Baroness, Lady Knight of Collingtree, which would appear to permit any action intended to increase the participation of people aged over 50 and disabled people in the labour market. This amendment is unnecessary. The noble Lord, Lord Lester, helpfully explained how the disability and age discrimination provisions in the Bill permit a wider range of differential treatment than is available for the other protected characteristics. In addition, this Government have done much to increase the labour market participation of people aged over 50 and disabled people through targeted programmes such as the Flexible New Deal, which provides tailored help for jobless people of all ages, including those aged 50 and over. I therefore suggest that the noble Baroness’s amendment is superfluous, but I also ask the noble Lord to withdraw his amendment.