§ (1) In this section "discriminatory practice" means the application of a requirement or condition which results or could result in an act of discrimination which is unlawful by virtue of any provision of Part II or 111 taken with section 1(1)(b) or 3(1)(b).
§ (2) A person acts in contravention of this section if and so long as—
- (a) he applies a discriminatory practice, or
- (b) he operates practices or other arrangements which in any circumstances can call for the application by him of a discriminatory practice.
§ (3) Proceedings in respect of a contravention of this section shall be brought only by the Commission in accordance with sections 61 to 65 of this Act.—[Mr. John Fraser.]
§ Brought up, and read the First time.
§ 5.8 p.m.
§ The Under-Secretary of State for Employment (Mr. John Fraser)
I beg to move, That the clause be read a Second time.
§ Mr. Deputy Speaker (Mr. George Thomas)
It would be for the convenience of the House to discuss at the same time amendment (a), leave out 'or could result'.
§ Mr. Fraser
When we set about the preparation of this Bill we had to answer two basic questions. The first was: what kind of discrimination should be outlawed? The second question was: how should the law be enforced? Our response to the first question was broad. We decided that the net of the Bill should be wide and that the mesh of the net should be fine. In other words, we were not prepared to attract only one area of relationships, for instance in employment, as our predecessors had been, but determined to extend the Bill by including enforcement provisions to education, goods, facilities and services. In other words, we decided that the Bill should have a comprehensive coverage in defining the areas 1430 of discrimination which would be attacked.
We went even further than that. The Bill not merely outlaws overt, deliberate, intentional discrimination but, under Clause 1(1)(b) and Clause3(b)(i), invades those areas of unconscious discrimination where the sheer absence of thought militates against equal opportunities for men and women. We also dealt with the seemingly innocent devices which might have the same effect. We introduced into the Bill a second concept of discrimination—the concept of the effects test. If a person imposes an unjustifiable test, which has the effect, whether it was intended or not, of excluding women, that practice or habit of behaviour should also amount to discrimination. I believe that to be right, because it is no comfort to a woman who is denied an equal opportunity to say that it occurred only because the employer, the banker or whoever it might be had given the matter no thought.
Now, having introduced that concept of the innocent, perhaps unmeaning discrimination, we come to a problem which the clause is intended to solve. It is that the unintended discrimination may be so deeply entrenched or so overwhelmingly effective that it is practically invisible and, therefore, may not give rise to any single individual complaint. In other words, there may be an underworld of discriminatory practices of which no woman is aware. There may be no individual complaints and the discriminatory practice may, therefore, continue. The clause, therefore, defines the discriminatory practice and it gives the Equal Opportunities Commission the power to seek out those practices which might otherwise never see the light of day.
I come now to the second question which I posed at the beginning of my speech concerning how the law should be enforced. We believe that it is not enough to rely on individual enforcement. We need a powerful body like the Equal Opportunities Commission to do that, and the clause, therefore, seeks to give the commission power to seek out, investigate and prevent these discriminatory practices.
§ Mr. Greville Janner (Leicester, West)
Will my hon. Friend indicate the practical, invisible practice in respect of which there have been no complaints which he 1431 intends to ban as a result of this remarkable clause?
§ Mr. Fraser
Perhaps I may give an example. My hon. and learned Friend is a member of the Bar. He may be a member of chambers where the taking of people into chambers is done on the old boy network. Perhaps it is done in the Wig and Pen Club, but I do not know whether that club has women members. Nevertheless, it is done in such a way that no woman is ever offered the opportunity to go into a set of chambers. This may be an extreme example, but perhaps the practice is operated by the head of the chambers or someone like that in such a way that it never gives a woman a chance to make an individual complaint. If that sort of practice were widespread it would be right that the commission should look out for it even though there is no individual complaint and should be able, as it will under later clauses, to issue a non-discrimination notice to bring the issue to an end. I hope that example will suffice for my hon. and learned Friend.
If we omit the new clause there will be a gaping hole in the Bill because we shall be enhancing that commandment "Thou shalt not be found out", because an employer who is not found out on an individual complaint could continue his discriminatory practices, and it would, in effect, constitute a defence to say that there was no individual complaint.
It is, therefore, right where these entrenched practices exist, which never come to the attention of an individual woman so that she may make an individual complaint, to give the commission the power to seek out these practices and issue a non-discrimination notice. It is not enough, as we have learnt in the case of race relations, to rely on individual complaints.
§ 5.15 p.m.
§ Mr. Michael Alison (Barkston Ash)
I have two simple points to make, and I hope that the hon. and learned Member for Leicester West (Mr. Janner), who is an old debating partner of mine, will apply his mind, particularly while considering the argument about the clause, to Amendment No. 3, which the Government will be moving later. The effect of that amendment is such as to make it 1432 impossible for unintentional discrimination to arise unless there has been an individual complaint.
It is almost incredible that the Government should bring forward a new clause designed to have an omnibus, broadcast effect upon possible entrenched habits of discrimination of a generalised kind as operated by particular employers, when they explicitly argue that Clause 1(1)(b), which defines unintentional discrimination, should be amended to provide that such discrimination takes place only when something is demanded to the detriment of a complainant because the complainant cannot comply with that demand.
Unless there has been an individual complaint the whole of the operation of subsection (1)(b) is rendered inoperative by the Government's amendment. It is ludicrous that the Government should be bringing forward a clause with the object of enabling the Equal Opportunities Commission and all those concerned in these matters to make generalised discrimination notices or anything they like in the absence of individual complaints, when they are proposing an amendment to make the individual complaint the only basis upon which Clause 1 can operate. This is entirely contradictory and the Government must come clean about it.
The Government cannot have it both ways. They cannot say, on the one hand, that an individual complaint is necessary before the clause can operate and also say that they want the Bill to work in such a way that even when no individual complaints arise it is possible to determine that a discriminatory practice has taken place.
I must ask the Minister seriously to consider Amendment (a), in which we try to eliminate the hypothetical phraseology "or could result". I can give the Minister three cases in which a sudden hypothetical situation might arise. A firm might do one of three things. Let us assume that it is going to open another factory in another part of the country. It might require the willingness of workers of either sex to move to that part of the country. It might require employees, if it is going into a new line of production, to undergo a three-month course of residential training, and it might require women to be promoted to supervisory grades and that such women should have had industrial experience.
1433 It may in practice be impossible for the majority of women to comply with any of these three requirements. For example, they might not be able to move to the North or wherever the factory was planned because their husbands were working in the South and that was where their homes were. They might not be able to go on a residential course of training because they were housewives with children and a home to look after. They might not be able to accept promotion to a supervisory grade because they were debarred by the Factories Acts from working on the factory floor.
As the Bill stands, as amended, none of the situations with which the majority of women might not be able to comply would have any operative effect unless an individual woman said "I cannot comply with this because it is to my detriment". Only when she has made an individual complaint, according to the Government's later amendment, will it be possible to consider whether the discriminatory practice is necessary and whether the majority of women should comply with it. It can be triggered off only if an individual woman makes an individual complaint.
If the hypothetical phrase "or could result" were left in the Bill, a hypothetical discriminatory practice could exist whenever a factory changed its working practice, removed to another part of the country or engaged in a new product process. A hypothetical possibility of discrimination would remain until the last individual woman who might possibly be involved had had a chance to register her individual complaint that it was to her individual detriment.
It is far too uncertain a proposal to encumber practically every employer, on any change of working practice or location of factory, with this new hypothetical misdemeanour of a discriminatory practice which cannot be said to be discriminatory or non-discriminatory until the last stage of a test case on the last woman's individual circumstances has been determined.
The clause is sweeping, ineffective and contradictory, but if it is allowed to go through I hope that the Minister will make it less hypothetical by accepting our amendment to it.
§ Mr. Greville Janner
I hope that the House will permit me to spend a moment or two in dealing with the argument put forward by my hon. Friend the Under-Secretary of State about the comprehensive coverage which the clause is intended to give. The very extent of that coverage requires us not merely to consider the situation of every woman but to bear in mind what is at present going on in the Committee dealing with the Employment Protection Bill. We are asked to accept a clause which is very wide at a time when equal rights for women are being pursued to such an extent that a woman will be less likely to be employed when she is in competition with a man for the same job. The clause worries me not only because it is too hypothetical—although that is a worry—but especially because of its effect when combined with other measures. The House deals with each measure in turn, but that does not mean that we should regard each measure in isolation.
Under the law as it stands, on 29th December women are to receive equal pay, which is quite right. It is about time they did, and most of us have campaigned for it. Already women are entitled to retire at 60, whereas men have to battle on until they are 65. That is wrong, in my view, but it cannot be helped. It is nevertheless a matter that employers must take into account.
Women are to obtain maternity benefits. They will be allowed six weeks on full pay each time they leave work to have a baby. That is quite right, and industry will absorb the cost. Women will be entitled to return to the same job if they decide that they want to come back at any time within 29 weeks of their confinement. Meanwhile the employer has to sack the replacement, which will be unfair unless the replacement was told when she was taken on that she would be sacked if and when the person she was to replace decided to come back. That will cause great difficulty.
Above all, employers who want to employ women—and they are the employers we want to bolster up—will be faced with a plethora of potential industrial tribunal procedures which will be devastating in their extent particularly if they are extended beyond individual 1435 complaints into the realms of hypothetical uncertainty. In my experience—which is wide because I have been lecturing and talking to people concerned with personnel all over the country for several months—that is what is worrying people more than anything else. The people who are worried are those who are anxious that women should be employed on an equal basis and want to see extended the narrow footing which women already have in executive jobs.
I ask my hon. Friend to consider carefully whether the total result of the Bill at a time of high unemployment will not be that women—whom we are attempting to help—will find themselves discriminated against because such a high premium will be placed on the employment of men. When there is a choice between men and women for certain jobs, it will be so much easier and cheaper to employ men than women that I wonder whether women will not become so much more equal than men that it will be too easy to employ a man and too difficult to employ a woman.
I shall not vote against the clause or in favour of the amendment because if my hon. Friends, whom I greatly respect among the all too few women Members of Parliament, believe that this is the way to go ahead, it is their responsibility. Equally, I believe that it is my responsibility, although it may lead to some unhappiness amongst my friends and difficulties amongst those I love best, to point out that the Bill may be going so far as to produce exactly the opposite result to that which is intended by all concerned.
§ Mr. Dudley Smith (Warwick and Leamington)
I owe the House an explanation for my failure to take part in the Second Reading debate. On that day I was returning from Government business abroad.
I was much concerned with a similar Bill when the Conservatives were in office. Although the Bill is different in many respects from that which we proposed, the essence is there and so is the good will. Surely, individual and collective complaints of sex discrimination must be of the essence of the Bill. Unless the Bill is founded on that principle it will not generate the understanding which we hope to get from the public.
1436 Let us not deceive ourselves. The passing of the Bill will not overnight make everyone 100 per cent. in favour of it. If we accept the new clause without the amendment, the enforcement body will take on the role of hunting for trouble and looking around for every possible situation to exploit. Although that might assist and fill with enthusiasm Women's Libbers and extremists, it will undermine the confidence of people of good will who are prepared to do what they can to see that the Bill operates sensibly and favours women who are at present in certain respects discriminated against.
I agree with the hon. and learned Member for Leicester, West (Mr. Janner) that an extra liability will be put on industry at a time when it has many problems to deal with, among them equal pay. If industry finds itself harried by hypothetical cases it is likely to turn against the Bill.
§ Mr. Greville Janner
I did not say that I thought it would impose an extra liability on industry. I said that I was afraid that industry might not accept a woman when there was a male alternative, particularly in such areas as Leicester which I represent where a great many women are employed and where already, unhappily, there is a high level of unemployment.
§ Mr. Smith
I apologise for misunderstanding the hon. and learned Gentleman. I also agree with the argument that he has just put forward. The Bill will impose an extra burden on industry and it could well do without this clause, while at the same time showing the right attitude to the spirit of what is being proposed.
The example given by the Under-Secretary of State was particularly weak. I hope that he will advance far better examples. Other hon. Members will know better than I do the arrangements that are made in barristers' chambers, but let us consider the hon. Gentleman's example. I cannot imagine barristers' chambers getting away for long with a situation in which women are excluded. Surely after a short while there would be enough women barristers, or would-be women barristers, to raise such a case before the commission. The result would be that the situation could be investigated.
1437 5.30 p.m.
If we are to get the public in the right frame of mind to accept the Bill, and if we are to create good will, we cannot have this hypothetical situation. If we do not adopt what my hon. Friend suggests I think that this part of the Bill will smack of authoritarianism. If we take the example of race relations, which, as a member of the Select Committee, I have been studying here and in other countries, and which we in the House have been studying in previous legislation, it is clear that they have been founded on the idea of the genuine complaint which is well founded and which can be remedied. If we start getting into the realms of hypothesis we are in for trouble.
I am sure that the Government intend the new clause to be accepted as a measure of good will, but they will find themselves up against a great deal of discrimination. It will arise because of the kind of legislation which has been drafted.
§ Mr. Ivor Stanbrook (Orpington)
The new clause illustrates the nonsense which is in the whole Bill, and particularly in the illustration which has been given to us by the Under-Secretary of State. If a set of barristers' chambers decide to have a meeting to consider a new recruit it may be that a score of members will discuss the merits of the new recruit. In many cases, if not in most cases, it is the black ball rule which applies. Any new recruit who happens to be a woman might be excluded because one or more members of the chamber prefer not to have her as a new member. It seems that the application of the new clause is to allow the commission to investigate precisely what went on at the meeting and what went on in the mind of the one person responsible for the exclusion of the recruit.
In that way the whole matter becomes a nonsense. It means that the commission will have to investigate details of individual cases when apparently no complaint has been made. It will have to do so in an atmosphere in which it will be difficult to obtain information.
§ Mr. Ian Gilmour (Chesham and Amersham)
I take up what my hon. Friends have said about the example that has been given to us by the Under-Secretary of State. When the Minister was challenged by the hon. and learned 1438 Member for Leicester, West (Mr. Janner), he said that it would be wrong if vacancies were filled at the "Wig and Pen". Is he saying that under the new clause every set of chambers which has a vacancy will have to advertise in the law journals, and that if they do not do so they will be guilty of discriminatory practice? Presumably the Minister must have something in his mind of the sort of practice that he envisages. I ask the Minister to give the House a plausible example. That is something that he has not done so far.
§ Mrs. Maureen Colquhoun (Northampton, North)
Does the hon. Gentleman not accept that the examples that have been debated this afternoon are so far from the position of ordinary women in this nation as to make the House of Commons appear absolutely ludicrous and completely out of touch? Does he accept that there are few women concerned with what is happening in barristers' chambers? The great majority are concerned with the realities in living their lives as human beings and in living their lives in a better way. So far the whole debate has been so shallow and inhuman, as it relates to women, that I feel that it was not worth coming into the Chamber to take part.
§ Mr. Gilmour
We welcome the return of the hon. Member for Northampton, North (Mrs. Colquhoun). I think that the hon. Lady has been ill. We are pleased to see her back. I agree with what she has said. The only example that has been given this afternoon is that produced by the Under-Secretary of State. I thank the hon. Lady for making my point so much better than I could make it. The hon. Gentleman has given a totally unreal example. I ask him to give a genuine example of what he has in mind. If he cannot do so, there can be no justification for the new clause.
§ Mr. John Fraser
I am beginning to regret that I responded spontaneously to the attack of my hon. and learned Friend the Member for Leicester, West (Mr. Janner). Perhaps the Bar example was far removed from the experience of most women, but it might not have been so far removed from the experience of my hon. and learned Friend. If it did not commend itself to the House I shall try to provide some other examples.
1439 It may be that someone who advertises appointments requires that a person filling a vacancy shall have been an ex-Service man. If, for the sake of argument, this requirement is unjustifiable, having regard to the nature of the job, and far fewer women than men can apply for it, the application of the requirement would come under the new clause in terms of discriminatory practice.
There may be other examples. I have in mind an employer who refuses to promote people unless they have had a period of continuous service. It may be that the women working in that employer's factory are prone to be away from work for a number of months because they have children. For the sake of argument, it may be that the continuous service requirement is not justifiable. It may be that the women never complain about it and chose to accept it. Under those circumstances the Equal Opportunities Commission can use its influence and its powers to issue a non-discrimination notice and to change that particular practice.
§ Mr. Alison
The hon. Gentleman is still not addressing himself to the fact that, as he is proposing to amend the Bill, Clause 1(1)(b), which is specified and referred to in the new clause, will in future provide that a woman has to make an individual complaint before the matter becomes operative.
§ Mr. Fraser
I have the defect that I deal with only one point at a time. I intended to come to that point. As I have said before, the Bar example may be somewhat extreme. Indeed, I think that I conceded that it was when I put it before the House. However, there may be other instances where the promotion or appointment of people to important executive posts takes place under arrangements where no woman ever gets to learn of the vacancy. It is that kind of practice that we want to allow the commission to investigate. If that is not the position we shall be putting a premium on the employer not being found out and not inviting an individual complaint.
§ Mr. Clement Freud (Isle of Ely)
I do not want to talk about hypothetical situations any more than is necessary, but is the Minister suggesting that there would 1440 be an instance of discrimination if a woman tried to join the Corps of Commissionaires and was not accepted? It would seem to me that an ex-Service man when specified is specified either for bravery or for his decoration ability.
§ Mr. Fraser
The essential test is whether the requirement is justifiable. The issue is not simply that the requirement is one that cannot be complied with by women. To make out a case one has to prove that the requirement is not justified. There may be some confusion when the requirement to be an ex-Service man or an ex-policeman is justifiable. If it is a justifiable requirement, that is the end of the matter. However, if the requirement is not justifiable and if it discriminates against women, there will be a discriminatory practice under Section 1(1)(b) or Section 3(1)(b).
§ Mr. A. P. Costain (Folkestone and Hythe)
The Minister is getting into deeper water. Let us say that the employer wants to employ his quota of disabled ex-Service men and it turns out that there are not enough disabled ex-Service women, does the position that he has outlined still apply?
§ Mr. Fraser
Again the answer I have given is that there is always the test that the requirement is justified.
§ Mr. Greville Janner rose——
§ Mr. Fraser
May I deal with my hon. and learned Friend's first point before he makes a new point. He said that we should not agree to the clause because women are favourably treated under a series of Acts of Parliament and that we should not add to this provision. Frankly, I cannot understand his argument. We have always said that the Bill is an essential complement to the Equal Pay Act. If equal pay means that employers may wish to discriminate against women because they are entitled to equal pay, the Bill is an essential complement to that Act to ensure that discrimination does not take place. I did not follow my hon. and learned Friend's logic.
The hon. Member for Barkston Ash (Mr. Alison) said that the clause cannot apply because there has to be an individual complaint to establish unintentional discrimination under Clauses 1 (1) 1441 (b) and 3 (1) (b). It is right that if a complaint is brought under either provision there must be an individual complaint. That is the reason why in drafting the clause we used the words "could result" in the second line and used the word "can" towards the end of the first line of para (b). Therefore, I am surprised that the hon. Gentleman wants to take out the word "could" since it is essential to the working of the clause. Without that word the provision could not operate at all.
The hon. Gentleman said that by using the word "could" we might create a wide and hypothetical situation. On that point, the hon. Gentleman's argument has some merit. It could import too wide a risk that employers and others might be charged with discriminatory practices. Therefore, if the House will accept the clause as drafted, my colleagues and I will look at the wording to see whether there is that wide connotation. I hope that, with that explanation, the House will accept the clause.
§ Question put and agreed to.
§ Clause read a Second time and added to the Bill.