Enterprise and Regulatory Reform Bill

Debate between Jo Swinson and Stewart Hosie

Wednesday 17th October 2012 Commons Chamber

[Jo Swinson]

It has properly been considered. It is important to repeat that the protection is for conversations relating to a settlement agreement. A settlement agreement, by definition, is a negotiation, so it is unlikely to be a case of take it or leave it. The measure is about starting that conversation and enabling people to say, “We think this is an issue. Is this working out?” I think that enabling employers and employees to have those conversations without the fear described by many within the business community will improve management and not lead to the consequences the hon. Lady fears.

[Stewart Hosie (Dundee East) (SNP)]

I understand what the Minister is saying but I think a little honesty here would be helpful. If an employee behaves badly, they can be sacked. If a business is in trouble, an employee can be made redundant. It is no-fault dismissal by the back door when the conversation and what she describes as a negotiation, with such an imbalance of arms, means that contractual terms of redundancy can be diminished by an offered settlement to go with no fault. That is what this is really about.

[Jo Swinson]

I do not appreciate the hon. Gentleman’s implication. The provision is about making sure that those conversations can take place. Legal advice will have to be sought and given to the employee at that point, before any agreement is reached. Guidance will be given—as I said, we are consulting on that. We are building on and improving the existing procedure for compromise agreements, which have worked well in many cases. We are taking a provision that has been in employment law for many years and improving it.

Enterprise and Regulatory Reform Bill

Debate between Jo Swinson and Stewart Hosie

Tuesday 16th October 2012 Commons Chamber

[Stewart Hosie]

The Minister is describing an onerous list of questions, so perhaps she can tell the House how few need to be answered in order for the information to be provided so that someone can get proper redress.

[Jo Swinson]

This is a procedure about obtaining information. There are clearly differences between different cases. However, it is also clear from the consultation that this is being used as a sort of fishing expedition whereby additional questions are asked in order to produce an undue burden on business and perhaps sometimes to encourage the idea that the process might be seen to be far too burdensome and that a settlement should therefore be reached instead, even where there may not have been a breach by the employer.

--- Later in debate ---

[Stewart Hosie]

The Minister has said that this onerous, form-filling, information-gathering exercise costs £1.4 million, but she went on to say that the information can still be requested, verbally or in writing. Presumably a great deal of time will still be required by the employer to provide the information. So what net saving across the whole of business does she envisage? Is it a third of that figure—is it just over half a million pounds? What is the quantum in this?

[Jo Swinson]

As the hon. Gentleman says, there will clearly be some taking into account of and familiarisation with the new procedures, which will have a cost attached. The impact assessment therefore suggests that £800,000 is what business will save on an annual basis, and that is still a significant sum.

New clause 17 relates to cases where an employer has been found to have broken equal pay law or to have discriminated between women and men in non-contractual pay. It introduces a power to make regulations to require employment tribunals to order such an employer to carry out an equal pay audit. The pay gap between men and women stubbornly persists. In 2011, it was still more than 20%, having fallen only five percentage points in the previous eight years. That is why we are acting under the coalition commitment to promote equal pay. We have followed the lead of the previous Government in introducing a voluntary initiative, “Think, Act, Report”, to encourage employers to have more transparency about pay and other issues. More than 50 of Britain’s leading employers, covering hundreds of thousands of employees, are now supporting this initiative. They include Tesco, which publishes details of its gender pay gap, and household names such as BT, IBM, Fujitsu, Morgan Stanley and Unilever, which are all taking steps towards greater transparency. For those companies, which are doing the right thing, a voluntary approach is appropriate. I would argue that it is also often more likely to be successful, because of the genuine buy-in from senior management.

At the same time as we pursue that voluntary, positive action, we still think that it is right to introduce stronger legislative sanctions for cases where employers have been found to have broken the law. We know that many businesses agree with this approach. For example, in response to the “Modern Workplaces” consultation, a large organisation told us that equal pay audits could be an effective way to increase transparency where the law was seen to be breached. Representatives of one small and medium-sized enterprise said:

“For the sake of all those employers who do make huge efforts to have a fair pay system, if others can ‘get away’ with discrimination and generally provide women with lower pay, this is anti-competitive and a burden on ‘good’ employers. So a compulsory audit is entirely appropriate”.

Any regulations made under this power would affect only employers who are found to have broken the relevant laws. These regulations will: set out the content of an equal pay audit; outline the procedures for verifying that an equal pay audit meets an agreed standard; set out to whom and how an equal pay audit should be published; and specify the non-criminal sanctions that should apply where an employer fails to comply with an equal pay audit order.

I remind the House that the regulations will not be applied to micro and start-up businesses during the moratorium on new rules, which will apply until 2014. I assure the House that we will consult further on the practical detail before any regulations are introduced, and that they will be subject to an affirmative resolution of both Houses of Parliament.

--- Later in debate ---

[Jo Swinson]

I appreciate that Opposition Members are exercised about this issue, but it is not something that the organisation itself is exercised about, as is evidenced by the quotations from the general counsel in the Committee hearing.

A range of organisations responded to the consultation and gave their views on the change in the general duty. The Association of Chief Police Officers said that the general duty is

“broad in nature, open to wide interpretation and is more in the nature of a vision statement”.

The CBI said that it is

“too vague and creates unrealistic expectations”.

The Gender Identity Research and Education Society said:

“There is no essential specific legal function”.

I particularly like the way in which we managed to unite two organisations that are not usually in agreement—Stonewall and the Evangelical Alliance. The Evangelical Alliance said:

“It’s impossible to achieve and could lead to all kinds of unsatisfactory political interpretations”.

Stonewall said:

“We are not clear that the Commission has made a sufficient case for the retention of Section 3.”

I accept that many Opposition Members think that this change means that the sky is falling in, but the EHRC and its stakeholders do not concur with that viewpoint.

We are reducing the frequency with which the commission is required to publish reports.

[Stewart Hosie]

Will the Minister give way?

[Jo Swinson]

I am sorry, but I want to make some progress. I have taken many interventions.

[Stewart Hosie]

rose—

[Jo Swinson]

As a fellow Scot and in this week’s spirit of compromise and co-operation, I will give way.

[Stewart Hosie]

I am not sure about compromise and co-operation. The Minister spoke about the repeal of section 3, but it is also the repeal of section 10 of the Equality Act 2006. Although it makes sense to make the EHRC more efficient and cost-effective, I am curious to know how removing the specific duty to promote good relations between different groups makes any sense, given her declaration that she wants the organisation still to function and do the good things it was doing.

[Jo Swinson]

The hon. Gentleman does not need to worry about that because under existing duties in sections 8 and 9 of the 2006 Act, the EHRC still has all the requirements and focus it needs. In the consultation, a range of stakeholders spoke about the repeal of the good relations duty in section 10, and whether it was the Association of Chief Police Officers stating that a greater emphasis on its responsibilities in regulating the new public sector duty is broadly supported, or Stonewall saying that the need for the good relations function has not been sufficiently demonstrated, a wide range of stakeholders did not seem to think that there was a problem.

We are reducing the frequency with which the commission is required to publish a report on progress from every three years to every five years, and by allowing a longer time scale between reports, we believe the commission will be able to capture more meaningful change over time. We accept, however, that seismic societal changes or developments do not always happen conveniently every five years, and there is no reason why the commission cannot report more frequently if it wishes.

I know that many Opposition Members have concerns about the repeal of the good relations duty in section 10 of the 2006 Act, but we are clear that a separate mandate is not necessary. The commission’s most valuable work in this area—for example its inquiry into disability-related harassment—can be carried out under its core equality and human rights functions, which we are not amending. That view is supported by the evidence I have outlined that was provided to the Public Bill Committee by the EHRC’s general counsel and other stakeholders.

We are repealing the power associated with the good relations duty in section 19 of the 2006 Act because other organisations gather the information that that legislation permits the commission to monitor. For example, since 2011, police forces in England and Wales have been required to collect data on suspected hate crime relating to race, religion or belief, disability, sexual orientation and gender reassignment. The commission will retain the ability to review and use those data under its existing equality and human rights duties which—I repeat—we are not amending. In Scotland, where the EHRC’s human rights remit is limited, the Scottish Human Rights Commission will be able to use its powers accordingly.

On the power to make arrangements for the provision of conciliation in non-workplace discrimination disputes, as set out in section 27 of the 2006 Act, unfortunately the commission has consistently failed to deliver a well-targeted, cost-effective service. The free conciliation service funded until March 2012 by the EHRC offered poor value for taxpayers’ money. Average costs were more than £4,000 per case, compared with £600 to £850 when going through the Ministry of Justice website, “Find a civil mediation provider”.

A good and effective conciliation service should—of course—be available to those who need it, to help people resolve disputes without recourse to the courts. Good quality, accessible and effective mediation is readily available at reasonable cost throughout England, Wales and Scotland through the MOJ’s website that provides access to a full range of civil mediation council-accredited mediators at set fees, and in Scotland through the Scottish Mediation Network’s “find a mediator” website. For that reason, we are repealing the commission’s power to make provision for conciliation. The new Equality Advisory and Support Service, launched at the beginning of this month, will signpost individuals with discrimination disputes to those alternative, more cost-effective, mediation services. In evidence in Committee, the general counsel of the commission agreed that it is not

“particularly important for us to provide the service for conciliation.”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 19 June 2012; c. 79, Q175.]

Contrary to accusations from the Opposition, these legislative measures do not represent an attack on equalities or undermine the commission’s important role. On the contrary, we believe that they will help the commission to become more effective in delivering its core functions of promoting equality of opportunity and human rights, and creating a fair environment for jobs and growth. I am therefore unable to support amendment 56, and I commend the Government amendments to the House.