[Ann Winterton in the Chair]

E11 Press for Change

The Committee deliberated in private.

On resuming—

Good afternoon. I welcome everyone to the Committee. At the outset, may I remind hon. Members and witnesses that we are bound by the time divisions that were agreed to this morning? That means that the first evidence session must end no later than 5 pm and the second no later than 6 pm. I hope that I do not have to interrupt hon. Members or witnesses in the middle of sentences. I will try not to, but if I have to, you will have to forgive me, because I will need to keep my eye on the time. First, we shall hear evidence from representatives of Stonewall, Press For Change, the Runneymede Trust and Race on the Agenda. Perhaps before hon. Members begin their questioning, you could introduce yourselves to the Committee, starting with Professor Whittle.

Stephen Whittle: I am Professor Stephen Whittle. I am here in my role as vice-president of Press For Change, which is the lobby group for trans people.

Ben Summerskill: I am Ben Summerskill from Stonewall.

Rob Berkeley: I am Rob Berkeley from the Runneymede Trust.

Theo Gavrielides: I am Theo Gavrielides. I am the chief executive of Race on the Agenda, which is an independent social policy think-tank focusing on issues affecting black and minority ethnic groups.

Thank you. Lynne Featherstone will begin this afternoon’s proceedings.

Q 6666

This is really to Stonewall. I wondered what concerns Stonewall might have, if any, about the new disparities that will be created by the Bill—for example, in terms of harassment, the exclusion of sexual orientation. I would like your views on that.

Ben Summerskill: I can certainly say on the issue of harassment we are not convinced that there is a need for protection in this area. Members of the Committee who have dealt with Stonewall in the past will know that we tend only to ask for things where we can provide hard evidence of need, and we tend then only to ask for  prescriptions that might put things right. We are simply not clear—we have tested and have tested with counsel a series of potential cases that might be picked up by harassment protection, and we cannot find one that would not be picked up in these cases by points that are covered by indirect or direct discrimination themselves. That is our position. If anyone can provide us with a case—no one has been able to do this—where the provision of goods and services protections need extension in that area, we would, as you know, quite happily support it but, as I said, we do have a history of only asking for things that we clearly think are necessary. We are committed to small government in that sense.

Q 67

It is an area of concern. I know it is quite hard to find precise examples, but I think one was given in which you might be staying in a hotel where there was a poster that denigrated homosexuals. That might be a case of harassment in a way.

Ben Summerskill: The case you have cited comes from a briefing that referred to a poster that had a rat on it, and the legend, “Homosexuals are as low as rats.” We are not aware of any circumstances where such a case has arisen. I can only reiterate that we have a long history—which I think people will acknowledge—of campaigning for legislative change, but only where there is an identifiable, real-life mischief. I hope that all members of the Committee will accept that we come to you only where there are identifiable, real-life mischiefs that we want to put right. We have not seen any genuine cases where we think that mischief could be committed that would not be covered by existing legislation.

Q 68

It does create an anxiety for me that there will be a differential between some of the strands. Can I move on quickly to Professor Stephen Whittle? Do you think that the Bill goes far enough to protect the transgender community from discrimination, and particularly those who choose to express their gender differently, but do not want to go as far as gender reassignment?

Stephen Whittle: We feel very strongly that the Bill does not go far enough. In fact, it will shortly be overtaken by European concepts that are being developed in law at the moment. Although we welcome the extension to people who are living permanently in their preferred gender role without gender reassignment, as trans people who have been there and gone through this, we recognise that our lives change over a period of time depending on what sort of obligations and workplaces we have. People cannot always make the decisions that they want to make. We have an NHS that often makes people wait years to get through the processes.

We feel strongly that the Bill as it stands is reliant on the sense that people are now living permanently in their new gender roles. The case of P v. S and Cornwall county council—the original case that gave permanent protection—also included the notion of intending to undergo gender reassignment, which typically is contained within this definition. If we are going to recruit people who are intending to undergo that, will we also include those who intend just to live permanently in their new gender role? Will we include those who intend to do something but have not quite made up their mind, or those who change their mind? Once we start to go down those lines, we realise that what we have is a characterisation  based on a put-upon definition, rather than the actual behaviour of trans people. That definition could be reframed better to recognise the diversity within the community, without providing huge problems for people.

Like Stonewall, we are clear that we do not want to seek help where there is not a real need. We come to the courts or to Parliament only when there is a real need. In the case of trans people, we think that there is a need for protection, and the Bill does not go far enough.

Q 69

Because it is medically based?

Stephen Whittle: It is based on a particular limited idea. The idea of then adding in an extra notion that is not gender reassignment—God knows what tribunals will make of it if there is a definition of gender reassignment and then some people are not undergoing gender reassignment. I can see the faces of some chairs of the tribunal now.

The fact is that trans people, who might be in a stage of life where they just cross-dress part-time, get harassed, thrown out of shops, told that they are not able to come into pubs or whatever. That goes right through to people who have undergone gender reassignment and also face those same difficulties.

Q 70

Are you saying that there is a whole spectrum in terms of transgender identity and that people should be protected against discrimination wherever they are on that spectrum?

Stephen Whittle: Absolutely. In fact, we would argue strongly that we experience discrimination because other people think that we look different. It is what those other people do, not what we do, that creates that discrimination. Therefore, the Bill needs to refocus upon what it is those other people see and react to.

I am persuaded by your argument.

Q 71

If I might just follow up on that, Professor Whittle, you may be aware that Dr. Harris and I are veterans of the consideration of the Gender Recognition Act 2004. I find very congenial your comment that there is no absolute point and would just add—perhaps you could confirm this—that one of the prerequisites of formally applying for a gender recognition certificate is that one has lived in the assumed gender for a period of time. Therefore, anything that has happened before is highly relevant to the legal process.

Stephen Whittle: Absolutely. People have to live for two years permanently in their preferred gender role. People may not have even started the medical process of gender reassignment at that point because waiting lists are, for example, four years in Sheffield and 10 years in Leeds. People live permanently in their new gender role without any medical intervention. The Bill technically covers them. We think that a line needs to be drawn, particularly in respect of single-sex services. If people are living permanently in their new gender role, they should be covered; if not, they should not be covered.

Q 72

Given that, if this comes to court, it is likely to involve a legal process, are you satisfied that you can come up with a suitable watertight definition that reflects the diversity and complexity of trans issues without actually making it impossible for anyone to decide whether discrimination has taken place?

Stephen Whittle: We have just spent the past week working intensely on that, and I am off to Strasbourg tonight to talk to some people there about it. We think that we have come up with a definition that would work very well in a tribunal system. It would ensure that only those people who really were covered would be able to make an application, whether through a tribunal or a court.

Q 73

Okay. I have no doubt that you will want to share that with the Committee in one form or another.

May I ask one other question, which is about juveniles? It surfaced in a different context this morning. My impression is that trans people under 18 and those who are contemplating their position are very much under the radar of this legislation. Is that a concern for you, and can we deal with them as well?

Stephen Whittle: This is another of our big problem areas. The legislation covers young people through various protections, but the problem is that “gender reassignment” is an absolutely inappropriate term to use in relation to young people. If someone rings me up about their 11-year-old with cross-gendered behaviour, and the school wants them out, what should I do? Should I say, “Let me speak to the 11-year-old,” and then explain that the child wants a sex change? Thirteen and 14-year-olds who make that statement get entwined in a huge, goal-driven medical process that does not let them get out, yet we know that 80 per cent. of young people who manifest very cross-gendered behaviour will not grow up to be trans but will grow up to be gay or lesbian.

We need to rethink that. Again, we have come up with a phrase and a definition that we think would suit. It is gender-varied and carefully defined and would fit into the framework.

Q 74

This morning, I pressed on the issue of the isolated bullied child in a school, and the possibility that the teacher and ancillary staff colluded in or even instigated the bullying, whether it be on grounds of religion, belief, sexual orientation or gender variance. I asked who, in that case, would or could take legal action on behalf of the child, and I was told that the Equality and Human Rights Commission could or would do so. First, can I have your take on that? What do you think? Do you think that that is adequate? Do you think that the Bill should be strengthened in respect of enforcement? Should it include provision for representative or class action?

Stephen Whittle: First, the provision against harassment really needs to be strengthened for young black kids. Our experience from doing work for the equalities review and, since then, for the European Union has been that bullying in school comes not just from children. There is a significant problem with staff—from ancillary staff right up to the very senior staff in schools.

What we feel very strongly is that the power needs to be given for a children’s solicitor to step in and take a case on behalf of the child, if need be. Just like in the matter of the ward of court, we are talking about really serious issues here, in relation to a child’s future well-being. Our experience is that many parents do not know how to do that, on the whole. They are too emotionally involved and they want to protect their children—so strongly that they protect them from the courts, as well.

We do feel it needs to be strengthened. The Equality and Human Rights Commission would be incredibly supportive on this; but it only has limited money to do these cases. So far in the history of the EHRC there has only been one trans case supported.

On a point of order, Lady Winterton. I should briefly like to refer to the fact that I omitted the Parliamentary Secretary, Government Equalities Office, from my list; perhaps I may append her to it. For this purpose in particular we are extremely grateful that she is on the Committee, with her expertise and experience in these complex issues. I think that that will be helpful to the Committee.

Q 75

A couple of things: first, on positive action, there are two provisions in the Bill dealing with that. Clause 152 is on the general issue, with which I have no particular problem. The question I wanted to ask—and I want to see which witnesses want to deal with it—is about clause 153, which is about positive action on recruitment and promotion. The way it is written in the explanatory note very much portrays it as being used in a tie-break situation: in a narrow set of cases where the candidates are equally qualified. On Second Reading it was put very much in that way. The Bill talks about candidates who are “as qualified as” each other, which, to my way of reading, is not quite the same thing.

If there is a genuine tie-break and two equally qualified candidates meet the requirements of the job in the same way, using one of the protected characteristics as a tie-break to widen the diversity of the work force seems to me acceptable. However, it also seems to me that the likelihood of that happening very often, and of there being two equally qualified candidates, is pretty slim. Equally, you cannot have a general policy. That would clearly be unlawful. I just wanted to get the take of the witnesses—those who want to comment—on whether they think the clause will be of wide use, or whether it will be used in those narrow tie-break situations. The reason I am concerned is that I do not want it to be used to discriminate against other groups of people. My experience is that that has a negative effect—the opposite effect to the one we want to see. I do not know who wants to pick that up first.

Rob Berkeley: I would be happy to. I think you are right that there would not be that many occasions when people would be equally qualified as somebody else. That is very difficult to prove. I am not sure whether there would be two people, two candidates, who would be exactly the same; but I do think it is an important provision because this clarification, of what positive action is, is really helpful. There has been in the past a huge amount of confusion, which has led people to not engage in the more general positive action, or have much guidance on what decisions they can make, so it is more an enabling piece in the legislation which will enable people in those rare cases to make that decision. But it is not, to me, going to be a kind of revolution in terms of increasing the proportion of disadvantaged groups that will take up positions.

Q 76

Just to be clear about your view, and the view of your organisation, is it your view that it is only acceptable to do that in those limited cases? Or,  if you have got a range of candidates, where there is a spread of ability, is it acceptable, where one candidate for a job is actually better than the other, to pick someone who is less good? They are qualified for the job—it is not that they are not qualified—but they are not as good as someone else, and it is purely on the basis of making your work force diverse. Do you think that that is acceptable, or do you think it is only acceptable in the narrow, tie-break-type situation?

Rob Berkeley: In the view of my organisation, we have been arguing for a long time for affirmative action which would enable that to happen in time-limited places and with some safeguards around that. As a next best position clarity is helpful, and I think this provides some level of clarity.

Q 77

Does anyone else want to answer?

Theo Gavrielides: Yes, I just wanted to support what Runneymede has just said. I think it is an important clause. I think it should be strengthened. This is something that we also campaign for—affirmative action is something that we also supported. Certain sectors will be using the clause, but I do not think that it will be used as widely as some people expect. There is also the issue of aligning domestic legislation with EU legislation.

Q 78

Do either of you want to speak?

Stephen Whittle: As someone who has interviewed people for many years for jobs and studentships, how often do we see two people with exactly the same sex and qualifications? It is so rare. In relation to trans people, this sort of thing is not going to make any difference, because they will simply say, “We chose not to do that on that occasion.” Much better is a sort of positive action—not positive in a legal sense. Several years ago the Metropolitan police put up two adverts on the tube that said, “London Met is recruiting—transgendered and transsexual people are really welcome”, and they recruited 23 people in the next six months. That was what made the difference. This piece of legislation will not make an iota of difference to the trans community, unless it is framed very differently and put in a different context.

Q 79

I want to ask about the public sector duty, if that is okay with colleagues—in particular, the controversy over clause 143(1)(b). I do not think there is any controversy over the first part, which is the public sector duty to help “eliminate discrimination, harassment” and so forth, or indeed the part that says:

“foster good relations between persons who share a relevant protected characteristic”.

But there is the part that says “advance equality of opportunity”, where it is controversial in respect of religion. I want to ask the panel whether they can identify any examples that would help rectify the inclusion of that duty—a problem that is based on the characteristics or needs of people who share a religion. Perhaps they can point to one of the examples in the explanatory notes on page E106, because I do not see it there, either.

Ben Summerskill: Our remit is sexual orientation and I can happily provide you with hard evidence. We would not be seeking a duty around sexual orientation if we did not have evidence that there were mischiefs to be  corrected. You probably need to direct that question to the faith and belief organisations, which I am sure will have established hard evidence if they want these provisions. It is not really for us.

Q 80

Let me explain why I think it might be for you. The wording of the Bill implies that it should apply to the needs of people, for example, who share a religion. People with religious views often feel that their needs relate to the doctrine of that religion. For example, they do not want to have a community where there might be too much gambling for one religion, or gay nightclubs might be around the place and they could argue that it is not fair on their needs, which are not to see that sort of thing in their community according to their strongly held and sincere religious views. Why are not their needs not to have that “shoved down their throat” being recognised by the relevant public authority? That has been cited in some academic papers as one of the concerns that might emerge. Is that something that you are aware of?

Ben Summerskill: Yes, I am mindful that these cases have sometimes been cited in academic papers. I am not sure we have found cases in the real world where these tensions would arise. Clearly, it is exactly the same as the answer on harassment. If we were persuaded that there were cases where they would arise, we might take a different view. But it is really not our area of competence. As I said, it seems to me that it is faith organisations that need to provide the evidence of need for this provision.

Q 81

What about the scenario where some religious organisations are entitled to discriminate under the exemptions when they are delivering services, as long as it is not mainly commercial? Even on the grounds of sexual orientation, there is that exemption in order to avoid upsetting or mocking the views of a significant number of their followers.

Ben Summerskill: We are not clear that that is the case.

Q 82

You are not clear that is the case? Let me refer you to schedule 23. Do you have a copy of the Bill there?

Ben Summerskill: I have a copy of the Bill, but we are still not clear that is the case.

Q 83

So, you do not believe there is an exemption for religious organisations, in providing services, that would enable them to discriminate on the grounds of sexual orientation? Is that what you are saying?

Ben Summerskill: I can only repeat that we are not clear that is the case.

Q 84

May I read you the relevant section, and then you can explain?

Ben Summerskill: That is a question you will have to ask the Chairman, not me.

Q 85

Paragraph 2 of schedule 23 states:

“This paragraph applies to an organisation the purpose of which is—” and then it lists a number of religious organisations. Paragraph 3 says—

Order. I think that, perhaps, on reflection, this might be a question to put to the Minister at some stage, so we should move on. I call John Mason to ask a question on the same issue.

Q 86

Thank you, Lady Winterton. To build on some of the things that Evan Harris was saying, there are bits of the public sector duty in clause 143 that I really like, such as the part about fostering good relations, which is to be welcomed, but do you feel that it puts an unfair burden on public authorities to try to hold together the eight protected characteristics? Will they be forced to choose between them and somehow create a hierarchy? How will they resolve conflicts, or will there not be conflicts?

Ben Summerskill: Let me answer that in practical terms. We now work with about 500 major employers, who employ about 5 million people between them, and I think that two thirds of them are public authorities. The vast majority of those employers support the proposals in the Bill, and not necessarily for political reasons, with either a small or capital P, but because they see a simplification and because they see an opportunity better to deliver and tailor public services right across the piece. Clearly it is quite proper that you should not focus on just one area of equality.

I think it is fair to say that where we have seen the biggest operational successes in such areas, not just around issues of employment, but around service delivery—we have done some quite detailed work over five years with the NHS in Scotland, which is now being mainstreamed right across the Scottish health service—that success came from encouraging those organisations to see all their patients as being different. It did not come from us going in with a series of strategies that related simply to sexual orientation, or from saying that they should get in someone who is an expert on race. I think the perception of a huge number of public bodies—Scottish Enterprise is another we work with that springs to mind—is that they see the prize of having a bespoke capacity to deliver public services for everyone as the prize contained within the public duty right across the board, rather than it being a duty that cuts in eight different directions.

Rob Berkeley: With or without the provisions in this Bill, public authorities will have to deal with these conflicts and resolve them anyway, so I hope that it gives them a space in which to do that, and enables them to do so. Given the way in which various equality organisations have managed to find spaces in which they can work together, that is not impossible. It takes some work, but it is not impossible and it can lead to some very positive changes, not just on particular protected grounds, but right across the piece.

Stephen Whittle: I was going to add to that. I work with public sector bodies, and there has been great enthusiasm, particularly at local authority level, for putting together the public sector duty obligations from the Equality Act 2006. We plan early work up in the north and north-west of England, and perhaps it is a stronghold of equal opportunities historically, but there has been absolute enthusiasm for that, and some very positive experiences.

Theo Gavrielides: A similar question was asked when the Human Rights Act 1998 was introduced. To answer your question fairly, it will put pressure on public authorities to bring themselves up to scratch. But that is not a reason to say that the Bill should not be passed. In fact, it should be a reason to provide support for such public authorities, whether it is training or guidance, to deliver and implement the Bill.

You spoke about public authorities. One of our main concerns is that the duty does not extend to organisations that will provide public services. I am talking about the public functions definition in the Bill. The Bill uses the Human Rights Act as a point of reference to define “public function”. After five leading cases in the House of Lords, a private Member’s Bill that was proposed, the recommendations made by the Joint Committee on Human Rights, and a clear definition in that Committee’s proposals under the recent Bill of Rights discussion, we are disappointed to see a reference back to the Human Rights Act. That means that a large majority of the services will not be protecting some of the most vulnerable groups in society. An example is the recent YL case in 2007, which involved an 84-year-old lady in a care home. The court said that under the current definition of “public function”, that particular care home, which was a private organisation, was not covered by the Human Rights Act. As a result, the case was turned down. The case affected 300,000 elders in care homes.

The population of black and minority ethnic groups in care homes is even more disproportionately represented. Black and Asian minority elders sometimes do not have family or friends in this country. They also have additional needs where there are language barriers, cultural needs or dietary requirements. If they are not protected by equality legislation, their rights, equality and dignity will be breached.

Q 87

On that point, may I ask you this? We also believe in diversity, as well as equality, and trying to keep the two together. Is it only individuals who can be diverse, or do you accept that care homes may be diverse too, and you can have different kinds of care homes, and people can choose which one to go to?

Theo Gavrielides: Of course they can be diverse. The Bill tries to encourage a mainstream culture of diversity and rights, not just in public authorities, but in society more generally. My point was slightly different—it was about the scope of the Bill, and ensuring that public authorities do not contract out public services in a way that enables them to avoid their equality obligations under the Bill. We have evidence to suggest that the BME, the black and Asian minority ethnic groups in this country, and black boys and girls in schools, in care and in academies, are hardly represented. We are concerned that those services will not be covered by the Bill, which, in the first place, was about tackling the persistent inequalities in society.

The problem that Theo is pointing to was corrected in the health Bill. The gap that you just referred to, rising from the cases of Heather v. Leonard Cheshire and YL, was filled. But I take your point about public functions, which was unexpectedly interpreted narrowly by the court. Of course, we are not entirely reliant on public functions. There is also a list of public authorities in the Bill that will be covered by it, and there will be additions to the list as time goes on. As you know, there is now a duty on public procurers to reflect the public sector duty in the way in which they procure goods and services from the private sector. That is in the Bill. I am not suggesting that we have perfected it, but almost all of the gap you perceive has been filled in. I am sure you are making a  good point, but I thought that those additions were helpful at this stage. Thank you, Lady Winterton, and thanks to the next contributor.

Q 88

I shall have another go with Ben Summerskill from Stonewall, if I may. I just want to get on the record his interpretation of the Bill. On page E236 of the explanatory notes, there is an example of what I am talking about. It states:

“A Church refuses to let out its hall for a Gay Pride celebration as it considers that it would conflict with the strongly held religious convictions of a significant number of its followers. This would not be unlawful sexual orientation discrimination.”

Do you think that that is correct? This is a chance to clarify your answer from before.

Ben Summerskill: With the greatest of respect, that is a different question. I am happy to attempt to answer it. Our impression is that as long as the church is letting out the premises in general, the exemption does not apply. All the Bill will do is consolidate existing law in that area.

Q 89

Right. So if it does something commercially to anyone, even if its main or sole purpose is not commercial, it should not be allowed to discriminate on grounds of sexual orientation in that way.

Ben Summerskill: We have always been crystal clear about that.

Q 90

I am not sure that the Bill is, but we can deal with that in the next stage.

Of course it is clear.

Q 91

For the record, the Solicitor-General says that the Bill is clear. Paragraph 2(2) of schedule 23 states:

“This paragraph does not apply to an organisation whose sole or main purpose is commercial.”

Order. I think that this issue can be discussed later during the passage of the Bill.

Q 92

May I move on to the subject of multiple discrimination? A recent Select Committee report pointed out that the current legal framework was totally inadequate in addressing cases of multiple discrimination. This Bill is the first opportunity to address that. How important is it for the Bill to address multiple discrimination? If you can, please give examples from your own experience, so that we can understand the extent of the injustices that are being done under the current system. I do not mind which of you starts.

Rob Berkeley: I will start. It is crucial that the Bill responds to the notion of multiple discrimination. As discrimination becomes more complex and sophisticated, particular groups will not be covered by a single protected ground approach. It has been relatively difficult to find numerous accounts of situations in which multiple discrimination applies. I suspect that, in part, that is because people choose to go down one route or another and try to make a case on the basis of one ground and fail. From my  experience, a black gay man faces a different set of prejudices to a white gay man and other men. That would not be covered under this legislation. That is a missed opportunity.

Theo Gavrielides: I want to support what Runneymede just said. The purpose of the Bill is to bring consistency and to address persistent inequalities. Under the case law before 2004, you were able to bring a case about multiple discrimination on two grounds, whether it was race and gender or race and sexual orientation. After a case in 2004, you were not able to bring a multiple discrimination case. We support the position of the Equality and Human Rights Commission that two levels of discrimination are enough. We urge for a multiple discrimination clause in the Bill. Otherwise, this would be another missed opportunity, given the knowledge that we all have different elements in our identities. We can be black and gay and we can be black and disabled at the same time.

Q 93

Do you have any thoughts on how you can reconcile two discriminations with very different burdens of proof? The word that you used there of “consistency” is important because then everyone knows exactly where they stand. Trying to ensure that there is not a dumbing down of the standards of proof, which does not help anyone, is something that will have to be addressed. Have you thought about how we might address that?

Theo Gavrielides: Yes. I have in front of me a very useful paper that lists multiple discrimination cases before 2004, and cases that were brought after 2004 on the grounds of multiple discrimination that were turned down. I am happy to give you the paper. I also have a separate submission that I want to make, which summarises the points that I am making today.

Thank you; I will find that very helpful.

Q 94

In relation to encouraging diversity and political participation, there is provision in the Bill for the women-only shortlist to be extended to 2030. Places can be reserved on shortlists by parties on the grounds of race and disability. Do you think that that will achieve greater diversity? Do you think that it goes far enough, and are you in favour of the provisions as they stand?

Ben Summerskill: I do not want to cause any distress to anyone present, but we are very alive to the fact that while women-only shortlists in the Labour party—that is where they have existed—have brought more women into Parliament, they have not done very much to promote diversity in general. Not a single woman has been successfully elected to Parliament from a women-only shortlist who is black or from a minority ethnic community. Not a single woman who is lesbian has been successfully elected to Parliament as a consequence of a women-only shortlist. Happily, one disabled woman has been elected. I use the word “elected” because there is certain amount of sophistry about how all sorts of women have benefited from women-only shortlists in what were unwinnable seats for the Labour party. I know that similar arguments go on around what I think is called the A list on the other side of the equation. That does not mean that we oppose women-only shortlists, but we think the opportunity  to make provision for better representation, particularly given the very serious under-representation of lesbian and gay people in the House of Commons at present, could be extended in the way that it is allowed for in terms of race and disability.

Theo Gavrielides: I want to support what has just been said. Of course we welcome the shortlist for women. However, if we go back to the equalities review, which informed the Equality Bill and the discrimination law review, it gives us dates by which the gaps will be breached. One of the gaps that will probably never be breached is to have a representative House and representative MPs and councils. We want to see more black and minority ethnic groups being represented. We want to see more gay groups. Again, we go back to the multiple discrimination issue—the BME groups can also be BME and gay groups, or BME and disabled groups as well.

Q 95

What provision would achieve that, other than what has been proposed?

Ben Summerskill: This is where we touch on areas of positive action. In practical terms, there is a series of things that can be done to encourage people to engage in party politics—even though at the moment that is a challenge—and to stand as candidates in winnable seats under the current system. Clearly, it is an issue that, in some cases, is being addressed in parallel to this process by the Speaker’s Conference, which is another terrain for the discussion currently taking place. Clearly, we hope that it is something that Members of the House of Commons—without me being so impertinent as to encourage you to vote for anyone in particular—will press candidates for the Speaker on prior to casting their votes in the next few weeks.

Q 96

May I take us back to the question of multiple discrimination, which John Howell was asking about before? I am concerned because there is a clear intellectual argument about why multiple discrimination is important—we have already had that very ably summarised. It is clearly a serious issue. The problem that I have encountered until this afternoon has been in asking a number of stakeholders in this area to provide me with examples—concrete, real world examples, rather than theoretical ones, although there are some pretty good theoretical ones. It was not until Mr. Gavrielides, just now, said that he had a useful paper with examples that I had heard anyone bold enough to stand up and say, “I have got some.” Would you please circulate that to the Committee as promptly as possible, Mr. Gavrielides?

In advance of that, could you tell us about those cases, which you were citing, that were lost, post-2004—I think that that is when you said the courts changed the rules? The argument that I have had made to me was that anyone who has had troubles with multiple discrimination since then would have either won it or lost it on a single ground of discrimination, whether or not they would have won it or lost it on a multiple ground of discrimination—that is to say, the outcome of the case would not have been affected one way or another. Do the examples that you have in your paper there, which you are going to cite to us, disprove that assertion and show that it would have actually made a difference to the outcome of those cases?

Theo Gavrielides: There are some cases that you can bring to court only as multiple discrimination cases—you cannot bring the cases to court as a single discrimination case; it has to be a multiple discrimination issue, if that makes sense. The cases that I have in front of me classify direct and indirect discrimination and harassment, and combine cases such as gender and race—I have a few—gender and age, gender and religion, and combinations of the different so-called equality strands.

Q 97

Does that mean that they were not brought at all, or that they were brought on a single basis and lost, whereas in your view they would have been run if they could be brought on a double basis?

Theo Gavrielides: Most of them were brought as a multiple discrimination case, not as a single discrimination case, and were lost—after 1994.

Q 98

I think that we shall have to circulate that—that would be very helpful. Sorry, Professor Whittle.

Stephen Whittle: It is very important to remember that if someone brings a successful multiple discrimination case, they may well have some sort of compensation for that from two different sections—two different parts, effectively—and it may well make a considerable difference to their potential life. Most discrimination cases provide so little—someone has lost their job, but what the hell! It is a sort of baring chests exercise, almost. However, when someone has experienced multiple discrimination and they have brought both cases successfully, then their award is multiplied as well. That can make a huge difference.

Q 99

I guess my point was not about the intellectual logic of multiple discrimination existing, but whether people had concrete examples of it existing in the real world. A final question on this to any of the panel: how do you feel about the notion of limiting multiple discrimination to just two grounds? We have all the different strands of discrimination in the Equality Bill, so why limit it to only two?

Rob Berkeley: At least it is further than we are now.

Q 100

But intellectually, would you want to see it limited to three, four or none at all, or just lump them all in—not that I think that anyone would necessarily qualify for all of them; but, in theory, as many as apply?

Rob Berkeley: As many as possible and practicable. Two may be a way ahead, and would be better than what we currently have.

Theo Gavrielides: The academic answer is yes, we should extend to all equality strands. The lawyer’s answer would be that that is almost impractical. We would need to wait for test cases to see how it is going to play out in practice.

Q 101

It would be hideously complicated, I am sure.

Ben Summerskill: That would simply put the lawyers on to “Christmas has come early”.

A huge regulatory burden, which would be gratefully looked at.

As no one else seems to be catching my eye, I thank the witnesses for their contribution this afternoon and suggest that we move on to the second set of witnesses.

Q 102

I welcome the second set of witnesses this afternoon, from the Fawcett Society, the Women’s National Commission and Women Like Us. Before members of the Committee begin their questioning, perhaps each witness would like to introduce themselves and their organisation to the Committee.

Katherine Rake: My name is Katherine Rake and I am the director of the Fawcett Society, which is the UK’s campaign for women’s rights. We date back to 1866; our first record for a campaign on equal pay is 1953, but I am sure that one precedes that.

Joyce Gould: My name is Joyce Gould. I am chair of the Women’s National Commission. We are a non-governmental body, which was set up by Harold Wilson in 1969—we are celebrating our 40th birthday this year. We do not go quite as far back with our debates on equal pay, but they go back an awful long time. We are the voice of the women’s organisations out in the country. We have more than 500 partner organisations, which we work to out in the country.

Emma Stewart: My name is Emma Stewart. I am one of the co-directors of Women Like Us. We are a relatively new organisation—we have been going for four years. We are a social enterprise that helps women with children to balance care and responsibilities with working. We reach women through their children’s primary schools, build their skills and confidence and match them to employers offering, specifically, part-time flexible employment. We are London-based and have 10,000 women registered with us, and more than 2,000 employers.

Thank you.

Q 103

I want to probe the witnesses on the issue of the gender pay gap proposals in the Bill. At the moment, clause 73 gives Ministers the power to make regulations without putting in a great deal of detail about what those regulations might consist of. I know that the Equality and Human Rights Commission is doing work on getting agreement on the metrics and information that employers would have to publish. It would be helpful if the witnesses could give the Committee their thoughts on what might be appropriate.

Katherine Rake: First, let me point out that the provision is due to take effect only in 2013. As I am sure the Committee is aware, when the Equal Pay Act 1970 was introduced 39 years ago, there was provision for organisations to have five years to put their houses in order. Our view at Fawcett is that organisations in the UK have had a very long time to put their houses in order, but we have one of the widest gender pay gaps among EU countries. We would say that there needs to be action much sooner than 2013.

Having said that, we welcome the provision to increase transparency in pay. One reason why pay discrimination continues is that people simply do not know that it is  happening. We have called for tough preventative measures on pay discrimination. We have called for a long time for mandatory pay audits and for a requirement on all organisations to review their pay systems to make sure that they stay within the law. There is a lot of myth about what those pay audits would be and a lot of discussion as to whether they are additional regulation. We would rather see them as a health check to make sure that organisations are not breaking pre-existing laws—we would see them as a much more positive and preventative approach.

The reason why we are very strong in our call for that to be mandatory is that our pay system is currently rather like a health and safety system that allows workers to go on to a building site when there is a big hole in the floor, with someone saying, “When you fall through the hole, give us a bell, and we’ll protect you.” That is how our pay system is structured. It is up to an individual first to experience the discrimination and then to be brave enough, rich enough and long-lived enough to take up the case—we know that cases take a huge amount of time and have a big psychological cost for the individuals involved. One reason why we argue for mandatory pay audits is that that turns the argument upside down and puts a requirement on organisations to prevent pay discrimination from happening in the first place.

Q 104

Just to come back on that, because I was not clear enough at the beginning, if you were to do a pay audit, what information would you publish? By the way, the Bill does give Ministers the power to act on this—it does not force them to wait until 2013. It is just that the Government have said that they do not intend to make regulations yet. In terms of the kind of burden that the provisions will impose, what exactly will you require people to publish and will that information go to the heart of the matter? When we have this debate, the question as to the size of the gender pay gap depends to some extent on what you are comparing—is it full-time with full-time? Is it full-time with part-time? We have to be clear about what we are comparing. Have you done any work on what you might publish?

Katherine Rake: Indeed, as have the Government. There is an existing code of practice on equal pay that sets out an equal pay review process, which we anticipate would continue. Although organisations are not obliged to follow that code, the fact that they have not done so can be taken as evidence in an employment tribunal. So there is a code of good practice. That code sets out a full pay audit. What you need to do is, first, to evaluate the skills and experience that are required for jobs and then to check whether you are paying individuals in equivalent jobs equivalent salaries. That is the system, and you need to have a job evaluation system underneath it to make sure that you do that full check of jobs. Historically, women’s work has tended to be undervalued, and there have been major cases around equal value in the public sector. Because of the traditional undervaluation of women’s work, they have been paid less. The occupations in which they are concentrated have historically been undervalued. We already have provision that makes that illegal, but a pay audit would make sure that you have the checks in place to make sure that people are not discriminating. Is that clear enough?

Yes.

Joyce Gould: We go some way with Fawcett on this. I would start by saying that we welcome the debate. This is an important debate about which way we should go and what is the most effective way of making sure that we establish equal pay. As Katherine says, it is 39 years since the Equal Pay Act. It is now dead. It has not achieved anything for a long time, and it is time that we re-examined the whole question.

Where I have some differences with Katherine is that equal pay audits are only part of the solution. We need to go much further than that. I would certainly welcome—as would the WNC—a review of the cause of the current position on equal pay, whether it is men and women’s different skills in the labour market, whether it is women’s segregation or whether it starts in education. We should also look at the quality of work and training, and some of the history that has established the present situation. A wider agenda than just mandatory pay audits needs to be addressed. Although pay audits are part of the solution, as a whole we need to have a much wider, in-depth analysis of why the situation is as it is and why it has remained so for 39 years, and why a solution has not been achieved.

I take the point about the four years and I welcome the comment that it does not have to be four years. If it looks as though businesses are not responding voluntarily to identifying the problems, we will obviously have to look at some sort of statutory development. Evidence from history shows that, if you make the demands public and they are in legislation, often cultural change follows the legislation. I really believe that, and I hope that what is in the Bill will be achievable and will actually happen.

One of the other important aspects of equal pay is transparency. It is absolutely essential that everyone knows the situation in a company. It will make a big difference in terms of making people change their minds and making sure that employers get embarrassed by a situation. We must ask why so many companies have the secrecy clause. Is it because they actually want to pay women less than they pay the man sitting next to them—for whatever reason? The transparency clause—clause 72—will help the process. It is terribly important that we have it. As the Bill goes through, the debate will continue. We have not come to a conclusion about its wording, but we welcome the debate because it has to be had. I am not sure that just going down the road of mandatory pay audits will satisfy the need. There is a wider need than that.

Thank you.

Emma Stewart: In terms of what regulations are put in place, our view is that it is important to ensure that there is a focus on the part-time gender pay gap. Looking at what specific information is published and what metrics are used, we know from evidence that the gender pay gap is significant when it comes to comparing women’s earnings on a part-time basis with men’s earnings on a full-time basis.

Q 105

Can I just be clear about what you mean? When you say “the part-time pay gap”, do you mean comparing men working part-time with women working part-time, or women working part-time with men working full- time?

Emma Stewart: Women working part-time with men working full-time.

Q 106

You think that that is an appropriate comparison?

Emma Stewart: Yes, we do. From our experience as a front-line delivery organisation, we focus particularly on supporting women with children back into the labour market when they have taken a career break. We know that part-time opportunities are very few and far between. We know that part-time work is often considered to be of low value at low pay, and that there are not sufficient opportunities for women who are looking to go into the labour market on a part-time basis. Various data highlight that there are 500,000 women across the UK who want to work, but who cannot find the kind of work that they need to fit in with their caring responsibilities. We feel that if you ignore the part-time gender pay gap, you are penalising a vast majority of women with children who want to re-enter the work force. Therefore, from our perspective, it is essential to include that.

How information is promoted is worth consideration, and our view is that it is important to consider promoting the positive business benefits of equality and diversity practices to employers. For instance, there could be some sort of fair trade mark that would equate to the equality and diversity agenda. Employers would be able to say that they are an employer of choice and had responded to that.

We work with a vast number of small and medium-sized enterprises, and the other issue for us is that legislation is only one part of this. There needs to be a raft of measures in place to ensure that businesses, particularly SMEs, that want to engage and offer greater opportunities to women and men in their work force, can consider greater flexibility in the workplace and are supported in getting access to the services that they need. In our experience, it is essential that employers understand the business benefits of flexibility within the workplace, are able to see good examples of best practice and can act on it with the services that exist to support them.

We welcome the recommendation that the initial stance would be on a voluntary basis, but with very tight metrics and clear measurement. As people have stated, if that is not implemented and we cannot measure change, the view would be to move towards statutory regulation.

Q 107

Briefly on that point, I am of the view that if businesses have not done it in 39 years, I cannot see that they will rush forward now. I wonder whether you have any ideas about why business has been so slow to deal with this glaring inequality.

Katherine Rake: Some businesses discriminate knowingly. They do it and get away with it because they know that an individual will sacrifice their career and job if they choose to pursue an equal pay case, because of the complexities of taking those cases. Unless they are in a very highly paid occupation and the benefits of taking a case are likely to be large, or they have strong union backing, it is very unusual for an individual woman to take such cases. A lot of the people who call us walk away from the situation feeling a huge amount of disillusionment.

Pay and pregnancy discrimination tends to go hand in hand. Often, the last thing that anybody is prepared to do when they have just had a baby is to bring a joint  pay and pregnancy discrimination case. Some employers are simply bad employers who break the law and know that they can get away with it. They think that the risks and financial costs of addressing that are higher than the risks of wittingly knowing that they are breaking the law.

There is another group of employers where pay discrimination is hidden within the system. That is because women and men are clustered in different jobs. As I said, there is a historical reason for paying the people who pack the meat in a factory differently from forklift drivers, even though the skills and experience needed for those two jobs are comparable. Because one job has been female dominated, it tends to be lower paid than the one that has been male dominated. Those employers are breaking the law and not necessarily realising it. That is why we must require them to address that issue.

It breaks down into those two cases. There are some bad employers getting away with it and then, I suggest, there are a large number who discriminate without knowing it. That is why transparency is the key.

Joyce Gould: I want to pick up on the last point that Katherine made about transparency. Having transparency in the Bill is so important because once we disclose what some employers get up to, they will not like it and will find that they have to conform in a way that they did not expect. I believe that that lack of transparency has been one of the reasons why we have not been able to achieve so much in trying to get rid of the pay gap. However, a range of other factors play a part. This relates to a much more social agenda and I will give an example. I had a discussion with some women from the south-west, where there were serious transport problems. We went to see the Minister to talk about community buses. Because there is such difficulty in transport, the women have to take a low-paid job that is well below their skills—it is the only thing that they are able to get to. That is just one example, and a range of other social issues have to be looked at as to why the pay gap has been retained.

Katherine made a point about the employment tribunals, and we know that there are thousands of cases, but very few actually get heard. That is another reason why you do not take a case—you might wait five years before you can get a word in, by which time you could have changed your job.

Q 108

If someone who thinks that they are paid unequally takes a case, do you think that the necessity of having to find a real comparator plays a part?

Joyce Gould: Yes. The Women’s National Commission is very much in favour of hypothetical comparators. We will have to see how we progress that through the Bill.

Q 109

You would like to bring that into the Bill, perhaps?

Joyce Gould: Yes.

Katherine Rake: I think that that makes a huge difference. The other thing is that often, people have to take a case alone. If the Bill had an ability for representative action, in addition to hypothetical comparators, that would make a huge difference. Many people whom we speak to, who have taken cases, say, “I know it is not going to  make a difference to my life, but I am worried about the colleagues whom I have left behind.” Many of them would have left the employment by that stage, because they know that there is a systemic problem, and the ability to stand together to take cases is hugely important.

Q 110

I am sure that we will debate those kinds of issues when we go through the Bill.

Emma Stewart: I just want to comment that in our perspective, one of the reasons why business has been so slow is that there are a huge number of myths, looking particularly at flexible and part-time working, which has enabled more women to enter the labour market after they have had children. In particular, there is a lack of services that can help businesses to understand how to implement flexible and part-time working. There are various specific examples, such as how to design jobs that are part time and flexible and how to train line managers in managing a flexible work force. The myth often persists around the perceived regulatory cost of flexible and part-time employees, which is not necessarily the case.

Q 111

I thought that it was quite interesting when Mark, through the Chair, asked you if you were comparing part-time women with full-time men. There is obviously a huge differential. Once you go part time, you are not considered—the high jobs do not come in part-time packages. What can I do in the Bill to help with that? Is there some way? I understand that there is a whole raft of things outside the Bill in terms of training, education and working with employers. But is there anything in the legislation that you see that we can help you with? You do not have to answer now, but think about it. Inevitably, we will take the Bill through, and I am sure that we will all welcome external things. I am just looking to see whether there is something around that differential that we can work on.

Emma Stewart: I think that there is a raft of measures outside the Bill—certainly, ring-fencing and ensuring that there is a focus on auditing the part-time gender pay gap explicitly. In other areas of the Bill, such as procurement, we certainly advocate that in considering procuring good employers, there could be a commitment from those employers to provide a percentage of part-time, flexible jobs in their organisation.

Thank you.

Q 112

I just want to pick up on the point about the gender pay gap. I was particularly interested in Baroness Gould’s point about there being many reasons for inequality in pay. Discrimination clearly is an important one, and I think that everyone in this room will be united in trying to find ways to sort that out. I am just a little worried, though, about the pay audits. Even if they are done in the way that Ms Rake was describing—following the guidelines to ensure that we are comparing like to like—is anyone on the panel worried? It might lead to a situation where we move from false negatives, where women are not able to bring cases when they should be able to, to a situation of false positives, where firms may be blamed for inequality in pay, which is not to do with discrimination. They might  have done all the right things to ensure that they are not discriminating intentionally or unintentionally—following the two classes of discrimination that Ms Rake described earlier—but the inequality is due to disadvantage or some other reason. Is there a danger of that, or does the reporting guideline that Ms Rake described avoid it entirely, meaning that we would get no false positives?

Katherine Rake: If you design the pay auditing system correctly and as the code suggests, there is no danger of false positives.

You raised the broader point of where the boundaries of responsibility for individual employers and the state lie. Something that needs to be developed with this legislation is a set of measures for the Government’s own delivery. Clearly, the Government should not require other organisations to take action without making an equivalent commitment to things such as making quality part-time work available, improving structural provision to allow people to travel to the jobs they want more successfully, ensuring that transitions into and out of unemployment are supported appropriately, and child care provision. There are problems with every one of those measures, and it is not within the reach of an individual employer to address them.

That does not take away from the case for pay audits, but it shows that there must be an extended argument about the Government making a firm commitment to addressing women’s employment disadvantage more generally, and to do so using all the tools they have. They should be bold. We have a target to narrow the gender pay gap, but it does not specify by when and by how much. That should be the first measure the Government take to show that they are taking a lead by ensuring that they provide the circumstances in which employers can pay and promote women effectively.

Q 113

I will follow up on that in a second. Do the other two panel members have a comment on the last question?

Joyce Gould: I do not disagree with that, although perhaps I do not agree 100 per cent. with the conclusion. I think that it is right. That is why, when I listed the things that I think cause disadvantage, they were Government responsibilities and not employer responsibilities. I agree with Katherine that alongside this there has to be a focus on what the state and Government are doing to get over some of the other problems. Some of that comes in other parts of the Bill, not least in the socio-economic area, which I think could make a big difference to women’s lives and might assist an awful lot in some of the areas I listed.

From a gender point of view, we must ensure that we have girl and women apprentices in training—I do not think that we should have an age barrier on apprentices—as well as the concentration that we tend to have on boys and men. We need to ensure that there is absolute equality in such provisions that we make. Another area is paternity leave. We should be looking not just at maternity leave but parental leave, so that we try to get the balance right between men and women in the work force and the facilities they have.

Emma Stewart: In terms of putting the emphasis on employers, there is a limit to how much we can ask them to do. The Government could step in to improve the business support services available, particularly to small  businesses, through organisations such as Business Link. They could be made to address explicitly issues of equality and diversity and to ensure that they can provide adequate, accessible advice to businesses. In many instances, we are looking at legislation in relation to gender equality duty, but as you said, people will experience other areas of inequality in businesses that are above and beyond the control of those businesses, per se. Businesses need more support to help those candidates, clients or employees get the support that they need.

Q 114

A final question on this. Let us assume that by one means or another we manage to eradicate discrimination by employers and that part of the gender pay gap goes tomorrow—we have a magic wand. How much of it would be left? Are we looking at a very small proportion of the problem here, with the other factors that contribute to the gender pay gap being much greater? Or is this by far the biggest thing and will only a small amount of it be left to address—all the other issues which Baroness Gould was talking about?

Katherine Rake: Discrimination is a tricky thing. It is quite difficult to observe directly, and as a former academic I know that it is difficult to register and measure directly. However, when people have decomposed the gender pay gap to look at the different elements that contribute to it, discrimination is the largest factor of all, the remaining factor. Having said that, there is an awful lot of penalty attached to working part time, to motherhood, to discontinuous labour market records, all of which are more familiar to women. But my belief is that if organisations get good at addressing pay discrimination, they also get good at diversity more generally, and promoting equality for women.

Where we see good practice in private sector organisations, for example, they tend not only to have pay auditing systems—very successful ones—but they also tend to promote more women into senior positions, have good flexible working policies, and have maternity and paternity provisions above and beyond the statutory minimum. They do that because they know that it delivers to them. In an economy that is dependent upon human resources, it delivers the bottom line to them because if they lose the skills of 52 per cent. of the population, they will not be effective organisations. I think that good practice on pay will feed through and make organisations wake up to a whole series of issues that they have elsewhere. There will be all sorts of positive benefits from addressing discrimination.

Joyce Gould: Again, I do not have a disagreement with that. I only make a couple of additional points. First, if we did this—taking the points that Katherine raised—we would be using women’s skills far more effectively, which would only be of benefit to the economy overall. Also, the removal of the pay gap would make women more economically sound, which would benefit the economy. It is a much wider agenda than just the pay gap—the consequences are much wider.

Emma Stewart: I support that, too. Under-utilising women’s skills has been proven to be a huge loss to the economy. It is also a huge cost to the economy in terms of the cost of child poverty to the Exchequer. There are definitely wider social implications in being able to address this. I have two thoughts on the gender pay gap  no longer existing. One is that we would still need to ensure that there is sufficient volume of opportunity in terms of flexible work for new women entering the labour market. We know that there is a huge dearth of that at the moment. Addressing that through the gender pay gap within individual organisations will go part-way, but we need persistently to ensure that increasing opportunities exist.

Secondly, looking at flexible working practices for both fathers and mothers is an essential ingredient in this to ensure that we are looking at a change in work force culture going forward, which will enable both men and women with caring responsibilities to balance work and home life.

Q 115

May I pick up on this exchange first and ask one question about that, and one on another issue? I will ask Emma first and others may contribute. The question of access to employment seems quite important—particularly for women who may wish to work part time, or return to work part time. On Second Reading I referred to an article in Whitehall and Westminster World which talked specifically about the record of the civil service in making jobs available part time and advertising them as such. Could you tell us from your experience whether that is changing culturally and whether it is a problem concentrated in the public service, or is it also part of a systemic problem throughout the employment of women?

Emma Stewart: Being an organisation working with 2,000 employers in London, our experience is that it is starting to change. We are certainly seeing the impact of the recession changing a large number of employers’ perceptions about part time.

Q 116

So that is a positive as well as a negative?

Emma Stewart: That is a positive that we think needs to be promoted by highlighting the business benefits and efficiency gains that can currently be had in terms of part time, while moving forward to create sustainable quality part-time jobs with progression that will remain above and beyond the recession for women returners.

We are seeing a shift among SMEs, certainly in London, when the right messages are put across and the right access to support is given, towards a recognition that part-time work can be of value, and we know that there is a lot of good practice in the public sector. The challenge is to ensure that new jobs are created on a part-time and flexible basis, not that jobs are negotiated once women are looking to return to an existing employer.

Q 117

Are there any other contributions?

Joyce Gould: What Emma says is absolutely right. There is evidence that employers who are taking on flexible working are benefiting from it. They are finding greater efficiency and less absenteeism, and all the evidence suggests that they are definitely now in favour and supportive of promoting flexible working. That will be a benefit.

Katherine Rake: I want to make one quick comment about legislative measures that might enable change to happen. Currently, you have the right to request flexible working but only after you have been in employment for a certain period of time, so the entry point is critical. If  you have decided to change career after a break for looking after kids or, indeed, elderly relatives, it is very difficult to negotiate at that point. We think that day one rights to request part-time work would be a significant step.

The other legislative change, which would feed into broader cultural change, is extending rights to everybody, not just to parents. One of the problems is in the terminology. “Part-time” is a diminutive. It is compared with the norm, which is full-time. All of this dates from the industrial revolution and the male-dominated, male-designed workplace which, frankly, is totally anachronistic now. We all contribute in different ways, virtually as well as physically in the office, and do different hours. We need to get away from the notion that there is the normal way of working, which is full-time, and then there is the rest, which is part-time. Making the right to request flexible working available to all would be part of a culture change.

Q 118

Thank you. My second question is a bit more of a structural one. It struck me when I read the Bill that the attempt is to bring together all the concepts of equality in one single process, in one single house. In the interests of legal clarity and better enforceability, I have no difficulty with that.

The one anomaly, which the Fawcett Society dealt with in response to the Green Paper, is the continuing inconsistency between the provisions of the Equal Pay Act and the Sex Discrimination Act. I want to unpack that a bit for the Committee. Is your concern about what might be termed the legal tidy-mindedness of the Bill, in the sense that it would be better to have a one-stop shop for everything—it is all expressed in one Bill but in different provisions? Is there a formal objection?

The second possibility is that there are effects on what might be termed the litigation enforcement role in relation to discrimination; that is, you can have a different regime for pay and there can be breaches there, and for advertising and employment law, which could be a separate issue. Thirdly, is there a material issue about what actually happens in the delivery of gender pay equality?

If I could just add a loop to that, to complicate it further, I know that the Fawcett Society has gone on about the equal treatment amendment directive, which deals with having no comparator, or a hypothetical comparator. Could you unpack some of those issues? If we are to do a once-in-a-lifetime job, ought we to be doing more than we are, and, if so, how do we do it?

Katherine Rake: The Fawcett Society always asks for more, of course, because we are very impatient with the rate of change in achieving gender equality in respect of this issue and others, but you put your finger on an important point. There has always been a dual track in legislation with the 1970 and 1975 Acts. Obviously, tearing up the Equal Pay Act is a very tricky thing to do politically, especially a year in advance of its anniversary—

Q 119

If I might interpose for a moment, I think that one of the arguments is that, because an implied contract is built in, it gives greater protection.

Katherine Rake: Yes, it does on some levels, but that is not to say that you could not write broader legislation that would maintain the protection but do away with  the contractual basis. We have long argued for the need to look radically at this legislation. Indeed, the whole tone of equalities legislation is beginning to change favourably, which is very welcome. We strongly welcome the new gender duty—the duty on public bodies actively to promote equality—and we have argued for an extension of that into private organisations.

That is part of our argument about the Equal Pay Act. It was designed for its time, and its life has very much come to an end. Inconsistencies remain regarding the need for a real comparator in equal pay cases, for example, and, as I understand it, regarding the current recommendations on employment tribunals, which are able to make binding recommendations on all other cases, but not in equal pay cases. That now seems totally nonsensical, and one thing that we need to do in this and subsequent legislation is to make sure that the strong contractual protection that is offered in the Equal Pay Act is maintained, but that we do not persist with these anomalies that weaken the cases that come through the courts. We need better cure when they come through court, but we also need to mirror the positive approach to equality that has happened with the gender duty, and to make sure that that is in the provisions on equal pay. That is why we argue that organisations need to prevent pay discrimination from happening in the first place by using mechanisms such as audit, which would be a preventive measure.

Joyce Gould: The Bill as a whole is, almost by default, going to raise women’s living standards overall. If you take each part of the Bill and put them together as a package, I think that is what you achieve and that is its real value. In terms of some of the specifics, Katherine mentioned the gender duty that we currently have, and the Women’s National Commission supports the new equality duty, but we are concerned. We will continue to argue that, when that is looked at, which will be in terms of sector, not strands, the gender duty concept is not lost, because it is terribly important that gender goes across every strand.

Q 120

Do you think there is a danger of that?

Joyce Gould: I hope not, but we do not know. There will be consultation, and, obviously we will play our part by putting our evidence into the consultation. In fact, we make sure that we maintain a very strong gender element, because, as I say, it covers every strand of the areas we are talking about; in every issue, women are involved. For us, that is terribly important. I see the Bill like that, rather than as something where I can pick out the differences in terms of equal pay and sex discrimination. Of course, there are anomalies, which I am hoping that the Bill will sort out, rather than the anomalies continuing to exist.

On the specifics, on equal pay, society has changed from when the Equal Pay Act came in. We have a different employment environment out there, and we therefore need different legislation to counter that.

Emma Stewart: I do not have much to contribute above and beyond what my colleagues have said. Legislation is not necessarily a core focus of our organisation, so I will leave that to my colleagues. In answer to your question on what more the Bill could do, we advocate assessing the 250 benchmark of the number of employees that an organisation has to have in order to be open for  an equal pay audit. We advocate looking to reduce that number, because our understanding is that organisations that have 100-plus employees often have a dedicated HR resource and therefore should potentially be able to contribute their experience of auditing. If you do not consider that, I think you are looking at missing out a huge proportion of businesses in the UK, because we know that half the people in the UK are employed in business with under 250 staff.

Q 121

I want to continue the point about comparators. You all seemed quite optimistic, but perhaps I am more pessimistic. Having been in Glasgow city council for a number of years, I found that eventually the women home-help workers got to compare themselves with the men city builders in building services, which was good because it brought up the women. The council’s problem was that it was competing with the private sector, which was not operating under the same bounds. So, you had one company employing men for building at a higher rate and another company employing women at a lower rate for home helps. The council ends up in an impossible position. Its answer has been to chop itself into bits so that it can get round the equal pay rules in the longer term. I just wonder about this. It is all built on having a colleague. If organisations or employers are able to split colleagues off from each other, does that make all of this useless?

Katherine Rake: The issue of contracted-out services and the splitting of particular services that used to be within public sector boundaries but now are run by smaller private organisations is massively important. That is why the issue around hypothetical comparators becomes so pressing—you will not have an actual colleague to compare yourself with. So, if there is a traditional and historical under-evaluation of women’s work, and it is a public function that is being done by another organisation, that organisation should still have a responsibility under the gender duty to promote equality and to eliminate pay discrimination. Unless you get rid of the provision that says that you have to have an actual comparator, you disable that process. That is why it is so critical in the complex world of contracted-out services to ensure that we get rid of the anomaly that hampers those equal pay cases being taken. Your argument is very well made, and it supports even more the need for hypothetical comparators within equal pay cases.

Joyce Gould: Equal pay is the only area of discrimination laws where claimants are not allowed to have a hypothetical comparator. We are talking about the Equal Pay Act, and the Sex Discrimination Act is a classic example of the incompatibility between the two Acts. We feel that because of occupational segregation, if women are to be able to make that challenge, we have to have hypothetical comparators. I think—and Emma may agree—that it is particularly important for part-time workers because who, in reality, are they going to compare themselves with? The only way in which they will be able to make a comparison is if they have some criteria from hypothetical comparators. Therefore, there is a very strong case for them. My understanding is—and I stand corrected if this is wrong—that they are permissible under European law.

Emma Stewart: I agree. It is essential that those comparators are explored in further detail. With this issue, the devil will be in the detail of how to determine  the comparisons. Certainly in relation to part-time, and to women coming back into employment, having been in full-time and then looking to renegotiate to part-time, we experienced an issue in relation to pro rata. Part-time is not necessarily fully pro rata to the full-time equivalent job that may well be done by another member of staff within that organisation. Explicitly there, we need to be clear that if part-time is properly pro rata, it means pound for pound.

Q 122

Thank you. My second point concerns the public sector equality duty where we are asking public authorities to take on board all the protective characteristics. Is that helpful to yourselves and the issue that you are talking about, or is it less relevant?

Katherine Rake: The single duty needs to make sure that it protects the characteristics of the existing duties in terms of the specifics that are under the gender duty—that will definitely need to be carried over into the single duty. Legislatively, there is no problem in having a single duty. I think that it makes it much clearer for those organisations. Our concerns come much more from on-the-ground practice of those bodies that are bound by the duty. We have certainly had evidence from our work in the criminal justice system, as elsewhere, that there is a fundamental misunderstanding of what the duty means. A lot of organisations think that the gender duty obliges them to treat women and men equally and provide exactly the same services, when in fact the obligation is to produce circumstances in which you can produce equality, so that you would have different treatment in order to get to the same outcome. There is a big process of education and sharing of best practice that needs to happen among those agencies that are bound by the duties, which is not happening at the moment.

The Equality and Human Rights Commission clearly needs to play a much more active role, both in identifying where there is not compliance with the existing duties, which unfortunately affects Whitehall, as it does our local authorities, but also much more positively to make sure that organisations learn from each other as to what the duties should be in practice. I do not think we have any problem with the legislative framework. The problem is on the ground, and people’s misunderstanding that this is about men and women being treated the same, when actually it is about different treatment in order to get the same outcome. That argument has not necessarily been understood.

Joyce Gould: Absolutely. We believe that it is the right direction to go, but as I said before, we have to be absolutely clear that we do not lose anything that we currently have with the gender duty. I do not think that has been examined in the way that it should have been—to find out what has actually happened on the ground—and we are trying to negotiate with the EHRC to do some work for the Women’s National Commission on what has happened in terms of gender equality on the grounds of how much it has been complied with, how much awareness there is and so on. I think that will be very helpful when we get the public sector equality duty in helping to provide proper guidance and proper awareness measures of what is expected of the public services when that happens.

I also think that, as part of that, there has to be transparency in the way the duty is going to work so that people can see it working, in the way that they do not see the gender duty working, except in some areas. That is important.

One of the consequences of the gender duty—Katherine touched on it—is that somehow there is the feeling that single-sex activities are no longer relevant. If there is anything that I would have liked to see in the Bill, it would have been a bit more strength and emphasis on giving support to single-sex establishments such as Rape Crisis to make sure that they do not get closed down, because there is the feeling that somehow we are into a generic society and therefore the individual organisations do not matter.

Having said that about the gender duty, the concept, where it is working, is extremely good and we absolutely support it. When the Government gave their evidence to the Committee on the Elimination of Discrimination Against Women, which they have to do every four years, this was one of the key points that they made. The panel at the United Nations was extremely favourable towards the actions the Government have taken and said that it is a world-class model that they would actually use and advertise for other countries to use. We have got a basis there. We have to make sure that it works well.

Emma Stewart: I endorse those points. I welcome the fact that it is a very clear and simple way of bringing together a number of measures. The key will be how to promote best practice and how to unpack that for a large number of public sector organisations so that they understand what they can do in practice to implement this, and how then to measure those opportunities that are put to them.

For instance, looking at flexible working practices, a large number of public sector employers have highlighted the fact that they offer flexible working practices but the take-up within those organisations needs to be clearly monitored.

In relation to the socio-economic duty of public sector organisations, in London we have seen some good examples of that working in practice and those initiatives need to be better promoted. We know that with some of the local authorities that we work with in Haringey there is an emphasis on tackling child poverty, specifically in relation to tackling inequality for women. There are initiatives looking at providing services in PCTs and GP surgeries for women who face both health inequality and poverty to be able to access welfare rights services. Very practical initiatives, which I think can be promoted, are very valuable.

Two more hon. Members have caught my eye. Bearing it in mind that we have to keep an eye on the clock, perhaps answers can be slightly shorter so that they can both get in.

Q 123

Having worked for Women’s Aid for many years, I am aware that, under the Sex Discrimination Act 1975, there was an exemption in relation to employing only women. Baroness Gould, are you suggesting that that is in question under the new Bill? Would it be put at risk?

Joyce Gould: There are provisions about single-sex activity in respect of education and employment, and I would like to see them extended to the much more  necessary community-based activities. It cannot be along the lines of, “We’ve been told that we have to operate generic fund-raising and so on, so we are terribly sorry but money for your Rape Crisis or women’s centre is no longer available.”

Local authorities are using that argument and closing down such centres at a substantial rate, although, to be fair, I have to say that more money has gone into Rape Crisis, which has helped it in particular. However, it has not changed the concept of local authorities and how they perceive single-sex organisations, which I think are terribly important.

I have concentrated on women because that is what we do in the Women’s National Commission, but a number of men are asking for men-only organisations, particularly health-type organisations, and they have not been able to get funding for them. That is something we should look at a little more.

Q 124

Will you expand a bit on the idea of representative actions? What benefits could that bring, for example, to the recent single-status negotiations of local authorities? Many women found it difficult, especially if they were not represented by their trade union. Would such action have helped in that situation, for example?

Katherine Rake: Yes, certainly. It allows two things. First, other organisations might take a case on behalf of the women if they were not able to take a case themselves. It also allows women to stand together much more effectively so that if the matter was not unionised, a group of women could come together and either represent themselves or be represented by an external body. If such a provision were included, it could be incredibly powerful.

Joyce Gould: As I understand it, some work has already been looked at to see whether representative action could now be built in for some low-level cases. That would be very helpful.

Q 125

Not long ago, Nicola Brewer of the Equality and Human Rights Commission said that employers were rejecting women and not even inviting them to interviews because of maternity benefits. It is a sort of discrimination before people even get to work. For all the reasons that we have just discussed about women having a hard time in work, they are having a hard time getting into work. Do you think that there is any room in the Bill for measures that would reduce pre-work barriers?

Katherine Rake: One of the things in the Bill that we are concerned about is the fact that it is a step back in pregnancy discrimination. Under the Sex Discrimination Act 1975, there is simply a provision to ensure that pregnant women are not treated less favourably than anyone else, but according to the Bill there is a reference to being treated less favourably than is reasonable. We are strongly advocating that the “than is reasonable” provision be removed because it is in contravention of European Community directives and the Sex Discrimination Act. We hope that that is a drafting error, rather than a deliberate act.

More needs to be done to provide some basic leadership on the issue, so we have written in association with a number of colleagues across the voluntary sector to ask  Peter Mandelson to remind employers at this time that it is illegal, and has been for many years, to discriminate against a woman because she is pregnant or likely to become pregnant. Employers need to be reminded in difficult times that they have to abide by basic employment law, so there is some leadership, along with that provision.

If that “reasonable” clause is removed, we will have some strong legislative protection against pregnancy and maternity-related discrimination. The problem is a cultural one really, which is where Government leadership is so critical in reminding people of the loss of skills and the loss to the economy that would happen if we did not offer pregnant women and those on maternity leave proper protection.

Clearly, you cannot dissociate women’s rights in employment from mothers’ rights in employment—most women at some point become mothers. Even those who do not become mothers tend to be grouped in the same bracket—

It is discrimination against young women.

Katherine Rake: Exactly. It is basically discrimination against women, so it is important that the Government send a strong signal, both that they will remove the reasonableness test that appears to have crept in and that they will not, culturally, tolerate that sort of discrimination, even in difficult times.

Joyce Gould: Briefly, the Women’s National Commission has also discussed the question particularly about pregnancy—people not being employed because they are pregnant or might be pregnant, which is quite intolerable and not to be accepted. I am delighted that people are writing to the Minister to say that it is not something that should happen.

On the question of the “reasonable” clause, the Women’s National Commission held a roundtable—last week, I think—when the issue was raised. Obviously, we shall be asking the Government to look again at “reasonable”.

Emma Stewart: I add more positive messages to highlight the loss to business of an untapped talent pool that otherwise could be utilised and contribute hugely to the economy. That is clearly something for positive measures and initiatives outside the Bill that we would endorse.

No other questions? I am so pleased that I have not had to cut anyone off in their prime.

Ordered, That further consideration be now adjourned. —(Barbara Keeley.)

Adjourned till Tuesday 9 June at half-past Ten o’clock.