Exclusion of sex discrimination provisions

Question proposed, That the clause stand part of the Bill.

Forgive me, Mr. Benton, but are we not on amendment 258?

The Question is that clause 65 stand part of the Bill.

On a point of order, Mr. Benton. May I apologise? The reason for the confusion is that we tabled an amendment to leave out the clause, but that is not printed on the list. My hon. Friend’s intention is to speak briefly to clause stand part, because there is an argument to leave it out, if that would be acceptable—despite the double attempt to move that proposal.

One grows used to such things. To clarify, amendment 258 was not selected and therefore cannot be moved. However, I will allow a discussion on clause 65 stand part.

Thank you, Mr. Benton, you are very kind. I thank the Committee for its patience.

The threshold for bringing an equal pay case is higher than for direct discrimination—it is more difficult to bring a case. That is because a person must find a real comparator against which they can show that they are being discriminated against, which is not always possible, and a person who discriminates can use the material factor defence where one exists. Neither of those hurdles applies in direct discrimination cases.

Being paid differently because of gender is clearly a detriment. Rather than impose a higher threshold to be able to take a case to end pay discrimination, the Bill should make it easier to take action. The scale of pay discrimination against women should make us favour concrete measures that make ending such discrimination easier. Removing the clause would enhance protection for people who face pay discrimination because of their gender. Where they cannot find a real comparator, or the discriminator finds a spurious material factor defence, the door would still be open to take a direct discrimination case. On that basis, I wanted to argue against the clause.

I do not know whether the hon. Lady seeks to remove the clause on the basis that it would change the existing law. The short answer is that it would not. That is our firm conviction, and I am happy to explain why. I do not wish to put her in a hot spot, but if she thought that the clause would change existing law, I can explain why it would not outside the Committee if that is quicker.

It is not our suggestion that the clause would change the existing law. We contend that the existing law has not worked. The fact that one has to go through this route to make the claim is one of the many reasons why it has not worked, and we know that the Government share our concern.

Then I will set out how we think the provisions work. The sex discrimination provisions of the Bill do not apply where the equality clause or rule provisions operate. It is right to ensure that a remedy for a particular wrong is a single specified remedy rather than a matter of choice from a menu, and that is what the clause achieves. We have already discussed our general approach to equal pay in the Bill. Essentially, equal pay is contract-based, achieved by modifying or reading in a term of an employee’s contract of employment to ensure equality with a colleague of the opposite sex doing equal work. We have maintained that position in the equality clause provisions of the Bill.

In “A Framework for Fairness”, we consulted on whether to maintain that contractual approach, and a significant majority of respondents favoured it, although I recognise that some take a contrary view. We have tried to adjust the relationship between equal pay and the discrimination provisions to ensure that there is no gap by allowing claims of direct discrimination in respect of contractual pay. I think that I said that in a previous debate as well. As we have already discussed, we believe that doing away with the separate contractual approach could lead to considerable uncertainty and confusion.

The sex discrimination provisions listed in the table apply only to non-contractual pay and benefits such as promotion, transfer and training and to offers of employment or appointment to office, except as provided  by clause 66 in respect of direct discrimination. For example, if a company offers more training or promotion opportunities to men because it believes they will stay longer than women, a claim of sex discrimination by the women would come under the sex discrimination provisions. If it is not clear—this might be what is concerning the hon. Lady—whether a particular claim relates to benefits that are contractual or non-contractual, it can be made, as is currently the case, under both provisions, and the tribunal will, to put it in technical language, sort it out.

The clause also maintains the distinction between the provisions for equality in terms of occupational pension schemes and the provisions that prohibit sex discrimination in giving access to such a scheme. It is worth pointing out that where a woman cannot identify a comparator doing equal work and wants to make a claim involving contract terms not relating to pay, such as promotion, the sex discrimination provisions will apply to such a claim. Again, the position is the same as before. I understand the change that the hon. Lady seeks, but the Government see the clause as an essential aspect of the functioning of the Bill. I hope that the Committee will therefore agree that it should stand part of the Bill.

It is extremely helpful to have such a cogent explanation of what the clause does and does not do, and what the law would probably say and not say in interpreting it in future, so I thank the Minister.

Question put and agreed to.

Clause 65 accordingly ordered to stand part of the Bill.

Clauses 66 to 71 ordered to stand part of the Bill.