PART II SECTION 4(1) TO (9) OF CONTRACTS OF EMPLOYMENT ACT 1963 AS AMENDED (Hansard, 13 May 1971)

HL Deb 13 May 1971 vol 318 cc1380-519 1380

§ [In the provisions set out in this Part of this Schedule the words inserted by the Bill are printed in heavy type]

§ 4. —(1) Not later than thirteen weeks after the beginning of an employee's period of employment with an employer, the employer shall give to the employee a written statement identifying the parties, specifying the date when the employment began, and giving the 1381 following particulars of the terms of employment as at a specified date not more than one week before the statement is given, that is—

(a) the scale or rate of remuneration, or the method of calculating remuneration,
(b) the intervals at which remuneration is paid (that is, whether weekly or monthly or by some other period),
(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),
(d) any terms and conditions relating to—

(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),
(ii) incapacity for work due to sickness or injury, including any provisions for sick pay,
(iii) pensions and pension schemes, and

(e) the length of notice which the employee is obliged to give and entitled to receive to determine his contract of employment:

§ Provided that paragraph (d)(iii) of this subsection shall not apply to the employees of any body or authority if the employee's pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under an Act of Parliament and the body or authority are required by any such provision to give to new employees information concerning their pension rights, or concerning the determination of questions affecting their pension rights.

§ (2) If there are no particulars to be entered under any of the heads of paragraph (d), or under any of the other provisions of the last foregoing subsection, that fact shall be stated.

§ (3) If the contract is for a fixed terms, the date when the contract expires shall be stated.

§ (4) If after the date to which the statement relates there is a change in the terms to be included, or referred to, in the statement. the employer shall, not more than one month after the change, inform the employee of the nature of the change by a written statement and, if he does not leave a copy of the statement with the employee, shall preserve the statement and ensure that the employee has reasonable opportunities of reading it in the course of his employment, or that it is made reasonably accessible to him in some other way.

§ (5) A statement under subsection (1) or subsection (4) of this section may, for all or any of the particulars to be given by the statement, refer the employee to some document which the employee has reasonable opportunities of reading in the course of his employment, or which is made reasonably accessible to him in some other way.

§ (6) If the employer in referring in the statement to any such document indicates to the employee that future changes in the terms the particulars of which are given in the document will be entered up in the document 1382 (or recorded by some other means for the information of persons referring to the document) the employer need not under subsection (4) of this section inform the employee of any such change which is duly entered up or recorded not more than one month after the change is made.

§ (7) If, not more than six months after the termination of an employee's period of employment, a further period of employment is begun with the same employer, and the terms of employment are the same, no statement need be given under subsection (1) of this section in respect of the second period of employment, but without prejudice to the operation of subsection (4) of this section if there is a change in the terms of employment.

§ (7A) In subsections (4) to (6) of this section any reference to that which is, or is to be, included, given or referred to in a statement under subsection (1) of this section shall be construed as including a reference to the note mentioned in section 18(2) of the Industrial Relations Act 1971, and any reference to that which is, or is to be, included, given or referred to in a statement under subsection (4) of this section shall be construed in a corresponding way.

§ (8) The foregoing provisions of this section shall not apply to an employee if and so long as the conditions specified in the next following subsection are fulfilled in relation to him. (8A) Those conditions are that—

(a) the employee's contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsection (1) of this section, and under each head of paragraph (d) of that subsection;
(b) there has been given to the employee a copy of the contract (with any variations made from time to time), or he has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way; and
(c) such a note as is mentioned in section 18(2) of the Industrial Relations Act 1971 has been given to the employee or he ha s reasonable opportunities of reading such a note in the course of his employment or such a note is made reasonably accessible to him in some other way.

(8B) If at any time after the beginning of an employee's period of employment he ceases to come within the exception in subsection (8) of this section, the employer shall give the employee a written statement under subsection (1) of this section not more than one month after that time.

§ (9) No account shall be taken under this section of employment during any period when the hours of employment are normally less than twenty-one hours weekly, and this section shall apply to an employee who at any time comes or ceases to come within the exception in this subsection as if a period of employment terminated or began at that time.") —(Earl Jellicoe.)

1383

§ LORD DIAMOND
I have only one question to ask and that is merely whether the Government have this right. No doubt they have, but I am not absolutely sure. This Amendment seems to come at the end of line 10. Line 10 is the interpretation clause. So Part II is coming after the interpretation clause. Does that mean that the interpretation clause is not meant to apply to Part I and Part II? I should have thought, without being fully informed about it, that the Government were intending to put Part II at the end of line 7; that is to say, to enable the interpretation clause to apply to Part II as well as to Part I. Is there any subtle point I have not noticed?

§ THE LORD CHANCELLOR
If the noble Lord has this point I think we shall have to consider it with the draftsman. I think it is all right as it stands. It is simply in effect to reprint with the relevant sections of the Act as they will be after amendment, so there is no substance in it. But if the noble Lord wishes to push the point as to whether it ought to he inserted at line 7 or line 10, I shall have to discuss that with the draftsman.

§ LORD DIAMOND
I am not pushing anything; I am only saying to the Government that it would seem to me that it would be easier and more normal if the interpretation clause were at the end rather than in the middle.

§ THE LORD CHANCELLOR
I cannot see that it makes any difference.

§ LORD DIAMOND
I am suggesting that when we come to Clause 158, which is at the end we stick it in the middle, so that anybody who thinks that he can find his way round the Industrial Relations Bill will be mistaken; he will not know where to look for the meaning of anything at all, whereas one usually goes straight Ito the end 'to look for the interpretation clause, either of a Section or of the whole Bill. It is very good reading, good for the mind; it clears the mind enormously, and is one of the best bedside topics I have read for a long time.

§ THE LORD CHANCELLOR
I think we should get it right. I think the draftsman is right rather than the noble Lord. I think we should discuss it with the draftsman. It is possible the draftsman is right, and I think he is.

1384

THE EARL OF BALFOUR
May I raise one point on Schedule 2? I should like your Lordships to look at paragraph 1(1)(a). This paragraph does not appear to me quite to make sense. In particular, I feel that the word "employer" in line 11 really is a printing error and that it should be "employment". If I may explain a little further: although the employer has changed, the employment has not. If I may read the last part of paragraph 1(1)(a): …but without any chance in the identity of the employer … I am quite sure it does not mean employer because the employer has changed; he has gone.

§ THE LORD CHANCELLOR
I am afraid it does mean employer.

THE EARL OF BALFOUR
It did not seem to make sense to me.

§ THE LORD CHANCELLOR
The employer can change his name without changing his identity. I think my noble friend will see "Change of name or identity of employer" at the top of Part I and then at line 11 he can change his name without changing his identity. If I am wrong, I will let my noble friend know, but I think he is mistaken and that the words mean exactly what they say.

THE EARL OF BALFOUR
I am sorry to have delayed the Committee, and I thank my noble and learned friend.

§ Schedule 2, as amended, agreed to.

§ Clause 20 [Right of employee not to be unfairly dismissed]:

§ LORD WELLS-PESTELLmoved Amendment No. 202. Page 15, line 26, leave out ("an unfair industrial practice") and insert ("unlawful").

§ The noble Lord said: I rise to move the Amendment standing in the name of my noble friend, Lord Delacourt-Smith. Your Lordships will note that this particular clause deals with unfair dismissal, and, if I may say so with respect, it does seem to me to be inappropriate that in line 36 the phrase "unfair industrial practice" should be mentioned. It refers to unfair dismissal 1385 as an unfair industrial practice, whereas in fact I would have thought that the purpose of this particular clause, dealing as it does with unfair dismissal, was to point out that that in itself is an unlawful action. If this is so, I would suggest that the words in the clause are unsuitable. If an employer is behaving in an unlawful manner, surely that is in itself an unlawful action, and if that is what the clause means then I think we ought to say so—that an unfair dismissal is an unlawful action. Therefore we should use the word "unlawful" in place of the words "unfair industrial practice". I am sure in my own mind that this is what is really meant; if that is so, I think we should say so in very clear and precise terms. I hope it is clear to noble Lords on the other side, and I hope noble Lords on the Government Benches would feel able to accept this Amendment. In the interests of accuracy, and certainly of simplicity, it would be much better to use the word "unlawful" than the ones we find in the clause. I beg to move.

§ LORD DIAMOND
To clarify the matter, could I say that this must be a misprint for "line 36"?

§ THE LORD CHANCELLOR
Yes. I had already pointed it out to my noble friend.

EARL JELLICOE
I am grateful to the noble Lord. I am clear as to what he is after, and I am also clear as to where we are in the Bill: that we are in line 36 and not 26. May I say straight away that I do not think I can advise your Lordships to accept the noble Lord's Amendment and that is because of its effect? It is quite clear to me that whatever the noble Lord's intention and whatever the intention behind his Amendment, the effect quite clearly would be to bring complaints of unfair dismissal to the ordinary courts instead of to the industrial tribunals and to the National Industrial Relations Court. I could expand on why I do not think this would be right, but that would in fact be the effect of this Amendment. I am certain it would be a grievous error if we were to do this, and for that reason alone I do not feel I can advise your Lordships to accept this Amendment.

§ LORD DIAMOND
I am not sure that that is a satisfactory answer. Would the 1386 noble Earl tell me the present position? If a proposal is against the law, it is normally deemed to be unlawful, and the courts are available to grant relief, if relief is needed. Is there any need to introduce unfair industrial practice concepts or new machinery under which unfair industrial practice concepts can be tested? If this is a perfectly straightforward concept, why do we need to do anything more? Could the noble Lord help me by saying what the present situation is?

§ 1.2 a.m.

§ THE LORD CHANCELLOR
I wonder whether I could try to help, although it is a little difficult to put into very few words. There are three different types of right which the employee can have under this Bill, if passed. The first is his right of action in the ordinary courts in respect of the breach of a term of his contract of employment: there is an action for breach of contract. The simplest case would be if he were dismissed unlawfully without notice. An employee could be told to go: he has done nothing wrong and he is entitled to three months' notice, but he is not paid money in lieu of notice. In the ordinary courts, subject to Clause 108 of this Bill—which I will not refer to at this stage because I may have to refer to it later—this is a perfectly simple action in the county court or, if a sufficiently large sum of money is involved, in the High Court. At the other end of the scale there is the entitlement to redundancy payments; and such a case does not go to the ordinary courts but to the industrial tribunals already set up under previous legislation. So there are already two sets of tribunals to which he can go.
This Bill sets up a totally new concept of unfair dismissal. This is not unlawful in the ordinary sense, because it is not a breach of his contract of employment; but the Bill contains throughout its length a concept called "an unfair industrial practice"—namely, one which is not unlawful under ordinary law but is contrary in one way or another to the code which would be set up by this Bill. This is one of the most important concepts in this Bill. Sometimes it concerns an act by an employer; sometimes one by an individual; sometimes one by an employers' association and sometimes one by a trade union. Broadly speaking, if it is one by 1387 an organisation it is cognisable by the N.I.R.C.: if it is a wrongful act by or against an individual then it goes before the industrial tribunal. It is fundamental to the philosophy of this Bill that unfair industrial practices are not tried by the ordinary courts. I myself, in many ways, should have liked to see them tried in the ordinary courts, but the advice we have received throughout—and this has not so far been disputed by the Opposition—is that trade unions do not very much like courts.
Both the Industrial Court in respect of one class of industrial practice, and the industrial tribunal in respect of this class, consist of at least three persons and not a judge alone, and at least two laymen as well as a lawyer. Two of the laymen in the case of the industrial tribunal are people who have particular experience of industry and are therefore well able to discuss matters of this kind. Incidentally, the industrial tribunal has expertise already, because in the course of its ordinary business for several years it has been dealing with the Contracts of Employment Act and with the Redundancy Act. Therefore there are immense advantages in putting this particular concept before the industrial tribunal when an individual complains of an unfair dismissal which is an unfair industrial practice.
Incidentally, if noble Lords opposite are sincere—as I have no doubt they are—in their demand for an informal procedure, for the absence of complicated pleadings and, in suitable cases, the absence of lawyers to represent parties and the not too strict adherence to the formal rules of evidence (although, of course, the ordinary rules of procedure and justice have to be observed) then the advantages of the industrial tribunal are quite outstanding, and the advantages of an informal and rapid hearing will be preponderant. So much so that when we come to look at Clause 108 it will be seen that when a claim for unfair dismissal is brought at the same time as a claim for wrongful dismissal in the old sense—and, incidentally, it can be brought at the same time as a claim for redundancy payments in the alternative—there is an immense advantage in bringing them all before the same tribunal, and this tribunal is specially designed for the purpose.
1388 The words "unfair industrial practice" are neither here nor there. They are essential to the drafting of the Bill because this is the form of words which attracts the new network of courts rather than the existing and ordinary network of courts. Therefore it is essential, but there is no magic in it, except that it is the formula which is used to attract the new network of the courts under the language of the Bill. There is an immense advantage in it. The word "unlawful" in itself, if I may say so with the utmost respect to the noble Lord who moved the Amendment, is really an almost meaningless concept unless you know whether it is unlawful because it is a crime, because it is a breach of contract, because it is a tort or because it is a breach of statutory duty. This states quite clearly that it is an unfair industrial practice, with all the consequences of that. I hope, with this explanation, that the noble Lord will feel that I have done justice to his Amendment.

§ LORD BROWN
I wonder whether I may help by briefly reciting from past experience. I remember on four occasions, when seeking to defend persons I knew from what I regarded as unfair dismissal, that I led them to counsel, and in each case I was dismayed to find that counsel said, "Well your chances of winning a case before the ordinary court are almost non-existent because of the state of the law with regard to dismissal in industry". I believe the normal state of the law about these dismissal cases is so vague that I would welcome the terms in which this Bill deals with unfair dismissal.

§ LORD BERNSTEIN
Would the noble and learned Lord the Lord Chancellor tell me whether it is the word "unlawful" that he is objecting to? Would he accept another word in place of "unlawful"?

§ THE LORD CHANCELLOR
No. I made it very plain indeed that I am objecting to interference with the rather precise technical language of this Bill, which attracts to the new concept of unfair dismissal—which is different from that of unlawful dismissal—the new network of courts (I call them courts, but tribunals is a more precise term) which is precisely designed to deal with the particular case.
1389 This is to interfere with the structure of the Bill and, I think, with the convenience of both the employer and the employed who wish to have an informal hearing before the industrial tribunal.

§ LORD DAVIES OF LEEK
It is not quite so easy as that. For the trade unionist to think that he has a fair deal, and that the right of the employee not to be unfairly dismissed is simple and easy, is completely wrong, if we compare what an unfair practice is with paragraph 122, because here in Clause 22 there is a whole list, and an employer can sack a militant shop steward or active trade unionist quite easily. As to his right of reinstatement, even if it is possible, he himself has to prove up to the hilt that the case against him is deliberate victimisation. Let me put it interrogatively rather than trying to be didactic. Is the layman not left in the position, before that tribunal, with no experience, that the onus of proof is upon him? So all this in this clause is mythology: that the workman is in an equal position with the trade unionist. To any of us who have had to do with industrial injuries or insurance over the last thirty years of history, this is a piece of mythology, and one only has to go to Clause 22 to see that. Now what could he argue about—

§ THE LORD CHANCELLOR
I do not wish to interrupt the noble Lord—

§ LORD DAVIES OF LEEK
Please do, if you disagree with me.

§ THE LORD CHANCELLOR
I think I disagree with everything the noble Lord has said so far, but that is not what I rose to say. The point is that it has nothing whatever to do with this Amendment. This House has Standing Orders, one of which is Standing Order No. 27, which obliges one to some degree of relevance. The only point in this Amendment is whether one uses the word "unlawful" with regard to Clause 22, and the practice which is condemned in it, or whether one uses the words, "unfair industrial practice". I am quite willing to deal with questions under Clause 22 when it becomes in order for me to do so, but it really is unfair to put a number of questions which have absolutely no relevance whatever to the Amendment under discussion.

1390

SEVERAL NOBLE LORDS
Hear, hear!

§ LORD DAVIES OF LEEK
All right; the Committee seems to be on the side of the noble and learned Lord Chancellor, and therefore I will accept that. But I hope we shall get the opportunity of dealing with that in greater depth at a relevant point because, no matter what phraseology is introduced, or what Amendments, the impact of the clause stands to be what I have said it will be.

§ LORD SHACKLETON
I was intending to thank the noble and learned Lord the Lord Chancellor for a very clear explanation, which enabled us to understand what the Government intended. Those of us who have had experience, as employers, of what is lawful and unlawful, and wrongful dismissal, are well aware that wrongful dismissal, which the general public very often feel can be applied to any act of injustice on the part of an employer, in fact cannot be so applied. Therefore, what the Government are seeking to do does approach a desirable end.
But I am hound to say, following the Lord Chancellor's last remarks in reply to my noble friend, that it is really impossible to discuss this sort of subject without seeing to what it applies. We really are in a difficulty. We have not the code. I assure the noble and learned Lord that I am not trying to prolong the debate. I have been refreshing my memory on some of the later clauses which deal with this. It clearly raises a particular issue, and it helps to clarify the difference between "unlawful" and "unfair industrial practice". Some of us are struggling to understand this Bill, and a number of noble Lords on the Government side also are struggling to understand it. We would all understand it very much better if we had the code. We would then know what it was all about. Certainly it was the intention to find out a little more. When one of my noble friends likes to add even a little more to his knowledge, I hope the noble and learned Lord will refrain from rebuking him.

§ THE LORD CHANCELLOR
I was not rebuking him at all, but I must say to the Committee that after some experience (equal almost to that of the noble Lord) in debates in this House, that one does not help the Committee by going 1391 off at a tangent and answering different points from those which are necessarily involved in the Amendment. There are plenty of other times when we can discuss the burden of proof, and I suspect the next Amendment but one will be one. One can only deal with one point at a time. I was asked to explain why the word "unlawful" is not acceptable, and why the words "an unfair industrial practice" are essential. I am sure that the Committee, even at this hour, would do well to abide by the ordinary Standing Orders of the House and stick to relevance and, no doubt, clarity.

§ LORD DAVIES OF LEEK
I like this very much indeed! I am talking about the phrase "unfair industrial practice". The noble and learned Lord would not accept "unlawful", but he accepts "unfair industrial practice". Then he has the audacity to say that I am being illogical because I talk about "unfair industrial practice". With all due respect, I think the noble and learned Lord is wrong, and radically wrong.

§ On Question, Amendment negatived.

§ 1.18 a.m.

§ LORD DIAMOND moved Amendment No. 203: Page 15, line 37, at end insert ("and in any proceedings arising from this or any subsequent section of this Act it shall be for the employer to prove that he had acted otherwise").

§ The noble Lord said: The purpose of this Amendment is to ascertain the position in the Bill with regard to the fundamentally important matter of the onus of proof in all these related matters. At the moment, I am advised that the onus of proof probably rests on the employee, and that Clause 102 lends considerable support to that proposition. If that is so, then we have not only a serious case, we have an impossible situation to deal with. It is going to be quite impossible for an employee, who has been subject to an unfair industrial practice in the sense that he has been unfairly dismissed by his employer, to establish his case because he has not got the records, he has not got the details; he has only got his recollection, which may be a disputed recollection, of what took place. The employer has all these records and all the necessary information, and is probably represented by somebody who is an ex- 1392 pert and well qualified in the kind of discussion that arises in this case where it is not done by letter, and will have taken a careful note, and so on.

§ In my view, it is a quite impossible situation, if I am right in understanding that the Bill puts the onus of proof on the employee. I may not be right, but I have said sufficient to make clear my anxieties. I should not wish to develop my case at full length, if the Government would say that I am wrong or that they will look at this to meet my anxieties about the employee having the onus of proof resting upon him in matters of this kind. I beg to move.

EARL JELLICOE
The noble Lord has asked whether the Bill places the onus of proof for unfair dismissal on the dismissed employee. There are three matters which the tribunal will have to decide when there is a case of unfair dismissal before it. In the first place, was the chap, in fact, dismissed? It could be argued that he left voluntarily and that it must be for the employee to establish that he had, in fact, been dismissed. That is implicit in this Bill and it was implicit in the last Government's Bill. Secondly, what were the reasons for the dismissal and was the dismissal unfair or not? Quite plainly, it would be wrong—and I am in entire agreement with what the noble Lord, Lord Diamond, has said—to require the dismissed employee to establish the reasons for his dismissal. These reasons are peculiarly and solely within the knowledge of the employer himself and it is quite clear—and here I can give the noble Lord a quite unequivocal assurance—that the burden of proof rests fairly and squarely on the employer.
It seems to me that the provisions of Clause 22(4) make it absolutely clear that it is for the employer to establish the reason for the dismissal, and it is just as clear in this Bill as it was in the last Government's Bill. What will happen in practice is that, in bringing his complaint of unfair dismissal, the employee will show that he has been dismissed within the terms of Clause 21 and that he regards the dismissal as unjustified. All the employee has to do is to show that he has been dismissed. The employer will then have to show his reasons for the dismissal, and thereafter 1393 it will be for the tribunal to establish the facts and the motives for the dismissal of this man, and then to determine, in the light of those findings and the arguments and counter-arguments, whether in accordance with equity and the merits of the case the dismissal was, in fact, unfair. It is certainly my impression—and, much more important, I know that it is much more than an impression and is indeed a conviction of my noble and learned friend, the Lord Chancellor—that the burden of proof in this aspect of the matter rests squarely on the employer, under the provisions of the Bill as they stand.
But let me make one other point absolutely clear. I acknowledge the great importance of this issue. I acknowledge the disquiet—from reading in the Press, for example—which has been caused here, and I acknowledge the sincerity of the noble Lords concerned. They seem to be doubtful about the provisions of the Bill as at present drafted, and whether they make it clear beyond peradventure that in establishing the validity of the dismissal the onus of proof rests fairly and squarely on the employer. I understand that they are concerned about this and I am quite prepared, if there is any residual doubt in their minds having heard my explanation, or any explanation which my noble and learned friend will wish to give, to give an assurance that we are very willing to look hard at this point between now and Report stage and to assure the noble Lord that if need be an appropriate Amendment will be forthcoming to make what I understand about the onus of proof (and I think I understand correctly) clear beyond any shadow of doubt.

§ LORD BERNSTEIN
If the noble Earl really means that, why is there this difficulty about accepting the Amendment? The noble Earl suggested that we were disturbed. I am disturbed because, so far as I read the Bill, the burden of proof is not effectively imposed upon the employer as the noble Earl admits that it should be. The Amendment does that. The employer can under the present Clause 22 (if I may advance the discussion and bring that in) frustrate a claim for unfair dismissal by his bare allegation that he dismissed the employee for one of the reasons enumerated in Clause 22(1). This interpretation of the 1394 clause is suggested by the case law developed under the Redundancy Payments Act. Moreover, as I read the Bill, as soon as the employer shows a "good reason", which need not be a "fair" reason, the burden of proof shifts to the employee. What chance has an employee against a mighty, powerful employer? The Amendment makes it clear that the employer bears the burden of proof. It appears to me that if these Amendments are rejected, as I gather they are going to be, the procedure ostensibly designed to protect the employee against unfair dismissal is deprived of most of its value. I therefore cannot see why the noble Earl opposite cannot accept the Amendment.

§ THE LORD CHANCELLOR
The reason is that the matter seems to be clear beyond a peradventure and because my noble friend, out of consideration for the feelings of the Opposition, has agreed to examine it again. It is clear beyond a peradventure because the conditions in which dismissal can be allowed are related in subsection (1), and subsection (4) says clearly: …dismissal of an employee shall be regardel as having been unfair if no good reason for it is shown …. So far from paragraph (b) of that subsection containing a derogation from it, it contains an addition in the employee's favour because it says that even if a good reason is shown—the good reason clearly referring back to subsection (1) —if the employer has acted unreasonably he loses his case. What could be plainer than that? My noble friend has said that, although it is as plain as a pikestaff, we will still look at it again. I do not know what more an Opposition can want.

§ LORD BERNSTEIN
I am sorry, but I approach this in a practical way. Somebody dismisses a human being. The person who makes the dismissal should prove his case.

§ THE LORD CHANCELLOR
That is exactly what the clause says.

§ LORD DIAMOND
I do not recollect the noble Earl having referred to pikestaffs, but nevertheless he made the position very clear, and I am more than grateful to him, because whatever the legal effect of these clauses is at the moment, it is quite clear that the noble 1395 Earl has given a very firm undertaking that if it is wrong it will be put right—and we are all agreed on what right is. I understand the exception which the noble Earl made in the first of the three matters which have to be considered.

EARL JELLICOE
If I may just correct the noble Lord, I do not think I said that if it was wrong it would be put right. What I think I said was that I would make certain to make assurances doubly sure.

§ LORD DIAMOND
That is just as good, and better that it has now been said a second time. Therefore I can only repeat my gratitude to him. He has not in fact—and I am not complaining about this—made any reference to the clause to which I referred him, Clause 102, but I am hoping that this is because he will consider this as he said he will be good enough to do, and that he will take Clause 102 also into consideration. It is not for me to attempt to argue as to what the legal effect of these clauses is. It is for us, however, to be quite sure that on the best advice available the Bill carries out our intentions. It is quite clear what the intentions of the Government and the intentions of the Opposition are, and they coincide completely on this point, although some of us might have been happier if the words here had been incorporated—and it may be that they will be incorporated. There are occasions when, even though the effect of a legal provision is clear to a lawyer. it is not clear to a layman who may wish to consider a provision without reference to a lawyer. Therefore it can be of advantage to have a simple declaratory provision to make it clear. Perhaps the noble Earl when considering what he has to consider, will, in addition, consider whether any doubts a layman may entertain might be removed in this way.

§ LORD SHACKLETON
I am grateful to the noble Earl who gave a most forthcoming answer. There are two points I should like to make. Inevitably, when we look at Amendments of this kind, we have to look at different parts of the Bill. It is not possible just to take the Amendment on its strict wording. The noble Earl's intentions are perfectly clear and I should not wish my noble friend to do other than withdraw the Amendment. It 1396 is not going to be possible, least of all in this Bill, to produce clarity for those who have to operate its provisions. I have had a good deal of experience in interpreting and administering the law—and this is a further strain on the employers; but nonetheless one that should rightly be put upon them. There are a number of guides to employers to enable them to interpret Acts of Parliament but, crucially in this case, the code of conduct is the important document.
There is one particular point I should like to put to the noble Earl. He says that it will be for the employee to prove he has been dismissed. The practice of good employers in large organisations and certainly in the Government service—and this was the case in the large firm I was in—is to write a letter of dismissal to the employee concerned so that it is as plain as a pikestaff that he is dismissed. I am not pressing this matter too much, but it is just open to argument how somebody can prove he has been dismissed when perhaps the employer says, "He wanted his cards. I did not force them on him". I should like to ask the noble Earl whether there will be a provision in the code of conduct on this point. It could be an important one. I am not disagreeing with the basic principles but it would be helpful if the noble Earl could comment on how, when it is a matter of dispute, the employee could prove he was dismissed.

§ THE LORD CHANCELLOR
I cannot say in advance what the code will say; but if two people give variant and divergent accounts of the same thing, the tribunal must make up their minds who is telling the truth. Under existing law, two witnesses, one on one side and one on the other, give accounts of a transaction, both of which cannot be true. It is the business of the court—in this case it will be the business of the industrial tribunal—to try, by asking questions, by examining the surrounding circumstances or looking for corroborative evidence, to find out who is telling the truth. If the employer said that the employee asked for his cards, that would be a complete answer to a charge of unfair dismissal. If the employee had said, "I am finished, I want my ", that is not a dismissal. On the other hand, the employer may be lying. The employee may say, "Not at all; the employer gave them to me and 1397 said 'You can pack your traps and clear off'". But the employee may be lying. Where there is a dispute of oral evidence it is the business of the tribunal to decide who is telling the truth.
It is, of course, possible to provide in the code of industrial practice for a written notice of dismissal; that would be open to the Secretary of State to do, but at this stage I cannot—the noble Lord will not expect me to—pre-empt the code of industrial practice as to whether written notice will be required in every case, however small the business and whatever the nature of the employment. Obviously, it is something that we shall have to look at.

§ LORD SHACKLETON
It would be very helpful if the noble and learned Lord were able to pre-empt the code of practice; then we could move more quickly on this. The point here—I am sure that the noble and learned Lord takes it—is whether the onus of proof should be on the employer rather than the employee. We are not pressing this. I am asking noble Lords opposite to consider it and we might return to it later. But the noble Earl was clear that the onus of proof for dismissal was on the employee. If the onus was on the employer, it would ensure that satisfactory dismissal procedures, of a kind widely used in industry, became general. I am not asking noble Lords opposite to go any further than to consider this point. It may well be that they could give some sort of assurance. The noble and learned Lord has said that we have complained before now about the absence of the code of industrial practice. It does become clear that some of the suspicions with regard to this Bill would be reduced if the code were available, but all I ask is that they will look at this point.

LORD WELLS-PESYTELL
I do not want to prolong this discussion, and I may have misheard my noble friend, Lord Shackleton. I thought he said that the noble Earl, Lord Jellicoe, had said that the responsibility and onus about proving dismissal was on the employee. My recollection is that when we were discussing it the noble Earl said that in Clause 22 the responsibility, the onus of proof, was on the employer. I hope that this will be so because from my 1398 experience as a magistrate, I think there is a growing feeling that the complainant is very much at a disadvantage these days and the defendant very much at an advantage. In a sense, this is a kind of complainant-defendant situation. There is abundant evidence available that the complainant is at a disadvantage and the defendant at an advantage, and I welcome what the noble Earl said, that it was his view that in Clause 22 the onus of proving responsibility was on the employer, and not on the employee.

§ THE LORD CHANCELLOR
The noble Lord has misunderstood what my noble friend said. I will repeat it in language which I hope cannot be misunderstood. If an employee complains that he has been unfairly dismissed, he must prove that he has been dismissed. Once he has proved that, it is for the employer to justify the dismissal. The burden of proof is then on the employer to pr we that the dismissal was not unfair. I hope that is quite unambiguous. That is what my noble friend said and—without prejudice to the request of the noble Lord, Lord Shackleton, that we should consider the subject—that is what the clause means as it stands; it cannot mean anything else.

§ LORD SHACKLETON
The noble and learned Lord said "without prejudice to the request I made". May I ask whether the noble and learned Lord is going to consider the point that the onus of proving dismissal should be on the employer instead of on the employee? I only ask him whether he will consider this.

§ THE LORD CHANCELLOR
Of course it will be considered, though I must tell the noble Lord that I think the clause as drafted does justice to both parties. I would not refuse, particularly at this hour, to consider anything put responsibly from the Front Bench opposite but I do so without any commitment at all.

§ LORD DIAMOND
In those circumstances, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 20 shall stand part of the Bill?

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§ 1.40 a.m.

§ LORD STOW HILL
On the Motion that Clause 20 stand part of the Bill, I should like to put a question to the Government Front Bench which raises an important issue of principle. Clause 20 is expressed as applying to every employee. In the Bill two words are used—worker and employee. If we turn to Clause 158 we find that they are quite differently described. On page 118 your Lordships will see the definition of "worker" and on page 115, the definition of "employee." The definition of employee is far narrower than the definition of worker. Worker includes employee. An employee is defined on page 115 as being employed on a contract of employment. I would add that in a legal sense that has a well-understood meaning. It means a person who is working under the terms of a contract in which he is under the direction of his employer.
If we go back, we find that the definition of a worker is wider in this sense: that in the first place it embraces an employee, but in addition it embraces persons who are engaged on a contract to perform personally any work or services. That is a distinction which is well recognised in law. If we ask what is meant by a person employed under contract, we envisage a situation in which a person is not engaged to work immediately under the supervision of his employer but brings to his task an expertise of his own. He may be a highly skilled artificer who is going to do the work in his own time, perhaps at his own workshop, and not under the immediate eyes and supervision of the employer. That is the distinction recognised in law between a person engaged under a contract of employment and a person engaged to do personal services.
The question I want to ask is this. Why is Clause 20 limited to employees, whereas the other basic clauses in the Bill, dealing with the rights of those who are working for others and beginning at Clause 5, extend to workers? We are discussing Part II of the Bill, which includes both Clauses 5 and 20, and Part II is headed, Rights of workers." When one looks at Clause 5, which is a basic clause setting out the rights of persons who work for others, one finds that that 1400 applies to every worker. If one looks at Clause 6, which deals with pre-entry agreements, one again finds that that deals with workers. If one goes on through these clauses in Part II of the Bill and looks at those, for example, which deal with agency shop agreements, one finds that they also apply to workers—the wider expression, not the narrower expression. Equally, if one looks at the new Clause 16, which deals with the new closed shop agreement, one finds that that is a clause which uses the expression "workers" and not the expression "employees".
I should like to ask the Government what is the thinking which underlies the transition from the use of that far wider expression "workers" in the earlier clauses to the narrower word "employee" in Clause 20, again another basic clause dealing with the rights of those who work for others. I wondered whether the reason for the transition could be this: that Clause 20 is dealing with dismissal. Could it be in the mind of the Government (I ask myself) that dismissal in the sense in which it is dealt with in Clause 20 could only apply in the strict sense to an employee, a person engaged on a contract of employment? But when I look back to page 4, which contains part of Clause 5, I see the same word "dismiss" used in line 13 equally of the worker; that is to say, the worker, including the employee and the person who performs services.
I feel puzzled (I say this in all sincerity, and I really am asking for information about this: I am not merely trying to make a captious point) why there should be a transition in Clause 20 from the wider word workers" to the narrower word "employee". I have no doubt that it is based upon some fundamental thinking as to the philosophy on which this Bill is constructed. But it does have this effect. Clause 20 gives these rights in relation to unfair dismissal. It gives those rights to far fewer people when they are limited to employees, in the strict sense, than it would give if it included workers in the general sense. Therefore the effect of this transition is greatly to limit in numerical terms those who can avail themselves of the rights given under Clause 20. I am sure that there is a reason, and I am asking what the reason is, because I would respectfully submit 1401 to the Committee that unless there is an adequate reason one asks oneself seriously: is it right to deny to workers who do not fall within the strict category of employees under a contract of employment the rights which Clause 20 and the succeeding clauses confer to obtain compensation in the event of unfair dismissal? I should be most grateful if I could have the noble and learned Lord's observations in answer to that question

§ THE LORD CHANCELLOR
I think I can give the answer, although I will try to give it as briefly as I can, prefacing my remarks with the observation that the thinking is exactly the same as the thinking in Clause 33 of the last Government's Bill, where exactly the same language was used, for I apprehend exactly the same reason. The noble and learned Lord is quite right in drawing a distinction between "worker" and "employee", because in the definition clause "workers" includes a number of classes of person, particularly those who provide services, such as those in the Armed Services, and particular persons of that type who do not have a contract of employment in the ordinary sense, although unfair dismissal will certainly apply to civil servants. The word "worker" is wider than "employee" for exactly the reason the noble Lord has given. Nearly all workers are employees because nearly all workers work under a contract of employment. The statistics of those who work under an independent contract for the provision of services must be in a very small minority.
The noble Lord asked why Clauses 5, 6 and 16 apply to workers and not employees. The answer, broadly speaking, is: because they deal with their rights to belong to a trade union. The rights to belong to a trade union must therefore be co-terminous with the larger of the two classes. He then went on to ask himself why the concept of unfair dismissal applies only to employees and not to all workers, although the vast majority of workers are in the class of employees. He gave himself a perfectly adequate answer; namely, because the concept of dismissal is applicable strictly to a contract of employment. Up to that moment his reasoning was impeccable the trouble was that he then misled himself by looking at Clause 5 and page 4 of 1402 the Bill. It says that in certain circumstances it would be an unfair industrial practice for any employer, or for any person acting on behalf of an employer, to dismiss, penalise or otherwise discriminate against a worker by reason of his exercising the right to belong or not to belong to a trade union. His speech unfortunately stopped at the word "dismiss". The reason why "dismiss" appears in Clause 5(2) in that context is precisely because, although it is not true that all workers are employees, it is true that all workers are workers. It was necessary to put that word in because the vast majority of workers are under a contract of employment and are therefore liable to be dismissed. If he had gone on to read the rest of the phrase: penalise or otherwise discriminate … He would have seen that the reason why "dismiss" did not stand alone was precisely because the class of worker was wider than the class of employee, and the words: penalise or otherwise discriminate against … were precisely designed to cover the whole class and not only part of it. The reason why unfair dismissal is unfair dismissal is because "dismissal" is a term of art applying to contracts of employment. That is why, both in the Labour Bill and in the Conservative Bill, the word "employee" is used deliberately of the class of persons who have a right to complain of unfair dismissal.

§ LORD STOW HILL
If the tone of that reply had been more temperate I should have expressed my thanks to the noble and lee rued Lord, but—

§ THE LORD CHANCELLOR
The noble Lord asked me a clear question as to why it had been done and I tried to give him a clear answer. If I have caused him any kind of offence, I am sorry; I thought that at the hour of ten to two in the morning, if he asked a clear question a clear answer was what he required. If he had wanted a woolly answer I would have tried to cook up one for him.

§ LORD SHACKLETON
May I interrupt? Whatever the hour, the debate from this side of the Committee is being conducted in calmness and not in excitement. I beg him not to reply to my noble friend as he just has done.

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§ THE LORD CHANCELLOR
With great respect, it is the noble Lord's noble friend who has, for some reason, taken offence, when no offence was intended. He asked a plain question; I was at some pains to give him a plain answer. What can be more civil than that'? There was no excitement about it at all until the noble Lord accused me of intemperance, which in itself is a phrase which is liable to be misunderstood.

§ LORD SHACKLETON
No offence, I am sure, was intended, but if the noble and learned Lord wishes to hear what he sounds like I suggest he goes and listens to the recordings of our debates.

§ THE LORD CHANCELLOR
I know very well what I sound like, for I have been at them.

§ LORD STOW HILL
I do not want to prolong a debate in any spirit of distemper. All I am saying is that if the noble and learned Lord did not intend to give offence, and did not think he had, I am very sorry for him. But may I go back to the point for just one moment, he said that my logic was faulty in that I had stopped reading the whole of line 13 on page 4. All I can say to him is that I cannot understand why the word "dismiss" is not appropriate also to a person who is engaged to perform services. If I employ a skilled artificer and then I dismiss him and say, "I don't want any more of your services" it seems to me that in using of him the term "dismiss" I am using a perfectly ordinary, appropriate term as understood in the English language.
I wondered whether that was the reason. It may well be that that was the reason why the distinction was made in the Government Bill. It does not follow that the distinction is necessarily a right one, and I was simply asking for information as to whether it would be right to deprive persons who were engaged on contracts for services of similar rights to those which are given under Clause 20 to employees; namely, if they have been unfairly dismissed in the sense in which that word is used in Clause 20 and the subsequent clauses, why should a person who is engaged on a contract for services not have rights equal to those which are vested in the employee by Clause 20? 1404 I have not had an answer to that, and IT there is an answer I should like to hear it.

§ THE LORD CHANCELLOR
Well, I will try to give it again. At the expense of receiving another broadside of complaints that I am being intemperate, I still say that the word "dismiss" is appropriate to a contract of employment. I cannot accept the view of the noble Lord that a man, because he is a skilled artificer, is not a person who may be working under a contract of employment. The vast majority of them are, and I find it quite difficult at this hour to contemplate one who is not, unless he belongs to that rare class in the building trade of whom most of us disapprove.

§ LORD STOW HILL
I am sorry; I still do not think I have received an answer to my question. If I asked somebody to paint a portrait of somebody else and engaged him to do that, and when he started working on it I suddenly tell him he is finished, he is out, I should have thought that in ordinary parlance I am dismissing him. I do not quite see why in those circumstances he should not have the same sort of right as a person who is engaged on a contract of employment. I have not yet had an answer to the question I asked as to why he should not. It is no good saying that most artificers will be employees. I daresay they will. Some will not. It is quite well known that some skilled persons who bring considerable skill to the work are regarded as not employed on a contract of employment. Why on earth it should be open to dismiss them unfairly, but not to dismiss employees unfairly, I simply want to know. I asked what I thought was a perfectly simple question, and I certainly did not want to generate the heat which has hung around this debate ever since.

§ THE LORD CHANCELLOR
There is no heat on my side, I can assure your Lordships; only, I hope, extreme clarity. If you engage a portrait painter to paint your portrait and repudiate the contract, you are liable to damages for breach of contract, but not for wrongful dismissal. I thought to a professional gentleman of the noble Lord's experience this was something which would not require saying even at 2 o'clock in the morning.

1405

§ LORD STOW HILL
I am sorry to continue this discussion, but if you dismiss wrongly a person who is engaged on a contract of employment, I should have thought it was trite law that everybody knew perfectly well that you commit a breach of contract; in precisely the same way you could have been sued for breach of contract for wrongfully dismissing him. I should have thought that that was elementary law, and you are in precisely the same position if you dismiss a portrait painter: you are liable for breach of contract. The only reason one does not sue under the terms of this Bill for unfair dismissal is that there is a new remedy set up; namely, your right to claim compensation for an unfair industrial practice. I make no complaint of that, but really the distinctions which the Lord Chancellor is trying to draw will not hold water.

§ VISCOUNT DAVENTRY
Supposing I employ a lawyer and I get fed up and finish with him? Am I sued for damages?

§ THE LORD CHANCELLOR
The answer is that if he is the Lord Stow Hill, apparently yes, but if he is only the Lord Chancellor, no.

§ LORD DIAMOND
This is, of course, an important clause—I am referring to Clause 20—but it is a fairly short clause, and we have now had a pretty full discussion on the various aspects of the various matters which the clause throws up. I should not think, therefore, there is any need to continue the debate further on this clause.

§ Clause 21 [Meaning of "dismissal".]:

§ 2 a.m.

§ LORD DELACOURT-SMITH moved Amendment No. 204: Page 16, line 6, leave out ("but only if").

§ The noble Lord said: I beg to move Amendment No. 204. Let me say at the outset that I am well aware that the words which I am proposing should be left out appeared in substantially the same context in Clause 33 of the Bill which was put forward by the previous Administration; but, of course, that Bill did not have the experience of passing the refining fire of examination by the two Houses, and it may well have been 1406 that had it done so these words would have given rise to some criticism and some comment. This is, in a sense, a continuation of the discussion which took place on the last Amendment, when the point was made, as I understood it, by the noble and learned Lord, the Lord Chancellor, that the onus for proving dismissal was on the employee but the onus for proving that the dismissal was not unfair was on the employer. I am addressing myself to the position of the employee, who has the task of proving that he has in fact been dismissed. It appears to me that the words which I am proposing to leave out make his task more difficult, and unnecessarily and excessively difficult.

§ We live in a pretty complicated industrial world, and in the circumstances of employment there can arise, I think noble Lords on both sides of the Committee will agree, a number of ways in which the employer can, as it were, force the employee to dismiss himself. There are many ways in which by changing his position in the organisation he can produce a situation in which an employee is virtually forced to r0esign. There are, for example, jobs in which men are able to earn all kinds of additional payments, for example, by tips, and to move a man from one such job to another job where that opportunity does not arise may well produce such a drastic change in his standard of living that he resigns his employment, dismisses himself. Or a man may work largely on commission and may find himself, as he feels unfairly, moved to some part of the country or some field of activity where his corn-mission earnings are going to be very low indeed, and a man who has perhaps spent many years in such employment finds himself put in a position where his task in earning the standard of living to which he is accustomed becomes impossible and he is back in the position he would have expected a new entrant to occupy.

§ But I do not think it is for me to spin out, as I could, a long list of hypothetical cases. I merely want to make the general observation that there can surely be within the knowledge of all of us circumstances in which an employer may rid himself of an employee he does not want by constructing a situation in which that employee will virtually sack himself. I am not for one moment 1407 suggesting that all the cases in which individuals feel that they have been so treated can be established as cases in which in reasonable justice the employee can claim that he has been dismissed and has not in any true sense resigned of his own accord. At least an employee ought not to be debarred by a qualification as drastic as this phrase imports from seeking to establish a case before the industrial tribunal that he has in fact been dismissed and is therefore entitled to seek to establish the further proposition that his dismissal has been an unfair one. I beg to move.

§ THE LORD CHANCELLOR
The noble Lord very fairly pointed out that the task in front of me was one which would have faced a Labour Minister in the last administration had he been faced with a similar Amendment to his own Bill. I am bound to suggest to the Committee, not that the noble Lord is in any way ill-advised to discuss this Amendment but that the reason why it cannot be accepted would almost certainly have been given by a Labour Minister defending his own Bill. And the reason why the same language appeared originally in the Labour Bill was not because they embraced it out of love but out of very good advice from those who have to draft Bills and who know that there must be a limit at which to draw the line.
Of course, I fully accept that employers can treat their employees badly and that this may, and I hope often does— and certainly should—result in the employee going elsewhere to give his services. That is true; but in the ordinary course this would not be described as "dismissal". In those circumstances you could say he was a bad employer. You might, and in many circumstances could, say he was breaking his side of the bargain, and in that case he would find himself faced with an action in the courts or with proceedings under Clause 108 in addition or in alternative to those contemplated in this clause. But in the ordinary course it would not be dismissal. This is not the right of compensation for unfair treatment resulting in resignation, which is what the noble Lord is contemplating. It is in fact compensation for unfair dismissal; and I must say to the Committee that although nobody would spare a moment's sympathy for the 1408 employer who behaved in this way or would wish to spare him a moment of anguish, if "anguish" could be fairly or legitimately achieved, you would get in the end a wholly unworkable clause which would turn what is intended to be compensation for unfair dismissal into compensation for unfair treatment leading to voluntary resignation; and I could not advise the Committee to extend it to that point.
There, admittedly, is the point of difference. If you are going to allow a right of compensation for unfair dismissal, which is one of the basic rights accorded by the Bill, I think you have to hedge it about with language which limits it to dismissal and makes it fair to the employer as well as to the employee. One can imagine that every kind of false allegation could be made by an employee who had voluntarily resigned about the employer's conduct; and the tribunals would be clogged with a whole variety of claims—some of them probably unverifiable and others frankly frivolous. I am afraid I must advise the Committee to stop where the Labour Government stopped and to stand on the point on which they stood. I do so without rancour because I recognise that there are cases of unfair treatment which are not covered by this clause, but this is a clause about unfair dismissal, and unfair dismissal is, I fear, where it must stop.

§ LORD BEAUMONT OF WHITLEY
May I tell the noble and learned Lord that we on these Benches appreciate his brief and pertinent replies to questions, and ask him whether the words which this Amendment would seek to leave out make any difference to the clause at all? If it was left that an employee shall be taken to be dismissed by his employer if (a) or (b) for the purposes of this Bill, could he in point of fact be assumed to be dismissed for the purposes of this Bill by any other point? Does it really add anything?

§ 2.12 a.m.

§ THE LORD CHANCELLOR
The noble Lord asks a very pertinent question and I think I should have dealt with it in my reply to the noble Lord, Lord Delacourt-Smith. The answer is, yes it does. I am bound to say I asked myself the question so it is not, I hope, a silly 1409 one, otherwise we are both in the same boat. I am sure on reflection that the draftsman is right in telling me that it does because the effect of the Amendment would be to leave it quite uncertain as to whether the circumstances of dismissal in subsection (2)(a) were exhaustive or not. The better view—although not, I confess, the certain view—is that they would not be exhaustive and it would open the door to the kind of very reasonable but, I think, for the reasons I have given, unacceptable type of claim which the noble Lord, Lord Delacourt-Smith, contemplates. It would leave one in doubt. Of course, those who think that the arrière-pensèe behind this Bill is to provide pickings for lawyers would be surprised to find an Amendment which has such attractive possibilities in front of it, but I must out of all candour tell the noble Lord that it would make a difference, and the difference is that it would make the clause obscure.

§ LORD DELACOURT-SMITH
I do not think it has ever been the view of anyone on these Benches that the arrière-pensée behind the Bill was to provide additional employment for the legal profession. They merely regarded it as an incidental consequence and not the principle purpose of the Bill. But I really do wonder whether we ought to leave the matter where the noble and learned Lord proposes that we should. He has accepted, very fairly, that there is a point of substance here and there are employers of a particular type of meanness and ingenuity combined who can produce a situation which would in fact enable them to escape entirely, in respect of these situations which they create, the changes which, with general consent, it is desired to make.
I am not quite sure whether the noble and learned Lord put his argument mainly on the fact that one could go too far, as it were, in this: one had got to be a little restrained and not pursue the employers too far. The Bill goes quite a good way but was he suggesting perhaps that it should not go too far? Or was he basing his argument on the fact that this would produce cases in general of exceptional complexity for a tribunal to examine? Or was he putting the argument that this would add a load to the tribunal, in terms of the sheer number 1410 of cases, which the tribunal ought not to be expected to bear? I am bound to say that I feel unhappy at leaving the matter where it is. I wonder whether the noble and learned Lord could give an assurance to look at this problem and see whether anything can be done about it?

§ THE LORD CHANCELLOR
It would be discourteous to say that I would not consider it at all, but I am pretty sure that however often I look I am almost certain to come to the same conclusion. I would not answer the noble Lord's question about which of the grounds I was really standing on; I think they are cumulative and not alternative. I think these cases would clog the tribunals. When you bear in mind that once dismissal has been accepted the onus is on the employer to justify it, and not on the employee to establish that it was unfair, the fact that there was a sort of grey area in which people parted on bad terms by mutual consent which could be represented as a dismissal would do a lot of injustice to marginally good employers. I think also the employee has his rights under Clause 108, or under the ordinary rights of his contract if they have been seriously infringed. I feel that there is the class of case to which the noble Lord has rightly referred; therefore I am not brushing it aside as an unreasonable case at all. These cases will exist, and if we stand pat, as I am probably doing, we shall have to face the fact that they do exist and that we are not coping with every case. But since the noble Lord asks me to carry the point back and see whether anything can be done about it, I will do that, on the understanding that I am making every possible discouraging noise.

§ LORD DELACOURT-SMITH
That is not very helpful, if I may say so, but in all the circumstances I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ LORD DELACOURT-SMITH moved Amendment No. 205:

§ Page 16, line 12, at end insert— ("or (c) any suspension of 7 days or more within a period of 6 weeks with or without pay shall be regarded for the purposes of this Act but only for those purposes as a permanent dismissal.")

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§ The noble Lord said: This is, I suppose, in some ways a rather special case of the type that I was describing to the Committee on the earlier Amendment. It is the case where an individual worker finds himself subject to suspension, and we are suggesting that a suspension which is unreasonably maintained, for an unreasonably long period, should be tantamount to dismissal. It is then established that a dismissal has taken place, and the employee can, if he wishes, seek to take the case to the tribunal. The experience of being suspended from work, even if it is suspension with pay—and still more, of course, if it is suspension without pay—is an exceedingly unpleasant and humiliating experience for any worker to undergo. It is a course which should, in our view, be followed by an employer only in serious cases. It certainly should be continued by an employer for longer than the period we have indicated only in cases of very great seriousness. We therefore put this Amendment forward as an attempt to deal with at any rate one type of case of behaviour of the kind that we were discussing in more general terms on the earlier Amendment. I beg to move.

§ LORD BERNSTEIN
I wish to support this Amendment. It would enable a worker to claim compensation for unfair dismissal in a case in which he was not formally dismissed, but was suspended. In the absence of such a clause the employer could circumvent the new provisions, by repeatedly suspending the employee and in fact forcing him out without dismissing him. I think that compensation for unfair dismissal should generally be available in a situation in which an employer, by his conduct, forces his employee to quite employment. It does not seem to me a very difficult Amendment for the Government to accept. I must say I find it rather surprising that they have not accepted any Amendment so far. True, there have been promises. Is it not possible that at some time during the course of our nearly three weeks' debate the drafters of the Bill could have been wrong? There is a difference between the noble Lords opposite saying, "We are not certain we are right", and saying, "It is possible we are wrong".

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EARL JELLICOE
The noble Lord, Lord Delacourt-Smith, always puts his points so attractively that one finds oneself half taken down the stream before one can manage to swim back, and he has done so again. I am afraid I must inform the noble Lord, Lord Bernstein, that I am again going to advise your Lordships that there are serious objections, in our view, to this particular Amendment. May I just say to the noble Lord, in passing, that I do not think he should worry unduly if one is not at the Committee stage, able to say, "Snap" to a particular Amendment which is proposed. When we say—and I have said myself on quite a few occasions in the short time I have been engaged in discussing this Bill—that we will look at a certain point, it is a term of art, and it has a very definite significance. These are not undertakings lightly given. He will know, when he has been with us a little longer, that when one says that—at least I hope this is so, and it is certainly so in the case of everybody speaking from this Despatch Box—it entails a very definite assurance and a commitment, on the part of the Government. I should like to make that absolutely clear.

§ LORD DIAMOND
I am most grateful to the noble Earl. I interrupt him, and I apologise for doing so, only to point out that he has unduly restricted his language. There is also a phrase, "Undertake to look sympathetically". That also has a meaning, and a more clearly understood meaning. If he would not be unduly restrictive, we should like to hear what it sounds like coming from his lips.

EARL JELLICOE
Within my own immediate recollection I have gone quite a long way beyond that, and I have said, on certain occasions, that I would undertake to produce an Amendment myself, and that undertaking was not lightly given. There are four grounds why the noble Lord's Amendment worries me. In the first place, it is the Government's view that the unfair dismissal provisions of this Bill should not extend to any action by the employer other than in circumstances where he terminates a contract of employment. There is a fairly respectable pedigree behind that attitude. One will find this embedded in the I.L.O. recommendation on unfair dismissals, 1413 from which a great deal of this stems. So far asI know, nothing more was envisaged in the holy writ of the Royal Commission's Report. As I need hardly remind the noble Lord, Lord DelacourtSmith, the Bill published by the last Administration—I do not say that this is necessarily the strongest ground on which to stand, but at least it is a ground on which I stand at this moment—included no such provision. The pedigree for the limited approach in this particular aspect is a reputable one.
The second reason is the practical one that to extend the provisions as suggested in the Amendment could, in certain instances, create very real difficulties for employers in industries where contracts of employment provide for layoffs in certain circumstances, sometimes, of course, with guaranteed pay provisions. I know that those agreements are not always very popular—I think there is a British Leyland agreement at the moment which is not the most popular one—but they do exist.
The third reason is that special measures are already being taken—we shall be coming to these when we discuss a later clause this morning— to do everything possible, at least at the initial stage of the operation of the Bill, to keep the case load, which is going to fall on industrial tribunals as a result of the unfair dismissal provisions, to manageable proportions, and to extend their jurisdiction to suspension cases would undoubtedly add a good deal to that case load and exacerbate this difficulty. That would have one extremely undesirable effect—and undesirable for noble Lords opposite, judging by Amendments which we shall be taking reasonably shortly—of almost making it necessary to extend the initial qualifying period which I know they do not like any more than we do. We believe that protection of the kind suggested in the Amendment is a matter for voluntary association and collective agreement.
There are some very real difficulties and these are more than drafting points in the procedure which is suggested, and which is implicit in the Amendment. For example, how could an employer agree to reinstate an employee whose contract was not terminated, but who had been suspended because of a shortage of work? I am using that as an example, because 1414 reinstatement is the primary remedy under the unfair dismissal provisions. Or would such an employee be able to bring a claim of unfair dismissal every other week if he was put on short time? And is it reasonable to require an employer to face a claim of unfair dismissal when he suspends a worker on full pay? I know that the noble Lord talked of suspension without pay and with full pay, but in the case of full pay would it be reasonable? Those are specific difficulties. But the main reasons why I cannot advise noble Lords to accept this Amendment are the primary ones which I gave at the outset of my remarks.

§ LORD DELACOURT-SMITH
I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 21 shall stand part of the Bill?

§ LORD DELACOURT-SMITH
I wonder whether this is the appropriate point at which to ask the noble and learned Lord the Lord Chancellor whether he would amplify his remark about the bearing of the dismissal provisions on the Civil Service.

§ THE LORD CHANCELLOR
I said what I said advisedly, because someone passed me a note. It states that if Lord Stow Hill asks whether the Civil Service are covered for unfair dismissal, the answer is, Yes. So I am pretty sure that I was right. Clause 154 states that, …the provisions of this Act shall have effect in relation to Crown employment and to workers who are Crown employees as they have effect in relation to other employment and other workers. The Bill distinguishes between the rights of workers and the rights of employees, but I should have thought it was clear that in principle the civil servant was covered by these clauses. I am not sure how much more amplification is wanted. There is probably more than I could say, but my opinion is that Clause 154 applies the Bill to the Crown. If there is any point on which I can help, perhaps I could be asked.

§ LORD GARDINER
I have not heard the previous discussion, but I was in a case in which it was held after a lengthy argument and all the authorities that civil servants are not employees.

1415

§ THE LORD CHANCELLOR
My noble friend has come to my legal aid. If the noble and learned Lord will look at Clause 154(3), he will see that it reads: For the purposes of the application of the provisions of this Act in relation to Crown employment in accordance with subsection (1) of this section"— Subsection (3) is the one I sought to summarise, and I do not think at all inaccurately— … any reference to dismissal shall be construed as a reference to the termination of Crown employment; …any reference to redundancy … and so on. I think the combined effect of subsections (1) and (3) is to apply unfair dismissal to Crown employees. This is the feeling I have at the moment.

§ LORD GARDINER
I quite appreciate about Crown employees, but civil servants are not Crown employees. This was a very long case (the noble and learned Lord may remember) arising out of what somebody else called "the Selwyn-Lloyd freeze". They had got an award in their favour for people like liftmen and other servants of the Crown; the Government simply said, "We are not going to pay", and they issued a writ saying, "We are entitled to the money".

§ THE LORD CHANCELLOR
I think I know the case.

§ LORD GARDINER
I forget the name of the case. I think it was against the War Office; but it was held that they are not employees.

§ THE LORD CHANCELLOR
I think the noble and learned Lord—

§ LORD SHACKLETON
I think I might try to help on this occasion, because I was heavily involved in this. As I understand it, they are not employees, and the Bill, of course, does not talk about them as employees. It talks about Crown employment.

§ LORD GARDINER
Section 154.

§ LORD SHACKLETON
It talks about Crown employment.

§ LORD GARDINER
No; it talks about Crown employees.

§ LORD SHACKLETON
We will come on to this but, as I understand—and the Minister in day-to-day charge of the Civil Service Department will no doubt be 1416 able to help, as I have tried to help in the same way—in the Race Relations Act, they are deemed to be employees for the purpose of the Act; but it does not, as I understand, affect their status that they are not operating on a contract of employment. I know we had many arguments, which is why we had it in the previous Bill. This is one of the few references to the previous Bill that I find quite relevant.

§ 2.33 a.m.

§ THE LORD CHANCELLOR
This is absolutely splendid. I seem to have friends in all quarters of the Committee assisting me in my rather ungrateful task, and I should like to express my appreciation to noble Lords behind me and in front who are holding up my arms in battle with my predecessor. But I still think I am right. I quite agree that the noble and learned Lord has a point. It is quite impossible for a civil servant in the ordinary sense, at any rate in the administrative class, to bring an action for wrongful dismissal. That is quite clear; and I think that is the point he has in mind. But if he would look at Clause 154, I think I should prefer the construction put upon it by the noble Lord, Lord Shackleton, because it says this in subsection (1): Subject to the following provisions of this section, the provisions of this Act shall have effect in relation to Crown employment and to workers who are Crown employees." — thereby implying that they are two separate things— as they have effect in relation to other employment and to other workers". Then, subsection (2): In this section (subject to subsection (5)) 'Crown employment' means employment under or for the purposes of a government department, otherwise than as a member of the naval, military or air forces of the Crown or of any women's service administered by the Defence Council, and 'Crown employee' means a person who is for the time being in Crown employment or (where it has ceased) was in Crown employment. Then comes subsection (3), which I have already quoted. I think that rather establishes the point made by the noble Lord, Lord Shackleton, which is the same point as was contained in the rather succinct notice which I was given and which prompted my original remark, which I was asked to amplify, as I hope I have now done.

§ Clause 21 agreed to.

1417

§ Clause 22 [Fair and unfair dismissal].

§ 2.35 a.m.

§ LORD DIAMOND moved Amendment No. 206. Page 17, line 6, leave out from ("be") to second ("the") in line 7, and insert ("held to have been unfair if it is not shown that the reason for the dismissal (or, if there was more than one reason for it,").

§ The noble Lord said: I beg to move Amendment No. 206. Perhaps it would be convenient at the same time to discuss Amendment No. 207, which is a shorter, alternative form of achieving the same object. The object of this Amendment is to underline the fact that, to draw the attention of the Government to the fact that, and to ask for an explanation of the fact that whereas the previous clause reads: …an employee shall be taken to be dismissed by his employer if, but only if…"— that is to say, it is in a very restricted form—in this part of the Bill, under Clause 22, there is such restriction. The effect of that will presumably be that fair dismissal will now be made up of two categories: the first category being those specified in Clause 22(1)(a), (b), (c) and (d) and the second category being those not there specified. Whereas under Clause 21 only the category specified counted, here, where we come to fair dismissals, the employer may justify his action as having been a fair dismissal, not only if he acts within paragraphs (a), (b), (c) and (d) but also if he acts in an unspecified way outside paragraphs (a), (b), (c) and (d). There is a difference in treatment between the two clauses which needs explanation. It seems to us that the more restrictive method (which is contained in either the first Amendment or the second Amendment) would be a more satisfactory way of approaching the problem. I beg to move.

EARL JELLICOE
Before turning to the Amendment, I should like to make one thing absolutely clear. It is that we, no less than noble Lords opposite, believe it is now high time that we provided clear, straightforward remedies against unfair dismissals in this country—remedies which are to be found in the legislation of almost every other major industrialised country in the world today. As I have sought to address myself to this legislation it has struck me with considerable force, from reading Donovan or the various research projects which 1418 the Department of Employment have initiated, how exceptional—and "exceptional" in a bad sense—is our position at the present time. I should therefore like to make it clear that we agree with I.L.O., with Donovan, with In Place of Strife, with the last Government's proposed legislation and, not least, with our own Fair Deal at Work, that this is a gap in our industrial relations which we must close or seek to remedy. I do not think there is any dissent between us whatsover on that point.
That said, I should like to make clear that the definitions of unfair dismissal in this Bill are, in substance, the same as those in the previous Government's Bill; but in our view they have the merit of being a good deal more simple and understandable. The proposals in the noble Lord's Amendments and those Amendments to which we shall be coming shortly would involve us in a whole battery of double and triple negatives. We 'have provided, quite simply, that dismissals on grounds of capability, conduct and redundancy—the trinity of reasons—should be fair, provided that the employer does not act unreasonably. I would draw particular attention to that extra reinforcement of the employee's position to be found in 'subsection (4)(b) of the clause. I believe it adds a very important and valuable safeguard to those available elsewhere in the Bill to an aggrieved employee.
As I understand it, the effect of accepting either of these proposed Amendments would be 'to make the three tests an exhaustive list of justifications for a fair dismissal. We should prefer not to go that far. We feel it important to recognise something which d think, judging from the debates in another place—though they did not cover this subject in great depth—the Party opposite have so far tended not to recognise; that there should be other reasons justifying dismissal outside those three main categories. We think that this is right and that it would be wrong if the tribunals were to be inhibited from considering, for example, such difficult issues as incompatibility. I believe this is the sort of issue which we should face. I am not thinking of what might be a rather bogus plea of incompatibility between employer and employee, but more of a 1419 practical situation in which an employer—particularly in a small firm where relations are intimate—might find himself faced with the problem of a couple of employees who were at daggers drawn with each other. It would be wrong if we were to make a dismissal on such grounds unnecessarily unfair. I believe that the tribunals, which will be seized with this whole question of dismissal, are admirably equipped to determine this sort of issue fairly, reasonably and equitably. For those reasons we do not think it would be right to make the trinity of fair dismissal provisions—capability, conduct and redundancy—exclusive, and that is why I find it impossible to accept the Amendment.

§ LORD DIAMOND
First, I must say with what real pleasure I heard the opening comments of the noble Earl, when he displayed his own attitude and that of the Government to the problem of unfair dismissal. This shows that we are thinking along precisely the same lines and that it ought not to be too difficult, therefore, to reach agreement on the wording. I was also much touched that he should find his experience in relation to the Bill exactly the same as I found mine. The more he read the Bill, the more he became impressed by the value of it. The more I read the Bill, the more I became satisfied that we are right in opposing it. But this is an acceptable part of the Bill. As the noble Earl explained this part is largely the provisions of the Labour Government's Bill published shortly before the General Election.
I realise that the noble Earl is on strong ground when in rejecting this Amendment he says that there is subsection (4)(b), which provides considerable strengthening of this point. I accept that completely, but I believe that he could have gone a little further and accepted this Amendment or some kind of restriction. It stands out in unfavourable comparison with the same provision in Clause 21, where the words "but only if" are inserted. We sought to have them removed and the Government explained why they are not prepared to have them removed. It is not sufficient merely to accept that it is helpful in Clause 21(1) but do not put the two clauses on a par. Therefore, I hope that 1420 the noble Earl will think once more about the situation. If he does not like the words in the proposed Amendment, does not like the double negative, though I do not see any other way we can do it, perhaps he can think of some other form of words which somewhat narrows the position. At the present time the situation is left wide open to claim fair dismissal, whereas under the previous clause the door was completely closed by the words "but only if". I think it reasonable to ask the noble Earl to consider this Amendment and in due course put down some other words which would somewhat restrict the possibilities of claiming fair dismissal. I do not think that that is asking too much and I should be grateful if the noble Earl would say one more word about this.

§ LORD STOW HILL
Before the noble Earl gets up, I wonder whether I may put one question as to the way in which subsection (4), which obviously is a most important and carefully thought-out subsection, is to be construed. May I take the case of an employee who clearly has been dismissed because of his lack of capability and therefore falls under subsection (1)(a) so that that subsection clearly operated. The result would be that, so far as that subsection is concerned, the words would come into effect: the dismissal of an employee by his employer shall be regarded as having been fair if the reason for it was as set out in paragraph (a).
If I may go to subsection (4), supposing that case comes before the industrial tribunal and subsection (4) is prayed in aid? Is the effect of subsection (4) that, although the employer can show conclusively that the dismissal of his employee was because the employee was incapable, the employer nevertheless does not succeed in resisting the claim successfully unless he can also show that there was some other good reason besides the fact that the employee was incapable? I think that is probably the construction of it. If it is, I certainly have no complaint; I think it is a very fair provision. But possibly the Government may feel that the words used are not quite unambiguous, and I should be grateful if I could have an indication of the Government's view as to their effect.

1421

EARL JELLICOE
I think I should tread rather warily on legal ground which might not bear my increasing weight at the present time. But my understanding is that the tribunal, when they are faced with any one or all three of the trinity of the fair reasons have also to judge that against whether, in all the circumstances of the case, the employer has acted reasonably. This is a matter within their discretion. I do not think I can go beyond that. That is my, perhaps, plain man's understanding of what the position is.

§ LORD DIAMOND
I thought the noble Earl might say a word or two as to whether he was prepared, in view of the plea I made, to look further into the point I was making; namely, an acceptability of the comparison between Clauses 21 and 22, Clause 21 using the words "but only if", and their being completely restrictive, and Clause 22 being completely wide open.

EARL JELLICOE
I had subsided rapidly because I was slightly running for cover on this legal point which was rather beginning to worry me. I must be frank with the noble Lord, Lord Diamond, because he has been frank with me. I am not going to be able to meet him on this point. I have explained why, and it would be disingenuous of me to pretend that I am going to be able to meet him.

§ On Question, Amendment negatived.

§ 2.54 a.m.

§ LORD DIAMOND moved Amendment No. 208: Page 17, line 8, after first ("the") insert ("lack of").

§ The noble Lord said: It might be for the convenience of the Committee if we discuss Amendment No. 209 with this Amendment, because, although the words are different and come in a different place, the reason behind the two Amendments is identical; namely, to strengthen the clause: and by "strengthen the clause" I mean restricting the right to claim a dismissal as having been fair. The reason I seek to strengthen the clause is that the noble Earl has said in relation to the last Amendment that he will maintain his position; that there should be completely unspecified categories, which may be endless in number, which would 1422 result in a dismissal being regarded as fair; and therefore one has to strengthen the position as much as one can to see that these unspecified categories do not result in too easy a reaching of that conclusion.

§ The noble Earl has been good enough to say that he, like we, takes the view that dismissals procedure should be clearly defined, and unfair dismissals should be prevented. In the first place, the first Amendment deals with capability, on line 8, and makes it clear that it has to be real lack of capability to justify a fair dismissal. The second one, at line 11, deals with conduct, and makes it clear that serious misconduct has to be present in order to reach a conclusion that the dismissal was fair. In both these cases it is making it a little more difficult—only a little more difficult—for an employer to establish the dismissal. In each of these cases we are departing slightly from the wording of the Bill introduced by the Labour Government, of which I was privileged to be a member.

§ The Government have completely altered the context in which these questions will be decided. They have altered the machinery of unfair dismissals procedure so much that it really has not only a different context but quite a changed significance. One has to do something to attempt to restore the balance by making the door to fair dismissal slightly narrower. I hope that I have explained the reasons for these two Amendments, the first of which I am now moving.

EARL JELLICOE
I should seriously like to help on this, but I am certainly not going to be able to help enough to satisfy the noble Lord, Lord Bernstein. Neither Amendment is acceptable as it stands at the present time. The difficulty with "lack of" is that "lack" could be taken to imply no capability whatsoever, or no qualifications at all. There may be the case in which there were circumstances where an individual had qualifications but they were not sufficient for particular employment. That is why "lack of" worries me.
Where an employer shows the employee's conduct as the reason for his dismissal the tribunal will, of course, under the provisions which we have been 1423 talking about (I think it is Clause 22(4)(b)) be required also to consider whether the employer acted reasonably. The dismissal would be regarded as unfair if the tribunal found that in all the circumstances the employer had acted unreasonably in treating the reason, in this case the employee's conduct, as a sufficient reason for dismissing him, when in fact after the evidence had been clarified and sorted out in the tribunal these three sensible chaps had come to the conclusion that the conduct, or misconduct, was in fact very trivial indeed.
The noble Lord suggested that here we had amended the last Administration's wording of the unfair dismissals provisions, and this is in fact the case; but I would point out that on the question of conduct the last Administration had refrained from attaching any adjective, or prefacing conduct with the word "serious". The sort of definition which noble Lords opposite have suggested here, "serious misconduct", is difficult for me to accept like that and I do not think I should be able to do so even after reflection. It seems to me to present difficulties. Serious misconduct would have to be distinguished from misconduct which was not to be regarded as serious, and I think it would prove extraordinarily difficult even with the reasonable provision to find the right definition here. Again there would be the problem of whether persistent minor misconduct would be equivalent to "serious misconduct". Those are the difficulties I see here, but I am sympathetic to the thought behind these two Amendments. I know I am going to get the noble Lord, Lord Bernstein, up on his feet protesting—

§ LORD BERNSTEIN
Right!

EARL JELLICOE
—against me in a moment, but here I would say that I personally should like (and I am speaking more than personally here) to see whether we can go at least some way to meet the point between now and Report stage.

§ 3.3 a.m.

§ LORD BROWN
May I make a short comment on this term "serious misconduct"? It has the connotation of a single act of great seriousness. If one accuses somebody in industry of serious misconduct one usually means something that is pretty bad. The term is used in 1424 university charters and such things and it refers to something pretty scurrilous. If an employer is seeking to dismiss somebody because he has been guilty of a serious stupidity and he is forced to use the term "serious misconduct", it is regarded among some people as slanderous or libellous, and I think we should be careful about putting it into a Bill and forcing the use of this term. In a long course of working in industry I have used the term very occasionally about scurrilous acts. I have never used it about many serious acts which have been sufficient to cause us to dismiss an employee, because he would have resented it enormously if he had been dismissed for serious misconduct; and if it had become known many other firms would not have re-employed him simply because that term had been used.

§ LORD SHACKLETON
I also was bothered about this term. The word "misconduct" has a special significance in the employment field and I would support my noble friend. All employers have difficulty in this connection. If somebody is dismissed for industrial misconduct it is serious enough for it to be a summary dismissal. There is no satisfactory definition. In my experience we used to apply the word "misconduct" and produce a summary dismissal in those circumstances in which one found it intolerable to keep the employee on the premises for a minute longer. It meant something very serious indeed. I do not raise this to complicate my noble friend's job, because we have perhaps moved on to something slightly different. I think we may need in the code of conduct, probably not in the Bill, some fuller definitions. No doubt lawyers can argue about what "misconduct" means, but simple employers and trade union organisations have got experience and know almost by instinct what is misconduct and what is not. It does raise an interesting point. I might go on debating this with my noble friend outside.

§ LORD BERNSTEIN
First of all, may I say that I accept with reservation the promises the noble Earl has made; my reservation is due to the air of ambiguity about it. I will save my more abject apologies to see how far our suggestions for making the Bill a better Bill, a more practical Bill, a Bill which is easier to understand, have been accepted. As far 1425 as this Amendment is concerned, the words are important or could be important, if you had an employer who wished to use the present form to dismiss somebody. I accept that all this will be only in the course of a man's employment; misconduct outside the premises will not be held against him, unless it affects his work the following day or on other days. Is it not possible to find a word to denote if somebody is incapable of doing his job? Let us assume you engage a man when he is 10 stone and he gets to 24 stone in a year; he might then be incapable of carrying out the job. Serious misconduct means something for those in industry; I urge that the sympathetic promises to come from the noble Earl are more complete than before.

EARL JELLICOE
My inclination is that we should probably leave it here, but it is for the noble Lord, Lord Diamond, to decide. All I said was that I am not happy that we have got it absolutely right as it is; I am pretty certain we should get it wrong if we accepted the noble Lord's Amendment, and I hope we may be able to find something to define it in the sense that we all wish for. I should not like to give a clear commitment, except that we will have a good hard look at it.

§ LORD SHACKLETON
This is one of the most difficult clauses in the Bill. I was unhappy about aspects of the clause on this in our Bill. Here the code is going to be absolutely crucial. In a way, we are inevitably discussing it within a vacuum. I do not know how we can get round this until we have the code to see what guidance is given.

§ LORD DIAMOND
I am most grateful to the noble Earl for what he has said. I do not wish to add one syllable. He recognises that there is something not completely satisfactory about the words as they are. There is difficulty in the words I have put forward. I suggested "lack" because I distinguish between "lack" and "complete lack", but I recognise that he must be advised as to the meaning of "lack" in a clause. To assist him in his consideration of this, I would be most grateful if the Committee would give me leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

1426

§ 3.9 a.m.

§ LORD BEAUMONT OF WHITLEY moved Amendment No. 210: Page 17, line 11, after ("employee") insert "in the course of his employment").

§ The noble Lord said: This Amendment would seek to make fair a dismissal of an employee on the grounds that it was related to conduct of the employee only if that conduct was by the employee in the course of his employment. I will move this very briefly because I cannot believe that the Amendment can really be necessary; but having looked through the rest of this part of the Bill which governs this clause, I have not been able to find a limiting clause which would make it unnecessary.

§ I think the Amendment speaks for itself but perhaps I might give two brief examples. If an employee in a sugar refinery campaiged, in his own time, for the nationalisation of sugar, no doubt his conduct would seem reprehensible from the employer's point of view but it would have nothing to do with the way he discharged his job and it would not be a fair ground for dismissal. Equally, if the employee were sleeping with the managing director's daughter, that would not be any business of the managing director qua managing director, and it would be no reason for the dismissal of the employee, It seems to me that this is a necessary qualification, and I would be very interested to hear the Government's reply. I beg to move.

§ LORD BROWN
This Amendment is quite important. I would like to relate one very brief experience I had some years ago. Scotland Yard informed the personnel manager of the company of which was the manager that one of the employees was indulging in serious misconduct: in fact, he was running a brothel in his spare time. This was reported to me by a long-faced personnel manager, who said "We shall have to dismiss this man immediately". I was about to agree when I suddenly realised there might be more to the matter than met the eye, and I asked if he were a good workman. The personnel manager replied, "Unfortunately, he happens to be one of the best moulders in our foundry." So I said, "Then we shall not dismiss him, because we axe confuting our decisions over employees to employees qua employees, and the 1427 fact that he is using his spare time for some nefarious purpose has nothing to do with us. The law will obviously catch up with him."
I have said enough in support of this Amendment. I think these words should help to clarify something which is often unclear to employers. I can assure your Lordships that I have heard of many cases of people being dismissed from their employment on grounds that had nothing to do with their work as employees.

§ LORD GARDINER
I would suggest there is an additional feature which is apparently not covered by the Bill as drawn: the time when the conduct took place is not limited to the period of employment. We have in our minds at present the case of a teacher who did something which, reprehensible or not, was done before she became a teacher; and any employer knows that an employee cannot be dismissed for something which he did before the employment started. Where there is a duty to disclose something, it may be that you can dismiss an employee for having deceived you into employing him; but you cannot dismiss him for misconduct which occurred before the employment began. The Amendment proposed would cover this point.

THE EARL OF BALFOUR
I am a little worried about this Amendment, because it would possibly involve time. If the phrase "in the course of his employment" were inserted instead of this particular sentence, it could put an employee in a rather difficult position—if he were on strike, for example, or withholding his labour for some reason. I feel that in the actual legal wording it might have a very different sense from what the noble Lord said when he moved the Amendment.

§ LORD DAVIES OF LEEK
But he has to be a party to that action taken against him unless he is a member of a registered union, does he not?

EARL JELLICOE
I think we all agree that, normally speaking, an employee's conduct when not at work should not affect his employment or provide grounds for dismissal. I am sure that that is common ground to all of us. But I personally believe that there must be exceptions 1428 to this and that to accept this Amendment, which would rule out those exceptions, would be a mistake.
I would accept quite a lot of what the noble Lord, Lord Beaumont, said. One clearly must be sensible and keep a sense of proportion here. I should have thought, for example, that beating one's managing director at golf outside one's time of employment would not be accepted by the tribunal as a reasonable ground of dismissal, but I was a little less certain about the noble Lord's other example. If, in addition to beating your managing director at golf, you also went to bed with his wife, I am not absolutely certain that the tribunal would not be justified in thinking that that was a reasonable ground. At least there would be an element of incompatibility creeping in to the situation, possibly.
I have been lured on to this slippery slope by the noble Lord, Lord Beaumont, and I should like to return to a rather more serious example of the sort of difficulty which I think we would get into if we were to accept this Amendment. The effect of the Amendment, as I see it, would be to remove even criminal misconduct from the orbit of the fair dismissals procedure. Would this really he reasonable? May I instance a possible example? I will take the example of a bank clerk. If that bank clerk, conscientious and honest in his working hours, nevertheless is found guilty of embezzling the funds of his local bridge club, might not his employers reasonably think that they had been a little bit mistaken about him and that he was not necessarily a suitable person for his position of trust in the bank? I should have thought that this would be the case, and I believe it would be a mistake to import this Amendment into the Bill.
Also, I believe that in this area of judgment and difficulty it is far better for us to rely on the trilogy of the three doors to fair dismissal—capability, conduct and redundancy—allied with this very important subsection (4)(b) of Clause 22; namely, the test of "reasonable". I think this would be a far better way to pursue it than by importing this particular Amendment into the Bill. Although I have thought about this carefully I cannot advise your Lordships to accept the Amendment.

1429

§ LORD DIAMOND
I do not think it is as simple as that, and it just so happens that I say it with some little personal experience in this difficult field. I am not saying that it is very easy to find words which would cover all the cases, and the noble Earl of course picked on the most obvious case which we should all recognise, of an employee's conduct outside business hours being such as to make it clear to any employer that he was the kind of person who should not continue to be employed in that particular job. Anybody who has responsibilities of this kind is always on the look-out to see whether his employee, who has particularly heavy responsibilities, is able to carry them, as judged by his over-all actions in this particular area. But that would not necessarily mean that other kinds of offence should automatically be taken into account and be used as a ground for fair dismissal. Indeed, if the words are left just as they are, with "conduct"—I know the noble Earl has undertaken in relation to the possible use of the term "misconduct" to reconsider this term, or whether some definition should be put in—I myself do not think it is satisfactory, because it is left wide open for any kind of personal conduct outside the sphere of employment to be regarded as relevant. When I said "some other kind of offence", I was thinking of—

EARL JELLICOE
Would the noble Lord forgive me, I do apologise. "Relevant" perhaps, but not necessarily "reasonable". There is the test of what is reasonable.

§ LORD DIAMOND
There is the test of what is reasonable, but in trying to find out what is reasonable under the Act, those who are making this decision under subsection 4(b) must have regard to what is in this clause, and that is "conduct". It is not limited in any way. So I do not think "reasonable" or "unreasonable", which is always a very difficult thing to rely on, is a complete answer.
When I referred to other kinds of offence, I was thinking of motoring offences. I recollect well the time when I had certain responsibilities in connection with the General Nursing Council, and when one had to deal with disciplinary matters affecting nurses who had been 1430 convicted of stealing or other similar offences, which obviously had relevance; that is to say, their outside conduct had relevance to their capacity to remain on the Register of Nurses. And one can imagine that in certain circumstances stealing had much more relevance than in others. Stealing something from the bedroom of a patient whom the nurse was attending was obviously a far more serious matter than stealing a hat in a store, which, as we all know, may have psychological causes totally unrelated to the capacity to continue to be a good nurse. These are very very difficult matters to decide, and each one has to be decided separately. But certainly we were very easily able to disregard motoring offences—especially when the chairman of the General Nursing Council, a most distinguished matron, came in late because she had been exceeding the speed limit, and she was very shortly afterwards fined and reported to the General Nursing Council accordingly.
So you do get these very difficult cases. I am saying that I do not think it is sufficient to leave an undefined word. There is no definition of "conduct" anywhere in this clause. There is no reference to conduct, whether it is outside or whether or not it relates to the employment. The noble Earl picked on an example of conduct outside which clearly did have some reference to some employment. There may be other cases where it has no reference, and I think one has to be careful, and to protect employees who may have other habits—growing their hair long, or something like that—which perhaps are objectionable to employers but which certainly do not justify dismissal. We have to give some more guidance than is given in sub-section 4(b). I should have thought that the noble Earl ought to undertake to look at this Liberal Amendment, which has been proposed with such force, and if the mover of the Amendment is not satisfied with the kind of reply he gets from the noble Earl I should have thought that this matter ought to be pressed.

§ 3.25 a.m.

§ LORD BEAUMONT OF WHITLEY
I should first of all like to answer the point of the noble Earl, Lord Balfour. I think he will find that his noble friends 1431 will tell him that the kind of situation he put forward is looked after in other pants of the Bill. I would also point out that my Amendment is a narrowing Amendment and not a widening Amendment in any way. Therefore, if what he says is true about what might happen under the Amendment, it would happen all the more under the clause unamended. I should like to take up the point the noble Lord, Lord Diamond, touched on about the bank clerk—the example produced by the noble Earl, Lord Jellicoe. It seems to me that the question of a bank clerk who embezzled the funds of the local bridge club comes absolutely squarely under paragraph (a), related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, which involves trustworthiness in the case of the bank clerk, just as it would involve safe driving in the case of a lorry driver. Where it is not connected with the work, as in the case of the wife of the manager of the sugar factory, whatever one's moral views of the situation, I here part company from the noble Earl on whether it is proper grounds for dismissal.

EARL JELLICOE
I must interrupt. I did not say it would necessarily be proper grounds. All I said is that the industrial tribunal might think it was reasonable.

§ LORD BEAUMONT OF WHITLEY
I accept that, but it does not alter the point all that much. I should like to take up the point made by the noble Lord, Lord Brown. I am Chairman of the Albany Trust which, as most of your Lordships will know, is a charity to do with research and counselling in sexual matters, and particularly in homosexual matters. In the files of the Albany Trust are case after countless case of people who have been dismissed from their job because they were found to be homosexuals, not necessarily because they had broken the law of the land at the time when the law of the land was different from what it is now, but just because they were found to be this. This is not a minor Amendment that we are putting forward. I think this is an important point and I would sincerely ask the noble Earl whether the Government could not take this Amendment 1432 away and think about the implications, and particularly the implications of the point raised by the noble Lord, Lord Brown, and me about the hard cases. If they cannot, I think I must divide, but I would much rather they looked at it again.

§ THE LORD CHANCELLOR
May I say just a word to persuade the noble Lord he is wrong about this? I should like to recall two things which have happened to me in my life. Many years ago, when things were different and I was able to employ staff, I employed a man in my garden and a girl in my kitchen. They were pretty dotty, but I liked them both. The man in my garden was an Armenian and a militant atheist. The girl in my kitchen, equally if not rather more dotty, was a Roman Catholic and just out of a convent. Outside working hours, and quite legitimately, the man who was in the garden said words that were quite unforgivable about the Blessed Virgin Mary. It was obvious that this was not in the course of his employment, and it was equally none of my business in one sense, but it became clear to me that I should have to lose one of them because of the relations which developed between the two. I did in fact dispense with the man in the garden. I do not think I was unreasonable. The situation had become such that I had to lose one of them.
Some years ago I used to farm. I had only a very few employees—I am not a grand employer like noble Lords opposite who go into thousands—I had four or five people. One of these was a very good cowman who had a nice little wife and several nice little children. He lived in a cottage on my estate, and everybody was very happy until the following happened. Outside hours he came to me and said that he was going. When I asked him why, it emerged that outside hours one of the other employees who was unmarried was making constant advances to his wife. Again I had to choose which one I was going to lose. They were not going to stay in the same employment. It was none of my business of course, whether the young man was successful in his pursuit of the young lady or not, but as a farmer I felt that I was entitled to choose between them. It had nothing to do with their capability; it did have to do with the conduct of 1433 one of them. If I had been the husband of Lady Chatterley I am bound to say I should have got rid of my gamekeeper.
But the conclusion of all this, and what I am trying to persuade the noble Lord about, is that it is a little more difficult than he thinks to decide what is in the course of employment and what is not. What we have done in the Bill is to say that conduct counts. The tribunal has to take it into account, but it must also see that the employer acts reasonably; he has to justify himself by the standard of reasonableness in the face of things which happen. Human relationships in employment are infinitely various and you simply cannot lay it down, as you can in a big factory, that what goes on outside the factory gates is no business of anybody. When you are dealing in complicated human relationships like employment, you have to take into account what is reasonable between decent people, and I do not have any qualms about the decisions that I made.
The other point that I want to put to the noble Lord is this, and it has no relation to any experience of mine. This problem arises only in cases where the employee has not behaved so badly that he can be dismissed out of hand, as he would be if he tried to blow up the house in which he was working. Also, it does not arise where the employer is so unreasonable that he tries to get rid of an employee without notice, because in either of those cases the case is plain. It occurs only in one of the grey areas where the employer gets rid of the employee after having given him adequate notice. I really think that the noble Lord has not quite plumbed the complication of human relationships when he simply says that if it is not in the course of employment it does not count.

§ LORD BROWN
I want to do something very dangerous and challenge the logic of a Lord Chancellor. The noble and learned Lord told the story of the Armenian gardener and the Roman Catholic girl who was helping in the home, and he implied that he had dismissed the Armenian gardener because he had said improper things outside his terms of employment to the girl servant. I am going to suggest to the noble and learned Lord that he did nothing of the sort. He would only have discovered the gardener had said this by reason of 1434 the conduct of the Armenian gardener and his relationship with the servant girl at work, and the reason the noble and learned Lord dismissed the Armenian gardener was because of their relationship at work and not because of what the man said outside.
When noble Lords rose to answer this Amendment I expected them to make a quite different defence of their position. I am going to come clean. I am not a lawyer, but I discussed this point with lawyers many years ago and I was informed that if one was talking about the conduct of an employee, the law would interpret that as being conduct in the role of employee. If that is right, despite what has been said from the Government Benches noble Lords are stuck with the meaning that I and the noble Lord on the Liberal Benches put. The only reason why I supported the Amendment was because it made clear what was conveyed to me as a legal point, which was recognised anyhow, and I wanted to see it made still clearer. So I really think that noble Lords on the opposite Benches are wrong on this point, and that you cannot possibly conceive of penalising somebody by dismissing him from a business for acts which took place outside his time of employment and for which the law may have its own special penalty. In other words, you would be indulging in double penalties on a person, and it is not the job of an employer to penalise somebody for breaking the civil law. It is the job of an employer, if necessary, to penalise somebody for misbehaving as an employee, and there, I submit, the matter should rest. It cannot go outside that.

§ LORD SHACKLETON
I think that once again we are on one of the most difficult subjects imaginable. I was interested in the noble and learned Lord's experiences as an employer of five people, having been, without wishing to be boastful, responsible on the personnel side for about 16,000 people. I have found, however, that you get the same sort of situations there as you do when you employ an Armenian gardener and an innocent Roman Catholic maid. I cannot remember the story. I got slightly muddled up by the reference to Lady Chatterley and the gamekeeper. There may be some noble Lords who will recall an earlier debate when a noble Lord whose son, or 1435 at least a relative, is now with us proposed banning all the works of D. H. Lawrence and Lady Chatterley's Lover; and one of the noble and learned Lord's most brilliant speeches in an awkward debate was when he re-wrote the end of Lady Chatterley's Lover
While I do not go the whole way with the noble Lord, Lord Beaumont, on circumstances which would be regarded as affecting the employee's suitability, and taking into account also the fact that at the moment there is really no protection and that this is an attempt to impart some protection, I am bound to support the views expressed by my noble friend, Lord Brown, that this particular paragraph (b) is not good enough at the moment. Of course the noble Lord has on one occasion or another been a Minister-I believe of large Ministries, or perhaps he has always been at Ministries which can almost be put, as he once said, into a bus; and whether they were Crown employees or not, the fact remains that one finds the most extraordinary reasons why people's employment should be terminated. For instance, I used to suffer a great deal when I was Air Force Minister and was asked on occasion to approve calling on an officer to resign for misconduct because he was involved in a divorce. I knew so many senior officers in the Air Force who had achieved great status and great position but whose lives were of an even more dubious kind that I found it very difficult, as a simple act of justice, to concur in such attempts to dismiss valuable officers; but it was constanly argued that if somebody was involved in a divorce then it must bring discredit on the organisation, whether it be the Air Force or a firm, and that therefore the employment had to be terminated in some way.
This was ludicrous, absolutely ludicrous; and what I should hope the Government might now suggest is that even if "in the course of his employment" is too restrictive, there should be some way in which it is more directly related. You see, sub-paragraphs (a) and (b) are separate; and, furthermore, I do not necessarily trust the reasonableness of a tribunal in deciding what is reasonable behaviour in these matters. Some might take a very liberal view, like the noble 1436 Lord, Lord Byers; some might take views which would perhaps be similar to those of, say, my noble friend Lord Longford in a matter of this kind. I am trying to find extremes in the permissive spectrum. There is nothing personal intended. I think that we ought to press the Government on this unless they undertake to try to find a form of words related to the conduct of the employee in a way which affects his capabilities or qualifications. There needs to be much less of an invitation to sack somebody for what he did, whether at work or not. I have known many cases where attempts have been made to sack people for totally irrelevant reasons and where senior management has had to move in to prevent some petty act almost of vindictiveness against an individual. I think we ought to get an undertaking from the Government to look at this and try to improve it or we ought to test this in a Division. I should certainly support the noble Lord.

§ 3.42 a.m.

§ VISCOUNT CALDECOTE
I have a good deal of sympathy with noble Lords opposite. The noble Lord, Lord Shackle-ton, is trying to achieve that dismissals under subsection (c) should be reasonable. He did not suggest any form of words. He is trying to ensure that employees should not be dismissed unreasonably. As has already been pointed out by my noble friend, Lord Jellicoe, that is covered by subsection 4(b) later in the Bill. I think the noble Lord is trying to achieve the impossible-an improvement on 4(b).

§ LORD SHACKLETON
It is much simpler than that. Just leave out entirely the subsection relating to the conduct of the employee. We are saying that the Government ought to do better than they have done, and try to find the right words.

§ VISCOUNT CALDECOTE
They are there in 4(b)

§ LORD BEAUMONT OF WHITLEY
I do not think that this is so because the noble Lord, Lord Shackleton, did say that he did not necessarily trust a tribunal to decide what is reasonable in this sort of situation. And I think that this is true. I would trust tribunals to 1437 decide upon the conduct of employees as employees. I would not trust them to decide about the conduct of an employee who was sleeping with the managing director's wife. And after what the Government Front Bench have said, I would not trust them on that, either. There are obviously widely differing views on this. It is a situation in which there are very real problems and always quite a lot of victims. Although I see the force of what the noble and learned Lord has said, I still think that it does not begin to outweigh the large number of cases in which, because of the tribunal's general view of the mores of their time, they might be tempted to think it was reasonable to dismiss an employee for something which had nothing to do with his employment.

§ 3.52 a.m.

§ LORD DIAMOND moved Amendment No. 211:

1438

§ The noble Lord, Lord Brown, implied in something he said that we might in some way underline the word "employee". He has suggested to me that perhaps we could relate it to the conduct of the employee qua employee. Perhaps the Government might consider this. I suspect that they would find it more acceptable. If they would say that they would like to look at this again, I should be more than grateful; if not, I suggest that we do not waste the time of the Committee further, but move to a Division.

§ 3.45 a.m.

§ On Question, Whether the said Amendment (No. 210) shall be agreed to?

§ Their Lordships divided: Contents, 26; Not-Contents, 75.

1437

CONTENTS
Ardwick, L.	Champion, L.	Hoy, L.
Barrington, V.	Davies of Leek, L.	Lee of Asheridge, Bs.
Beaumont of Whitley, L. [Teller.]	Delacourt-Smith, L.	Llewelyn-Davies of Hastoe, Bs.
	Diamond, L.	Ritchie-Calder, L.
Bernstein, L.	Donaldson of Kingsbridge, L.	Shackleton, L.
Beswick, L.	Gardiner, L.	Stow Hill, L.
Blyton, L.	Garnsworthy, L. [Teller.]	Taylor of Mansfield, L.
Brown, L.	Greenwood of Rossendale, L.	Wells-Pestell, L.
Burntwood, L.	Henley, L.	White, Bs.

NOT-CONTENTS
Aberdare, L.	Elliot of Harwood, Bs.	Mowbray and Stourton, L. [Teller.]
Aldenham, L.	Exeter, M.
Amherst of Hackney, L.	Falkland, V.	Moyne, L.
Balfour, E.	Ferrers, E.	Nugent of Guildford, L.
Bathurst, E.	Fisher, L.	Pender, L.
Belhaven and Stenton, L.	Gisborough, L.	Penrhyn, L.
Belstead, L.	Glendevon, L.	Rankeillour, L.
Brabazon of Tara, L.	Goschen, V.	Redesdale, L.
Brecon, L.	Gowrie, E.	St. Aldwyn, E. [Teller.]
Caldecote, V.	Gray, L.	St Just, L.
Chelmer, L.	Hailes, L.	St. Oswald, L.
Clinton, L.	Halsham of Saint Marylebone, L. (L. Chancellor.)	Sandford, L.
Cork and Orrery, E.		Sandys, L.
Cottesloe, L.	Halsbury, E.	Selsdon, L.
Craigavon, V.	Hanworth, V.	Sempill, Ly.
Cranbrook, E.	Harvey of Tasburgh, L.	Strange, L.
Croft, L.	Hives, L.	Strathcona and Mount Royal, L.
Cromartie, E.	Hood, V.
Daventry, V.	Jellicoe, E. (L. Privy Seal.)	Sudeley, L.
De Clifford, L.	Kemsley, V.	Suffield, L.
Denham, L.	Kinnoull, E.	Swansea, L.
Drumalbyn, L.	Lansdowne, M.	Teviot, L.
Dudley, E.	Lothian, M.	Thorneycroft, L.
Ebbisham, L.	Lyell, L.	Tweedsmuir, L.
Eccles, V.	Massereene and Ferrard, V.	Vivian, L.
Effingham, E.	Mottistone, L.	Windlesham, L.

Resolved in the negative, and Amendment disagreed to accordingly.

1438

§ Page 17, line 22, after ("(1)") insert ("(a) or (c)")

§ The noble Lord said: This rather cryptic Amendment relates to Clause 22, which provides that dismissal shall be regarded as unfair if the employer 1439 exercises the rights conferred by Clause 5(1) of the Bill. In that subsection there are three rights, of which (a) and (c) require no comment, but (b) does. Paragraph (b) is the right to be a member of no trade union. This is where we get to the closed shop position.

§ As the Bill was originally drawn, the clause we are now considering would not have needed amending in this one respect, but as the Bill has been amended so as to detract up to a point from the right in Clause5(1)(b), where what has been considered is membership of a union in an approved closed shop, then this provision in Clause 22 requires to be amended. The simplest way of amending it is to make it clear that the dismissal involved under subsection (3)(a) should relate to (a) and (c), the two rights in Clause 5, but not to (b)—namely, the right in connection with membership of no union. I hope that I have made clear that the Amendment seeks to bring this part of the Bill up to date in relation to the new provisions affecting approved closed shop procedures. I beg to move.

§ LORD DRUMALBYN
I am not sure that the noble Lord is quite right here, because the right to belong to no trade union is preserved except in the case of those approved closed shop agreements which we were discussing when we started business. In those cases, of course, the right to belong to no trade union does not exist. That is one of the sacrifices that is made in approved closed shop arrangements. So I do not think the noble Lord's reason is right.

§ LORD DIAMOND
It is of course late, or latish, and no doubt I may have expressed it badly or not expressed it sufficiently clearly; or possibly because of the hour the Minister has not fully understood the point. I think I had better go over it again. Clause 22(2) says, if I may turn it into shorthand, that for the purpose of the Act the dismissal shall be regarded as unfair if the reason was that the employee had exercised rights conferred by Clause 5(1). Merely because he had exercised those rights, it would be unfair to dismiss him. But it is now the case that it is no longer an unfair industrial practice to dismiss an employee where you have the closed shop procedure. It was right as the Bill was origin- 1440 ally drawn, but it is no longer right. Therefore, this provision should be restricted to the other parts of those rights. Clause 5(1) has three rights, and one of them, the right to belong to no trade union, is no longer unaffected and is limited. I should have thought that one had to make the appropriate consequential provision here. It goes perhaps a little wider, but not inappropriately wider.
Therefore, I think we are on fair ground in saying that instead of the whole of Clause 5(1) we ought to limit this to cases where Clause 5(1)(a) and (c) apply. I hope that with that second explanation the Minister will feel he has got something that he can either accept or look at and consider at a more appropriate time and let us have a reply later on.

§ LORD DRUMALBYN
I certainly do not feel I can accept this Amendment. I cannot lay my hands on the actual provision which I think limits this provision in this respect. Certainly I will look into it and, if necessary, we can refer to it at the next stage.

§ LORD DIAMOND
I recognise that there is either an Amendment or some other part of the Bill where there is the kind of provision that he has referred to. Nevertheless, this would be inconsistent with the Bill as it now stands if we left it simply at Clause 5(1). The Minister has been good enough to say that he will look at it, without any further commitment than that, and that is all that one can reasonably ask at this hour of the morning. On the basis of that courteous promise, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 4.2 a.m.

§ LORD DIAMONDmoved Amendment No. 212:

§ Page 17, line 23, leave out subsections (3) to (6) and insert— ("(3) Where it is shown that the reason or principal reason for the dismissal was a reason falling within subsection (1) of this section, the dismissal shall not be held to have been unfair unless the tribunal is satisfied that, in the circumstances of the case, the employer acted unreasonably in dismissing the employee. (4) Where it is shown that the reason or principal reason for the dismissal was that the employee was redundant, then if it is also shown:

(a) that the circumstances constituting the redundancy applied equally to one or more 1441 other employees in the same undertaking who held positions similar to that held by the claimant and have not been dismissed by the employer, and
(b) that the reason (or, if there was more than one, the principal reason) for which the claimant was selected for dismissal was a disqualified reason,

the dismissal shall be held to have been unfair; but if the facts specified in paragraphs (a) and (b) of this subsection are not shown, the dismissal shall not be held to have been unfair. (5) In this section, in relation to an employee:

(a) the reference in subsection (1)(a) to capability shall be construed as a reference to capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and
(b) any reference to redundancy or to being redundant shall be construed as a reference to the existence in relation to the employee of one or other of the facts specified in paragraphs (a) and (b) of section 1(2) of the Redundancy Payments Act 1965.

(6) In this section it shall be held to have been an unfair dismissal if the reason for the dismissal was:

(a) that the employee was, or proposed to become a member of a trade union, in accordance with section 5(1)(a) of this Act;
(b) that the employee was not, or refused to become a member of a trade union, which was not an indedependent trade union;
(c) that the employee took part in the activities of such a trade union as is mentioned in paragraph (a) of this subsection or acted in the capacity of a worker's representative or sought election or appointment as such a representative;
(d) that the employee made a complaint or took part in any other action against the employer on the grounds that the employer had contravened an enactment or had contravened the provisions of an instrument having effect by virtue of an enactment;
(e) that the employee professed or practised, or did not profess or practise, a particular religion or religious doctrine, or belonged to or otherwise upheld the aims of, or did not belong to or otherwise uphold the aims of, a particular political party, or upheld or did not uphold a particular political doctrine;
(f) that the employee is of a particular colour, race or ethnic or national origins;
(g) that the employee is a man, or that the employee is a woman, as the case may be;
(h) that the employee was a married person, or an unmarried person, or a widow or widower or a divorced person, as the case may be.

§ The noble Lord said: The Labour Government's Bill had its First Reading 1442 in another place shortly before the recent General Election-and I mean General Election,— not the municipal elections which have taken place recently. They have had a very different result, and I hope that noble Lords opposite are not feeling too disappointed or too worried, even when they consider what has happened in Bexley. But that is not one of the items mentioned in Clause 22, or my Amendment, so I hurry to return to Clause 22 and this Amendment, which constitutes a write-in into the Bill of the provisions in the Labour Government's Bill which we think were slightly better than the provisions already contained in the Bill before us. Those in the Bill before us are good up to a point, but they do not go far enough.

§ I should like to draw attention to subsection(6)(e), (f), (g) and (h). Those are sensible provisions which I do not think are to be found anywhere, either explicitly or implicitly, in the provisions in the clause before us. They are sensible provisions. Take, for example, paragraph (f): that the employee is of a particular colour, race or ethnic or national origins;".

§ That is a provision which I am sure we should accept immediately, and it ought to be included. If your Lordships have a turn of mind for it, subsection (6)(g) is not without relevance; namely: In this section it shall be held to have been an unfair dismissal if the reason for the dismissal was(g) that the employee is a man, or that the employee is a woman"—

§ and here the important words come— as the case may be;".

§ That, I am sure, is a gem which ought to be incorporated as frequently as possible in any Act we happen to be considering.

§ Certainly paragraph (h) is a case which harks back to the discussion we recently had and which showed not only how wise the Liberal Party was to introduce its Amendment but how necessary it is to have guidance as to what is sensible conduct in dismissing employees. Because if we do not have it, employees will to dismissed for all sorts of irrelevant and personal matters. That is covered in paragraph (h). So without going into the matter in more detail, I 1443 think these provisions, which broadly include those already in the Bill but which in addition include others we want to see, are considerably superior to those in the Bill; therefore, I beg to move.

§ 4.6 a.m.

EARL JELLICOE
These Amendments seek to import into Clause 22 a great range of disqualified reasons for dismissal. We have only one, the one which we have just discussed: dismissal for exercising the basic rights in Clause 5. I must make it clear at the outset that we are opposed to importing this battery of disqualifications into the Bill, since we think it will be extraordinarily difficult to put together an exhaustive list of reasons for dismissal which should be regarded specifically as unfair. There will always be something which escapes even the sharpest eye of the most skilled draftsman. In any event, we believe that such a list—and I do not quarrel with what is on the list—is totally unnecessary, because it is my belief that a tribunal would be bound to find that blatant discrimination on grounds such as race, colour, sex, marital status, religion or political belief was unfair.
Apart from this, if we were to walk the path which the noble Lord has very pleasantly invited us to walk with him we should be importing a vast complication into the Bill because the list of proposed disqualified reasons would have to be qualified in their turn by a complicated series of exceptions-to cover, for example, situations in which it was necessary for the employee to be of a particular religion, political persuasion or sex. If I might take an example, I think most noble Lords would agree it is not unreasonable to employ Indians in an Indian restaurant or Roman Catholics in a Roman Catholic school, or Socialists at Transport House, or Tories at Tory Central Office, or Liberals at Liberal House. If in such situations the employee changed his political allegiance, or religion-or the Indian restaurant changed to a Chinese restaurant because of a change in the eating habits of the clientele-it would surely not be unreasonable for the employer to dismiss the employee. But no such provision is made in the proposed Amendments.
I find that a little surprising because in Mrs. Castle's Bill there was, in fact, 1444 just such a provision, and a very elaborate one it was, because there was a clause there (I think Clause 36 of the Bill) reading: It shall be held to be an unfair dismissal if the reason for the dismissal was that the employee professed or practised or did not profess or practise a particular religion or religious doctrine or belonged to or otherwise upheld the aims of or did not belong to or otherwise uphold the aims of a particular political party or upheld or did not uphold a particular political doctrine unless it has been agreed that the employee must be a person who professes or practised a religion or religious doctrine or as the case may be a person who belongs to or otherwise upholds the aims of a political party or upholds a political doctrine. I have quoted the words in the last Government's Bill, and it shows the area of complication into which we shall be irretrievably enmeshed if we accept the noble Lord's Amendments. If it is necessary to have this complication, then of course let us embark on that particular boat, but in our view it really is not necessary. The reason is that under the Bill's provisions the tribunals which will be dealing with these unfair dismissals will be able to determine, in accordance with equity and the substantial merits of the case, and in the light of all the evidence and arguments, the reason for dismissal, and whether or not the employer acted reasonably in regarding that reason as sufficient to justify dismissal.
I should like to make one thing absolutely clear: that is, that the provisions of the Bill before us do not in any way prevent an employee who has been dismissed by his employer as redundant, for example, but who in fact considers that the real reason was because of his colour or religion, from making a complaint of unfair dismissal to the tribunal. It will be for the tribunal, if it establishes that the reason for dismissal is something other than redundancy to determine whether it was a good reason and whether or not the employer acted unreasonably. I have no doubt whatsoever, where there is blatant discrimination covering any of these matters in the noble Lord's Amendments, what the tribunal's decision would be. I hope I have made it clear that I am not against these particular Amendments in any one wit. Their pedigree is of the highest degree of respectability, via Donovan, via the I.L.O. But I do say in substance and in practice that the Amendments will 1445 add no enforcement to the provisions of the Bill or to the safeguards for the employee. What they do add is a mountain of complication and possibilities of real muddle. I cannot advise your Lordships to accept these Amendments.

§ LORD BROWN
I have a great deal of sympathy with this Amendment, but I hope my noble friend on the Front Bench will withdraw it, not because it goes too far, but because it does not go far enough. I want to point out that had Amendment No. 210 been passed it would effectively have done virtually all that this Amendment seeks to do, in a general way, and that would not have had the effect that this Amendment has of picking out particular acts of an employee in his personal role, and thereby leaving a lot of gaps between them which might have been the cause of dismissal because of acts not in his employee role. I hope that, as a result of the long debate we had on Amendment No. 210—and I hope Ministers and officials will read it carefully—the ways of righteousness will dawn upon them at Report stage. I cannot overstress the importance of these Amendments. I beg noble Lords opposite to realise that quite a large number of unofficial strikes are caused simply on the ground that people are dismissed for acts out of their role of employee. I hope that we will be able to get back to that form of Amendment rather than pressing this one, and on those grounds I hope my noble friend will rot press this Amendment.

§ LORD DAVIES OF LEEK
There has been much talk in the Press, in the other place and everywhere else about this Bill being particularly in keeping with the United Nations Convention on Human Rights and the right of an individual not to belong to a trade union, but I do not want to upset anybody on the Front Bench opposite, because they have been very helpful. Perhaps they are thinking of trying to incorporate something which was thought of in Amendment No. 210. Behind my noble friend's thinking, and indeed that of all of us, including the noble Lord who has just spoken, there is this idea of human rights being still protected. Can we find something for this?

§ LORD DIAMOND
I am not very happy with what the noble Earl said about the Amendment, but I am grateful 1446 to him for saying that it had the best possible pedigree. All these provisions are very sensible ones and when one is considering a dismissal which may affect a man's livelihood, the place where he lives and his capacity to use his skill in a particular way, these are fundamental thing. The fact that the noble Earl thought this was lengthy and detailed and to complete it might be even more so meant that he thought one should not take as much trouble as I think should be taken in protecting the rights of the worker against unfair dismissal. I am prepared to take any amount of pains about that, and we may find over the course of years that it will be necessary to particularise and that further legislation may be necessary. Therefore I am bound to say that I do not share the view of the noble Earl that we can get at it in a shorter form. If we could do so I should be delighted.
The noble Earl suggests that by putting it in a shorter form this is leaving it to the good sense of the tribunal, which will do everything that he thinks it ought to do in reaching reasonable conclusions. I can only repeat that the tribunal will need guidance. That is quite clear. It is also clear from what the noble and learned Lord said about certain dismissals which he had himself effected that he might have different views on whether those dismissals corresponded with best modern practice. If the noble and learned Lord were himself a member of a tribunal, it would be a very high-powered one and he might be assisted if some guidance were laid down in this way by indicating—which is what the law does here—what is the best possible practice.
I am bound to say I do not regard his answer as satisfactory, because we do not make any advance either as regards incorporating in the Bill details which relieve the tribunal of its responsibilities or of helping the tribunal by giving it guidance on what is the best current practice. I do not think I would seek to ask your Lordships to divide at this present stage, because there are many words here, some of which might reasonably be objected to. I would therefore propose to read very carefully what the noble Earl has said and come back to it at a later stage, making it clear to him that we do not see eye to eye on this issue. This is a pity, because we are after the same thing, and I recognise that. I repeat 1447 my gratitude to the noble Earl for what he said earlier. I do not think it right to withdraw the Amendment, but I am not asking my noble friends to pursue it to a Division at this stage.

§ VISCOUNT MASSEREENE AND FERRARD
If this Amendment were accepted would it not mean that a factory could be disrupted by a group of militant Maoists or Communists and it would not be possible to dismiss them? That would seem to be quite wrong.

§ LORD DIAMOND
I do not want to spend too much time on this. May I merely say that in the days when I was an employer—and I regret that my experience as an employee is nil—if any-body had suggested to me, when I had responsibilities in a particular firm, that a good workman who did his job well but was a well-known Communist ought to be dismissed, I would have rejected the idea with scorn.

§ On Question, Amendment negatived.

§ LORD DIAMONDmoved Amendment No. 213: Page 17, line 33, after ("(1)") insert ("(a) or (c)").

§ The noble Lord said: I move this Amendment merely for the purpose of saying that it relates closely to a previous amendment which the noble Lord, Lord Drumalbyn, said he would be good enough to look at, at a more convenient hour of the day; if he will be good enough to say that he will include this Amendment in his review for the same reasons, I need not bother your Lordships further. I beg to move.

§ LORD DRUMALBYN
I will certainly do that, but in the meantime I have been able to find the provision which I was trying to find. It is subsection (2) of clause 16, which says: Where an approved closed shop agreement is for the time being in force, the following provisions of this section shall have effect notwithstanding anything in section 5(1)(b) of this Act. That is as far as the approved closed shop is concerned. The following subsections make alternative provisions to clause 5(1)(b) and effectively take that out so far as the approved closed shop is concerned; but I would also say to the 1448 noble Lord that that really is the very tip of the pinnacle. The vast majority of cases will come under clause 5(1)(b) because in the vast majority of cases the right contained in that clause, to be a member of no trade union, ought to be capable of being protected. The employee or worker ought to be protected from dismissal for exercising that right.

§ LORD DIAMOND
I thought we were starting off on the basis of a difference of view about the provision. I think we are now coming to a difference of view about the substance, but it would be wrong of me to reach a conclusion without carefully considering what the noble Lord has said. I will do so and we will return to the matter at a later stage. I take it that the noble Lord will still be good enough to look at this in connection with the other amendment and on that basis I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 4.25 a.m.

§ LORD DIAMONDmoved Amendment No. 214: Page 18, leave out lines 14 and 15 and insert ("skill or aptitude.")

§ The noble Lord said: The effect of this Amendment is to leave out the words: capability assessed by reference to health or any other physical or mental quality,

§ from Clause 22(6)(a) and instead to insert the words, "skill or aptitude." One is concerned here with an individuals health when he is perhaps, as I am, approaching middle age at the age of nearly 65, and perhaps getting a little more tired a little earlier than he had done when he first started his working career.

§ We do not take the view that this should be regarded as closely as it would be if it were included in subsection 6(a). Inasmuch as it is almost certain that whoever replies will remind me that these words were in the Labour Government's Bill, let me say straight away that they were in the Labour Government's Bill. There was certain difficulty about them before they went in the Bill, and it is conceivable that, had that Bill been debated, the words would have found the same criticism as the words in the Bill are now finding. And I hope that the well-known capacity of the Labour Government to 1449 have second thoughts, and to go from wisdom to greater wisdom, will be reflected in the capacity of the present Government to have second thoughts now in relation to these words.

§ LORD BROWN
Any psychologist would inform the Government that skill and aptitude are a function of health and physical or mental quality, so that the words "health or any other physical or mental quality" are quite unnecessary. For that reason I support the Amendment.

THE EARL, OF BALFOUR
If I may give one example of something which can happen to the very best of us, a person may he suffering from failing sight, or he may in all good faith have been employed in a position and then find that he is, for example, colour blind to red and green. I feel that this sort of thing can sometimes affect a person's position.

§ LORD DAVIES OF LEEK
If a man is in a job, surely it would not be left until he is about 60 years of age before finding out that he is colour blind. For any kind of job where that aptitude is needed, there are generally medical tests to find out. But I want to support this Amendment, because in these days youth is apotheosized everywhere. Anybody of the age of 45, 50 or 60 applying for jobs today is liable to he brushed aside. They do not look at the skill and aptitude, and years of experience are being thrown away through looking a little too much at health factors, and a little too much sometimes at age. Particularly is this true in country crafts, and particularly is this true in agriculture—and skill and aptitude there, when a man is allowed to work at his own pace, is another thing. He does not do a foolish thing like this, going on all night long and gabbling through one of the most important Bills before the British people for the last one hundred years. We are just gabbling through it in both Houses, because it is needed in the euphoria of the Conservative victory, to plunge the country into prosperity. I am sorry for that slight diversion—the rest of it was not a diversion; that little bit was illustrative. I hope that, some attention will be paid to this, because I think here at last this evening we can have another nice little speech from the noble Earl opposite.

1450

EARL JELLICOE
If it is time for a nice little speech, I will embark on it. I have been a little puzzled by one thing which the noble Lord, Lord Diamond said: that he assumed I would remind him that the clause which he is seeking to amend, or the subsection, did in fact have that best of all possible pedigrees in that it was there, in all its virtue and integrity, in Mrs. Castle's Bill; and so it was. But he said, of course, that when it had been looked at very carefully within the Labour Party and had gone through Parliament, doubtless these changes would have been made. I must point out to the noble Lord something which I am sure he must be aware of: that in Amendment No. 212, which we have just discussed, precisely the same thing is also to be found. Subparagraph (6)(a) refers to precisely these same words: …capability assessed by reference to skill, aptitude, health or any other physical or mental quality: I am rot perhaps unduly teasing him with what must have been a temporary oversight.

§ LORD SHACKLETON
This is one of the reasons that I, for one, was very disinclined to support the previous Amendment.

EARL JELLICOE
More seriously, I do not think that the Amendment is necessary, because I believe that there are times when a deterioration of some-body's health does render him unsuitable for the type of employment in which he has been engaged. For example, a steeplejack, as he advances in years, may suddenly become liable to fits of vertigo. Clearly he is not going to be suitable then for employment as a steeplejack.
I believe that some such provision is necessary. It is desirable that we should be safeguarded against abuse here, and I believe that our familiar old clause, Clause 22(4)(b), which I have cited before—I dc not want to lean too heavily on it—does afford us the essential safeguard. It gives us the safeguard to cover, for example, the type of case which some of us may have had in the back of our minds: where an employer takes advantage of an employee's absence, through sickness, to get rid of him for a reason which has nothing to do with his capability. I believe Clause 22(4)(b) to be an 1451 adequate safeguard here. I believe that this provision is unnecessary; I believe that there are adequate safeguards and, apart from this, I rely upon the brilliant and recent pedigree of this particular provision in asking your Lordships not to accept this Amendment.

§ LORD DIAMOND
I am certainly not going to seek to press this to a Division, but I am going to seek to appeal to the noble Earl to reconsider what he said in certain respects. Subparagraph (6)(a) defines "capability" as meaning: capability assessed by reference to skill, aptitude, health or any other physical or mental quality: The noble Earl will by now have got my point that although it may well be that Clause 22(4)(b) is a measure of protection, the tribunal there envisaged should have some guidance. The guidance which the Bill is giving is: any other physical or mental quality; It really is inviting the tribunal to regard a dismissal by an employer as reasonable if there was any physical or mental diminution, or situation, which could be pointed to.
I do not think a would be right to leave this clause as it stands, even if the noble Earl is relying on the protection of Clause 4(1)(b). I have said, time and time again, that there ought to be some guidance and here we have something which can be regarded only as guidance of the harshest possible kind. The Bill does not use the words "any other major physical or mental deterioration", but states instead: any other physical or mental quality". It could be a most minor problem, a temporary disability in a hand or a wrist or an arm or a foot. The employer could pick on it if he wanted to do so, or (the employee might feel that the employer could pick on it, because the guidance is as harsh as that. So I do not regard this as satisfactory.
I know that the noble Earl meant what he said earlier, and I therefore hope he will look at this. I shall endeavour to see whether before Report stage we can find any way of trying to meet our anxieties, and of achieving what the Government want to achieve and what we want to achieve, but that I doubt will be achieved by the clause as it 1452 stands. I have explained my difficulty. I do not want to be hostile or time-consuming. I am anxious only to try to evolve machinery under which there will be seen to be fair protection against unfair dismissal.

§ VISCOUNT CALDECOTE
May I ask the noble Earl whether he is satisfied that those on the Register of Disabled Persons are protected satisfactorily?

EARL JELLICOE
I think I shall have to take note of that. I might give the wrong answer if I reply off the cuff. I shall write to my noble friend and will send a copy to the noble Lord, Lord Diamond.

§ LORD DIAMOND
In the circumstances, perhaps the simplest course would be for me to beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 22 shall stand part of the Bill?

§ 4.37 a.m.

§ LORD BROWN
This is a very important clause and, as the noble Earl, the Leader of the House, has said, it corrects a situation which badly needs correcting. But there is a total conception that is missing from the thinking behind this clause. I am not going to vote against it, but I want to get on the record this missing conception. Dismissal has the connotation in most circles in industry of dismissal from an organisation which employs one. I believe that many in this Committee have been thinking of that during our debates. But dismissal may be dismissal from a roll, with the possibility of transfer to another roll inside the same employing organisation. It is very important to differentiate. May I refer to "dismissal" from the organisation which employs one, and "transference" as the other conception which is not referred to here? This may be important if an employee appeals and the case goes to the Court. The Court is only able to consider whether or not he has been unfairly dismissed. If it comes to the conclusion that the dismissal is unfair, then he has to go back to the roll from which he was dismissed; whereas something much more appropriate might have been arranged if the other conception had been introduced, 1453 because he might go back to a roll on which he is happier and where his employer is happier with him. I thought that it was not fair to let this clause pass without drawing attention to what I regard as a rather important matter, and getting it on the record.

§ LORD DAVIES OF LEEK
I agree that this is a vital clause. Nevertheless, I also agree that there is no point in dividing just for the sake of it. But if my Front Bench, in its wisdom, decides that we shall go into the Lobby, I will loyally follow my noble friends in, one of the reasons being that I have looked closely at Clause 22 and the other night I felt I should like to make a long speech about it, but that would be all wrong now. But there is one thing I should like to ask a couple of questions about, and I will try to finish my speech in about a minute; so if anybody is worried, let me assure them that I will not be much longer than that. We are told by the Bill that every worker has the right not to be unfairly dismissed. That is correct. Now if the worker—this is what I read, and it is obvious—feels that he is being dismissed unfairly, he can apply to the I.C. or to the industrial tribunal; and if;' they think his dismissal is unfair, what can they do? We shall see later on, or we shall find out, that they can recommend some compensation, or even reinstatement, but as I understand—I may be jumping ahead a bit, but we have to do this in the case of these clauses to understand some of them—under this Bill they cannot enforce reinstatement. They can compel compensation. We used to have a lot to do with compensation for workers in the old days, but under common law—and here I should like a little advice, because I am a bit out of my depth—I gather that when they draw this compensation it will be modified by the fact that if the man gets a job the wages he has earned during the dispute will be taken off the amount of compensation that the court orders.
My last question is this. I also believe that none of these provisions will apply if the man has not been working in the industry for two years. I should like information on that. If I speak any more I shall just be going around points which have been made pretty well all through the day and now through into the morning, but I think that what I have 1454 said is relevant and I should be grateful for an answer to it.

§ LORD SHACKLETON
One of the difficulties we have been having with this particular Part, Part II, and one of the reasons why it would have been helpful if it could have been another Bill, is that we could have had a Second Reading debate. As it is, we are having a good deal of difficulty jumping from one clause in this sort of sub-Bill, and my noble friend has been asking questions which come up on other clauses but which are clearly relevant to this particular clause. There is no doubt that this is an important and difficult clause, and I should like to say to the noble Earl that I wish some of the noble Lords on his side of the Committee with managerial experience had joined in this debate, because this is going to present real difficulties to managers in industry.
As I say, I will not go on reiterating it, but it would have been much easier if we had the code; we would then know what it would mean. But I agree with what my noble friend Lord Brown has been saying. In a way—and I know this was in our Bill, the Bill that was never debated—we are dealing with a pretty primitive aspect of management, although it concerns dismissals. In the case of the most progressive firms in industry to-day—those with good management and good personnel organisations-their great Problems are on training on career prospect, on career development, on suitable placement and on human relations generally. Of course, there can be any amount of injustice equal to, if not greater than, dismissal in the personnel management of a particular firm. In one way I am even prepared to argue paradoxically—because this is perhaps much more relevant now, when unemployment is so high—that it is a pity we are having to think so much in terms of dismissal.
There are times when it may be the duty of an employer to get somebody to move on, to go into a job for which he is more suited. When we come to the ideal society which bodies like the Industrial Society are trying to create, one will look back on the provision of this particular Bill, this protective Bill, as a sign of the low degree of civilisation which prevailed at the latter part of the 20th century. I hope, therefore, that while we 1455 accept Clause 22 as an advance, we will realise that, important though it is at the present stage of development of our society, there are many wider and more difficult areas still to be touched on. Meanwhile, it will mean a good deal of anxiety for the responsible employer and occasionally some of the less responsible and dishonest ones will get away with certain things despite the intentions of the Government. I must say that if we had a code it would be easier.

EARL JELLICOE
I do not wish to prolong the discussion. I should like to thank noble Lords for their reaction to this clause. I know that it does not cover all the ground which some noble Lords opposite would wish, but I believe it is a very considerable advance. I think I made it plain at the outset of our discussion how shocked I had been to discover how backward we were in the particular area compared with our friends and neighbours. I should like to take careful note of what the noble Lords, Lord Brown and Lord Shackleton, have said. I think that Lord Davies of Leek was casting a bit wide. Compensation is covered in Clause 111 and the question of continuity of employment we shall be coming to shortly. It is in Clause 26.

§ Clause 22 agreed to.

§ Clause 23 [Dismissal in connection with a lock-out]:

§ 4.47 a.m.

§ BARONESS WHITEmoved Amendment No. 215: Page 18, leave out from beginning of line 24 to end of line 10 on page 19, and insert ("shall be an unfair dismissal")

§ The noble Baroness said: This Amendment is a fairly drastic one; it knocks out almost the entire clause. If a slightly light note may be appropriate, perhaps I may be permitted to read a note on this Amendment supplied by one of our trade union colleagues. It says: This Amendment cuts out all the flim-flam verbiage of the Bill and puts things in clear and straightforward language. This rather lengthy clause, as amended, would read: The dismissal of an employee by way of a lock-out shall be an unfair dismissal.

§ This may seem a slightly frivolous Amendment. There are, in fact, reasons 1456 which will be adduced on the subsequent Amendments and by my noble friends on the Question, That the clause stand part, why we are not at all happy about this particular clause. But I must in all fairness admit that I could hardly expect the Government to accept the Amendment as it stands. I think we can at this stage fully understand the exasperation of the colleague who sent in this note on the Amendment. It is just the feeling of the ordinary chap who has to work in the factory, on the shop floor, that this Bill is a peculiarly lengthy and difficult one. And this notwithstanding that I admit that in many ways this section of the Bill includes a number of points which are to the advantage of the worker and which we included in our own Bill. In the circumstances, I think your Lordships will understand why I do not propose to press this Amendment, but I thought you might like to know why it was put down.

§ THE LORD CHANCELLOR
The noble Baroness's anticipations are perfectly correct. Although she did not actually say so, the effect of the Amendment would be to make all dismissals by way of lockout unfair. The view must be accepted that if you allow strikes, lockouts may be rare, but they are, in principle, equally admissible. They are an element in free collective bargaining like strikes, and an attempt to put them outside the law would be just as remote from reality as an attempt to put strikes outside the law. The provisions of this clause seek to be neutral in their effect on the right to lockout. Non-re-engagement at the end of a lockout is protected and the remainder of the clause adapts the provisions of Clause 22 to the special case of a lockout; it being clear that if a worker is not re-engaged when the others are he has, for the purposes of Clause 22, with the necessary modifications, been unfairly dismissed. But the noble Baroness's version that no dismissals by way of lockouts could ever be fair is one that we could not accept.

§ On Question, Amendment negatived.

§ 4.52 a.m.

§ BARONESS WHITEmoved Amendment No. 216: Page 18, line 39, leave out ("or by an associated employer")

1457

§ The noble Baroness said: This is an Amendment on which we feel very strongly, because in our view it would be an extremely unsatisfactory outcome if, following a lockout, an offer of re-engagement were made to an employee, not by his own employer or by a successor to that employer, which might be perfectly reasonable, but by an associated employer. The definition of an associated employer is given at the bottom of page 119 of the Bill, where it is stated: For the purposes of this Act any two employers are to be treated as associated it one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control, …

§ Quite plainly, this opens a very wide field. This provision seems to us to offer very considerable scope for concealed vic-timisation following a lockout. I put it to the Committee that there is already scope in a lockout situation in a very large company if an employer wishes to be vindictive. We can all think of companies with innumerable establishments—I.C.I., Courtauld's and various others spring to mind.

§ I admit that within a single company it would be possible for an employee to be shunted from the place where he had previously worked to some other establishment belonging to the same company. When one notes what has happened with mergers during the past few years one sees that the scope for this is very wide, though I must admit, having four Courtauld factories in my former constituency at this moment, and since Flint has reverted to its Labour allegiance, I might congratulate someone on being sent to Flint. But, seriously, this provision could lead to all kinds of abuses. Nevertheless, one appreciates that within the purview of a single company it would be difficult to prove that there was an element of victimisation. Surely it would be more satisfactory if we extend the possibility to an associate company, which may be associated purely in a financial sense and is under different management, and where the terms and conditions of employment are entirely different and contain things that might be disadvantageous and upsetting to the workers concerned. A lock-out is a condition of emnity between employer and employees and, if the matter is to be resolved, there should be neither actual 1458 vindictiveness nor the appearance of vindictiveness. It is because we believe this subsection as drafted leaves open the possibility of vindictiveness and the appearance of it, even though vindictiveness was not actually there, that we think the Amendment I am now moving should be made.

§ LORD ARDWICK
I would support my noble friend on this Amendment. It looks at least at first glance, as though the effect of this subsection may be to make it permissible to offer a man who works at Land's End reinstatement at John o' Groats. The noble and learned Lord, the Lord Chancellor, will correct me if I am wrong. What kind of reinstatement is that? Everyone knows that some of the big firms to-day have their private Siberias, some Godforsaken outposts of their empires, where unsatisfactory executives may be sent. This is one of the perils of executive life today. I do not think we want to extend it to other classes of worker. Surely this is a clause at which the Government should look again and put some limit, perhaps geographical, upon it.

§ LORD BERNSTEIN
I should like to support this Amendment, which is very importent. Perhaps, when the noble and learned Lord, the Lord Chancellor, replies, he may explain to me how difficult it would be for an employee, after a lockout, to circumvent the protective provisions of this clause and, the other way round, how easy it would be for an employer to do the same thing.

§ THE LORD CHANCELLOR
This Amendment extends no adequate or additional protection to the worker and makes the clause unnecessarily rigid and less effective. What the noble Lady has not seen, I think, and what is my answer to the noble Lord, Lord Bernstein, if I understood him correctly, is provided in subsection (3), which says: In this section any reference to an offer of re-engagement, in relation to an employee. is a reference to an offer (made either by the original employer or by a successor of that employer or by an associated employer) to re-engage that employee, either in the position which he held immediately before the effective date of termination or in a different position which would be reasonably suitable to him. In other words, he has either got to get back the same job or a similar job reasonably suitable for him. That precludes 1459 those private Siberias and unreasonable shunting in geographical space. What the noble Baroness has sought to do is to achieve the protection already achieved in subsection (3) by making changes wholly incapable of extending that protection; that is to say, by omitting the words "associated company" from subsection (3). The reason why it does not offer any protection at all clearly emerges from the speeches that have been made in support of the Amendment, because the large organisations which are the main ones that have associated companies could, but for the protective words that are already there, allow shunting all over the country and in every kind of grade within the same company or its successor company. There would be no difficulty about that.
The mere chance that the offer of re-engagement comes from an associated company does not, in fact, deprive the employee of any effective protection. The effective protection comes in the other words of the clause. On the other hand, we think that on some occasions—t may be on rare occasions—t may be neither practicable nor desirable for the original employer to re-engage all the employees who were locked out. There may have been during the lockout changes in the employer's circumstances and organisation. One change in organisation may have been precisely that contemplated in the terms of the subsection by the use of the phrase "associated employer". For example, it may have been decided—nd such a decision would be perfectly proper: it may even have been decided after consultation with the very unions concerned—hat some operations should be undertaken exclusively in the same locality by an associated company instead of the original company.
In such circumstances, it would obviously be both logical and reasonable that an offer of re-engagement should be by the associated company rather than by the original company as the correct way of protecting the employee from victimisation, which is the object of this clause. The original company might have restricted his activities to another locality, and an offer of re-engagement by the original company might very well involve the very shunting which the noble Baroness wishes to avoid.
1460 The noble Baroness rightly drew attention to the definition clause. The phrase "associated company" is defined in Clause 158(6), which provides that: …any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and in this Act 'associated employer' shall be construed accordingly. In other words, the effect of the Amendment might—lthough no doubt this is not the noble Baroness's intention—e to deprive the employee of precisely the right that she wishes to give him, whereas the right which she rightly desires to give him is adequately protected, so far as words can do it, by the existing words of subsection (3), which will remain in the clause whether the Amendment is passed or not. In those circumstances, without any animus at all, I would ask the noble Baroness to consider whether she wishes to press her Amendment.

§ 5.4 a.m.

§ BARONESS WHITE
I quite see the reasoning of the noble and learned Lord, but he will appreciate from subsequent Amendments which are down to this clause that we are suspicious about this clause altogether. Although he supposes that the final phrase in subsection (3), "which will be reasonably suitable to him", safeguards the worker in all possible circumstances, he will understand that we do not feel that, as it stands, it is adequate. We shall be referring to that in a moment or two on the next Amendment. We know from representations which have been made to us that there is considerable suspicion among the trade unionists about this reference to "associated employer", and therefore I think it is essential that we should put the point that there is not merely this feeling of suspicion that they could be done down by being pushed to another area of the country, but be moved into a completely different milieu, with completely different conditions, spirit, and so on, in the firm, which might be resented, even if they are not sent to a notional Siberia, to which my noble friend Lord Ardwick referred. My late father once told me that in his day there was a section in the Civil Service devoted to coast erosion which served the same purpose.

1461

§ THE LORD CHANCELLOR
The result has been that the coast has been very considerably eroded.

§ BARONESS WHITE
Yes, very true. I do not feel that I can withdraw this Amendment. If I did, I should have a feeling of disloyalty to those who have made representations to us. I cannot accept the invitation of the noble Lord that I should withdraw it.

§ LORD BERNSTEIN
The noble and learned Lord the Lord Chancellor said previously that he had great experience when he was at the Bar in dealing with and acting for unions and employers. Can he assure us that it will not be child's play for an employer, after a lock-out, to circumvent the protective provisions of this clause? It seems to me full of loopholes.

§ THE LORD CHANCELLOR
Nobody can ever give an assurance that no human ingenuity will circumvent the words of the Statutes. I should be held to be ridiculous in the eyes of my profession if I gave any such assurance. So far as words can give it, the words of subsection (3) give the kind of protection which the noble Baroness was seeking by her Amendment.

§ LORD GARDINER
Can the noble and learned Lord the Lord Chancellor say what the words "the position" mean? If he is offered back employment in "the position" which he held immediately before the effective date it does not have to be reasonably suitable to him. Does that mean "the position" with the particular company, or does it mean that he is a plater's helper and so long as he is offered a job as a plater's helper it reed not be reasonably suitable to him, even if it is in a different part of the country? Is the argument: "It will make it easier for him to get a job as a plater's helper if we extend it not only to his existing employer, but to a different employer—hy not include third parties and say that they can get him a job as a plater's helper anywhere or by any employer; that should be sufficient"? The fact that two entirely different companies happen to be owned by a third company from the worker's point of view makes the other employer a complete stranger, and the mere fact that the shares of the company are owned 1462 by the third company I should have thought was irrelevant from the employee's point of view.

§ THE LORD CHANCELLOR
I had construed the meaning of "the position" as a man getting his old job back, not just a similar job. It does not follow, for the reasons I have indicated, that the particular company need necessarily be the same; it may be a successor company or an associated company. If he was employed to look after the level crossing at Wittleston he would not be getting the same job back by being offered a chance to look after the level crossing at Barnes.

§ On Question, Amendment negatived.

§ 5.10 a m.

§ BARONESS WHITE moved Amendment No. 217: Page 18, line 40, leave out ("either").

§ The noble Baroness said: This and the following Amendment should be taken together. The reason for our proposing to amend the clause in this way is, as I indicated earlier, that we are not satisfied that the phrase "which would be reasonably suitable to him" is either adequate or appropriate to safeguard a worker in this particular position. I was very much interested that in our discussion on a previous Amendment the noble and learned Lord the Lord Chancellor referred to consultation with the trade union because there is nothing about that in this clause. This is precisely what we are suggesting could with advantage be inserted in this clause.

§ Again, we have the apprehensions of our trade union colleagues that as the clause now stands a man following a lock-out can be placed in a difficult position which would be reasonably suitable for him, but only in the opinion of his employer. So far as we understand it, this is the state of affairs: that it is the employer who decides whether or not a different position would be reasonably suitable for the man concerned. The man himself is in a weak position; he has no say, really, against the employer. He can argue that he does not think that it is particularly suitable for him or that it is a reasonable thing, but he has no protection if the employer says, "Oh, but in my opinion this is a perfectly suitable job for you". And, provided that it was not within outrageously unreasonable 1463 limits, it seems to me that the man would have no redress at all. Even if it were unreasonable, I do not think he would have any redress—although perhaps we could be advised on that.

§ Surely in the circumstances where there has been a lock-out—nd, as I said on a previous Amendment, a lock-out is not a happy situation ever—here is bound to be suspicion, especially if it was not his own job which was argued about but a different job, that there is an element of victimisation. Whether the victimisation might be due directly to the lock-out, or whether there was some inherent trouble before which resulted in the employer locking out his workers, would depend of course on the circumstances. But surely the Government ought seriously to consider the proposed Amendment. We are not suggesting that in all cases the worker should have an absolute right to his former job. We recognise that there may have been changes of circumstance, as the noble and learned Lord mentioned, and therefore we admit that there might be a position in which it would be reasonable not to give the man back the job from which he was locked out but a reasonably suitable and comparable job. But the absolute decision as to whether it was suitable or not should not rest exclusively with the employer.

§ Therefore, we are suggesting here that where there are special circumstances which make a different job desirable, instead of the man's own former job, the matter should be agreed with the man's trade union or other independent organisation of workers. This is a very sensible Amendment and one which we think would bring out what I hope is the genuine intention of the Government in this clause: that it should be a really fair action towards an employee who had been locked out. If they wish this clause to be both fair in actuality and fair in appearance, then I feel certain that on reflection they will agree that this extra provision is most desirable. I am indeed fortified in putting this Amendment before your Lordships by the reference—aybe the inadvertent reference; I do not know—by the noble and learned Lord the Lord Chancellor earlier on this clause that there should be consultation with the trade union. I hope, therefore, that the Government will be disposed to accept this Amendment.

1464

§ LORD ARDWICK
I should like to support this Amendment very strongly. It may not perhaps be essential in the bigger firms where there are sophisticated labour managers who have taken degrees in psychology at the London School of Economics, but I can visualise it being very necessary with a small firm, particularly where you the owner is the manager who has had trouble. He may feel righteous indignation and may take unconscious punitive action. People are terribly attached to their jobs; it can be a terribly emotional experience to move from one job to another. In those circumstances, I think the worker should have the protection of trade union counsel and help.

§ THE LORD CHANCELLOR
I do not agree with the noble Baroness about this. In the first place, if we do come to reading one another's speeches, which is not a task I would ordinarily prescribe even to a political opponent, I think she will see that when I made reference to the possible agreement of the trade union I did not imply that it would universally be the case. I was pointing out that a switch from an original employer to an associated company was not necessarily a disreputable thing; it could occur with the full approval and after agreement with the trade union.
The purpose of these two Amendments is to insist upon agreement with the trade union in every case of re-engagement. I think this is a mistake, both because it is unnecessary and because it is likely to prolong industrial strife of this kind. The noble Baroness has really mistaken the effect of the clause as it stands. She asked the question: who is to decide—nd she quoted the latter words of Clause 23(3)—heher the different position would be reasonably suited to the employee? She then put it as a dilemma; is it to be the employee himself or the employer? The answer, is neither. The question can only be decided in case of dispute by the industrial tribunal, who will decide whether the employer's offer of re-engagement is substantially different and not reasonably suited for the employee; or it may decide that the employee's failure to accept the offer was a failure to accept an offer which was reasonably suited to him. It is not a matter for the employee to decide or for the employer to decide, unless they agree. One always 1465 wants these unhappy episodes, whether strikes or lockouts, to come to an end, but if everybody has to be settled into exactly the jobs the union agrees one can see indefinite prolongation of lockout in this case, though in the next Amendment, strikes. The noble Baroness, with her customary candour, said that she felt bound to put it forward from loyalty to trade union colleagues, a sentiment I can only applaud. I submit that the apprehensions are without fundation, and in fact the effect of the Amendment would probably be counter-productive in terms of industrial relations.

§ BARONESS WHITE
The noble and learned Lord was mistaken. It was on the earlier Amendment about the associated employer that I referred to loyalty to his colleagues: not this one.

§ THE LORD CHANCELLOR
I think the noble Baroness said both.

§ BARONESS WHITE
No. It is perhaps a little early in the morning and we are not quite as alert as we might be. I should like the noble and learned Lord and his colleagues to consider the position of a man who goes to the industrial tribunal—hat sort of life is he going to lead in the firm? First, he has been a party to a lock-out, which in itself is an unhappy situation. Then lie takes his employer to the industrial tribunal because he disagrees with the employer's choice of job on reinstatement. Is he really likely, in those circumstances, to settle down happily, and are industrial relations really likely to improve? Here again is an example of the Government all the time trying to take matters out of the hands of those directly concerned and put them into the hands of the tribunal.
I do not believe that this will lead to better industrial relations, because all the time one is removing the centre of reference from the employer and the trade union to an external and extraneous body. I speak with some experience of industrial relations, and I can say that this does not lead to a satisfactory state of affairs within an establishment. It is far better to let people try to sort out their own problems; and what we are suggesting here is perfectly reasonable—hat the trade unions should be brought into consultation in such a situation so that there is a fair balance as between 1466 employer and employee. The employee on his own, without the backing of the trade union, is in a weak situation vis-á-vis his employer: we must recognise that. And to rely on this sort of quasi-judicial action all the time, instead of getting people to sort things out for themselves, is not in our opinion at all conducive to better industrial relations. I am afraid I am completely unconvinced by the argument of the noble and learned Lord, the Lord Chancellor, and this is a Division which I hope we shall take.

§ THE LORD CHANCELLOR
I do not want to stop a Division but I do want to stop a misunderstanding, because the noble Baroness has betrayed in her last remarks that she has wholly failed to understand the situation which is postulated both in the Amendment and in the clause as it stands unamended. She gave us to understand that what she complained of was that a man, re-engaged in this situation, would not settle down happily again in his firm. Again, she compassionately told me it was rather an ungodly hour to be discussing complicated legal matters. I accept that, but the whole point of this clause, and indeed the whole fascicule of clauses that we have been discussing, is the man's rights on unfair dismissal. What is postulated is that the man does not go back: he goes to the tribunal for compensation over non-reinstatement. It is not a question under this fascicule of clauses of his titling in happily back in his employment, whether we are dealing with Clause 21, 22 or 23. He claims that he has been unfairly dismissed. The employer says, "You were not dismissed because you went of your own accord, or you were dismissed fairly." But there is no question of his settling happily back into his firm, because that can only happen if the offer of reinstatement is accepted and not refused. This clause postulates that he would have refused it.

§ BARONESS WHITE
But he would have refused it because he was being offered a different job.

§ THE LORD CHANCELLOR
Certainly.

§ BARONESS WHITE
On the grounds that he does not regard it as being reasonably suitable to him. Why should he be put in the position of having to 1467 refuse a job because he finds it unsuitable?

§ THE LORD CHANCELLOR
The noble Baroness does not seem to realise that this is a clause about compensation. The parties have disagreed about what is reasonable. Somebody has to decide what is right and whether the right to compensation arises. It is only at that point that the question of compensation becomes relevant at all.

§ BARONESS WHITE
Why should he be obliged to seek compensation? This is a legalistic attitude, if I might respectfully suggest, which has very little connection with the realities of industrial life. We are suggesting a way out of this; we think that if there were consultations with the trade union in this matter it would be much less likely that the man would refuse a job because it was unreasonable. If his trade union said, "This is really a perfectly sensible offer", he would not be placed in the position where he had to go to the tribunal to claim compensation for what was in effect dismissal because he had been offered an unsuitable job.

§ THE LORD CHANCELLOR
It is not a question of consultation with the trade union. What the noble Lady is asking for is agreement with the trade union. This is not a clause about terms of re-engagement or consultation; it is a clause about compensation. If the noble Lady does not like the whole provisions for unfair dismissal and thinks it is a lot of legalistic nonsense, then I could understand it although I would not agree with it. The whole approach of the Opposition throughout this long night has been that this is a marked advance on previous practice. The whole postulate which is made with regard to this clause is that for some reason the parties have fallen out; the workman is not in his previous

1468

§ job. He complains (a) that he has been dismissed and (b) that his dismissal is unfair.

§ VISCOUNT CALDECOTE
The last thing I want to do is to get between the noble Lady and the noble and learned Lord; but surely, if the noble Lady is right, the first thing that will happen is that the man will go to his trade union representative and say, "Things are not going right for me. I have been unfairly dismissed. I have not got my right job back". It will happen automatically; there is no need to introduce this additional point. If the noble and learned Lord is right, the issue does not arise at all.

§ BARONESS WHITE
As the Bill now stands, the trade union has no locus in this matter, as we see it. At this hour of the morning I do not think we shall get very much closer to each other.

THE EARL OF BALFOUR
May I put another point here? Although I have some sympathy with the general ideas behind this Amendment, I feel the real difficulty would arise if the trade union and the management did not agree. Under this clause the employer must make every effort to reinstate the employee, but it is everybody's wish that both unemployment and redundancy should be discouraged. Furthermore, I think one of the problems with this Amendment would be that any disagreement between the union and the management would be much more likely to affect the employee than the employer, and I do not think it would achieve the object.

§ 5.28 a.m.

§ On Question, Whether the said Amendment (No. 217) shall be agreed to?

§ Their Lordships divided: Contents, 25; Not-Contents, 76.

1469

CONTENTS
Ardwick, L.	Diamond, L.	Milner of Leeds, L. [Teller.]
Bernstein, L.	Donaldson of Kingsbridge, L.	Ritchie-Calder, L.
Beswick, L.	Gardiner, L.	Shackleton, L.
Blyton, L.	Garnsworthy, L. [Teller]	Shepherd, L.
Brown, L.	Greenwood of Rossendale, L.	Stow Hill, L.
Burntwood, L.	Hanworth, V.	Taylor of Mansfield, L.
Champion, L.	Hoy, L.	Wells-Pestell, L.
Davies, of Leek, L.	Llewelyn-Davies of Hastoe, Bs.	White, Bs.
Delacourt-Smith, L.
NOT-CONTENTS
Aberdare, L.	Effingham, E.	Massereene and Ferrard, V.
Amherst of Hackney, L.	Elliot of Harwood, Bs.	Mottistone, L.
Balfour, E.	Exeter, M.	Mowbray and Stourton, L.
Barrington, V.	Falkland, V.	Moyne, L.
Bathurst, E.	Ferrers, E.	Nugent of Guildford, L.
Beaumont of Whitley, L.	Fisher, L.	Pender, L.
Belhaven and Stenton, L.	Gisborough, L.	Penrhyn, L.
Belstead, L.	Glendevon, L.	Rankeillour, L.
Brabazon of Tara, L.	Goschen, V. [Teller]	Redesdale, L.
Brecon, L.	Gowrie, E. [Teller.]	St. Aldwyn, E.
Caldecote, V.	Gray, L.	St.Just, L.
Chelmer, L.	Hailes, L.	St. Oswald, L.
Clinton, L.	Hailsham of St. Marylebone, L. (L. Chancellor.)	Sandford, L.
Cork and Orrery, E.		Sandys, L.
Cottesloe, L.	Halsbury, E.	Sempill, Ly.
Craigavon, V.	Harvey of Tasburgh, L.	Strange, L.
Cranbrook, E.	Henley, L.	Strathcona and Mount Royal, L.
Croft, L.	Hives, L.
Cullen of Ashbourne, L.	Hood, V.	Sudeley, L.
Daventry, V.	Ilford, L.	Suffield, L.
De Clifford, L.	Jellicoe, E. (L. Privy Seal)	Swansea, L.
Denham, L.	Kemsley, V.	Teviot, L.
Drumalbyn, L.	Kinnoull, E.	Thorneycroft, L.
Dudley, E.	Lansdowne, M.	Tweedsmuir, L.
Ebbisham, L.	Lothian, M.	Vivian, L.
Eccles, V.	Lyell, L.	Windlesham, L.

Resolved in the negative, and Amendment disagreed to accordingly.

§ 5.35 a.m.

§ LORD BYERS moved Amendment No, 219: Page 18, line 43, at end insert ("but provided in either case that the employee suffers no loss of seniority or pension rights").

§ The noble Lord said: It follows from all that we have been saying on Clause 23 that, when an employee has been dismissed by way of a lock-out, and is taken back again, he is not meant to be penalised at all and therefore he should not lose seniority or pension rights. I think it follows that there are only three possible answers to this Amendment, which is self-explanatory. The first is that in point of fact this is provided for in another Part of the Bill, where we have not been able to find it; the second is that the Government accept it; the third is that the Government accent it in principle but that it is ill-drafted and they will put it right. Any of those three answers will be equally acceptable.

§ THE LORD CHANCELLOR
I think that in a sense I am going to give all three answers, although they are at first sight wholly inconsistent with one another. I hope the noble Lord will forgive me if I take perhaps a little longer about it than I would have liked at this hour, because I want him to understand what I am going to say about it. I think the question of pension rights 1470 may very easily require 'further consideration in this context. I do not think it can arise in qu[...]e way, or with the same effect, that the noble Lord expects. Obviously if a man goes back into this employment he goes back into his employment, and therefore no question of unfair dismissal will arise because he has not been dismissed. That is the first proposition. In all these cases, we have dealt with dismissal per se; we are now dealing with dismissal after lockout, and we shall be dealing with dismissal after strike. What you are postulating here is that the man does not go back into his employment and claims that he has been unfairly dismissed. I have already given the third of the answers which the noble Lord asked for; namely, that I agree that seniority and pension rights do require some special consideration. So that is answer number three.
I am going to give the straight answer to the actual point; in the situation postulated in this clause, which is that the man does not go back and claims that he has been unfairly dismissed; the answer is somewhere else in the Bill. The answer is that that adds to his compensation. It must add to his compensation because the loss of his seniority and pension rights are part of the damage which he suffered. It is a part of Clause 111, and Clause 113 is necessarily involved in it. If you add both those answers together you get the last one, that even 1471 if this is right it must be rather insufficiently drafted to have produced two rather inconsistent answers to the same question. Both, I think, are right, and I think it is fair to ask us to look at the question of pension rights and seniority; but for the reasons I have given it cannot come in here and in this way.

§ LORD BEAUMONT OF WHITLEY
I am not entirely certain that I understand the explanation of the noble and learned Lord, but I am much comforted by his undertaking to look at the whole question of pension rights. Unless anyone else wishes to join in, I beg—

SHACKLETON
Before the noble Lord withdraws the Amendment, may I say this? The noble and learned Lord did not keep us very long. I gather that he is going, to look again at this matter. The provisions for compensation could not possibly [...]the value of a pension which had been acquired over a long period. I may be wrong but it is not quite enough of an answer to say that this would meet the case. This is perhaps one of the most crucial issues. I agree that in the light of the answer the noble Lord is quite right not to press the Amendment, but I suggest that the noble and learned Lord also looks at the totality of the loss.

§ THE LORD CHANCELLOR
I would certainly accept that. In fact, that is what I am saying, because the same problem must arise in non-re-engagement after a strike or in straight dismissal under Clause 21. But it will depend on the size of the pension and the degree of loss of seniority, whether the compensation will cover it or not. The only reason why it might not cover it is not that in principle it could not under Clause 111, but that it might hit the ceiling under Clause 113.

§ LORD BROWN
If in drafting these Bills the Government, instead of using this rather indeterminate word "position", which has already led to some debate, had used the more sophisticated word "roll", which covers not only the job but all the benefits attached to the roll, and if the word were clearly defined in the definition clause, a lot of the questions 1472 which have arisen need never have arisen.

§ THE LORD CHANCELLOR
I will convey the noble Lord's view to the Parliamentary draftsmen.

§ LORD BEAUMONT OF WHITLEY
I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 5.44 a.m.

§ On Question, Whether Clause 23 shall stand part of the Bill?

§ LORD DELACOURT-SMITH
As I think will have been apparent, this is not a clause which finds very much favour in the eyes of my noble friends. It appears to constitute virtually an encouragement to employers who have declared a lockout to take what must clearly be a further and separate step of sacking workers, even those who are not actually involved in the lock-out. I find the wording of subsection (I) rather puzzling and confusing and I am not sure what dismissal by way of a lock-out [...]tended to mean. It certainly is not intended to mean that the act of declaring a lock-out is itself to be a piecemeal dismissal, because it is clear that the people involved in the lock-out may be different from the people involved in the dismissal and it is certainly quite clear that the dismissal may start later than the lock-out or at the same time. I should not have thought that this was a procedure to which we wished to give any appearance of respectability in the Statute.
I have in mind examples which have occurred, such as the very prolonged dispute in the Roberts Arundel works as a result of a refusal of trade union recognition. It developed into a lock-out, and at a further stage, if my memory serves me aright, the employees concerned were dismissed.
Of course, this act of dismissal, in this context, is a further means of putting a degree of pressure upon the workers concerned. I am bound to say, too, that our general unease about this clause and our general belief that it will not be beneficial has certainly not been allayed by the discussion about the associated company point, for surely one effect of including associated companies, which seems a very remarkable inclusion, is that it will assist, in one sense, in the employer offering re-engagement, since he will have a wider 1473 range of employments (or of positions, perhaps, if I may use that word) to put on offer to the individual employee. He will also have the facility, as a result of this, to break up the original work-force and distribute it more easily over a number of concerns. That can be one effect, and it certainly will be a reason which will be read into the inclusion of this particular phrase. As I say, for a variety of reasons this is a clause which does not commend itself to my noble friends, and it is one, I think, on which we shall feel bound to divide the Committee.

§ THE LORD CHANCELLOR
Again, I do riot want to stop the Committee from reaching a Division. I think the Whips rather enjoy Divisions after a long night, and I am far from denying them their simple pleasures. But I do want to avoid misunderstanding, especially as what we say here is sometimes capable of being reported outside. It is wholly unjust to suggest that this is a clause which encourages lock-outs or victimisation after lock-outs, any more than the next clause encourages strikes or victimisation after strikes. We are dealing here with unfair dismissal. The first group of clauses clearly had to define the straightforward case when, in the absence of any industrial unrest on either side, a man's employment was brought to an end. That we discussed. But, obviously, those considerations do not apply either where a strike takes place and some of the employees are re-engaged and others are not, or when a lock-out takes place and some of the employees are re-engaged and others are not. This is a situation which requires a separate set of definitions. We have sought in each case to apply, mutates mutandis, the same criteria to re-engagement after a resumption of work as apply to unfair dismissal per se
In passing, may I say to the noble Lord that I am quite unconvinced that the clause could apply to someone who had not suffered as a result of the lockout. That would be a straight case of dismissal under the earlier clauses, as I understand it. What is contemplated in the clause we are discussing, Clause 23, is a dismissal by way of lock-out—that is to say, a termination of the contract of effective employment—followed in some cases by a resumption of work, which is referred to in the first subsection, 1474 but, in the case of particular workmen who are the potential claimants before the industrial tribunal, by a non-re-engagement or by an offer of work which they thought was unreasonable. The best we can do—and it seems to me a perfectly reasonable stand that we have taken—is that either they are given the same job, or are offered the same job, which can give rise to no kind of dispute. Or they must have been offered a job which the industrial tribunal, which is the arbitrator between the parties, find to have been reasonably suitable for the applicant. That seems to be fair. The point about the associated company is basically a technical one and I will not pursue it. Basically our stand is: either the same job or something which the impartial tribunal says is reasonably suitable in the circumstances. I do not see how human ingenuity can do better.

§ LORD DELACOURT-SMITH
I can understand, in the light of the explanation given by the noble and learned Lord, the process of reasoning by which the Government have included this clause in this form in this Bill. I remain of the opinion that it will create the impression I have described. May I press the noble and learned Lord. Could he comment a little on this phrase which still puzzles me: "by way of lock-out"? Does this mean dismissal of an employee arising from a lock-out situation?

§ THE LORD CHANCELLOR
I am not perhaps in my brightest condition at this hour, but I had understood it as meaning that by the act of lock-out a large number of people are dismissed. The fact of a lock-out is in a sense a dismissal. Then comes the resumption of work postulated at the end of subsection (1). But to the dismay of the potential claimant, whereas his mates resume their work in their old situation he is not offered re-engagement in his old situation; and if he is offered re-engagement it is in a situation which he regards as not reasonably suited for him. This is the situation that I think the clause postulates. I hope I have put it plainly.

§ LORD DELACOURT-SMITH
I am sorry to rise again on this. The noble and learned Lord still has not met my difficulty. He said that the start of this was that the act of lock-out was the act 1475 of dismissal. I cannot reconcile that with the further phrase in line 25, "whether the dismissal occurs at the beginning of the lock-out or during the course of it"

§ THE LORD CHANCELLOR
I am obliged to the noble Lord. I think he has a point which I ought to have explained. Neither a strike nor a lock-out automatically brings an end to the contract of employment. Indeed, it is one of the anomalies of the legal situation created by strikes and lock-outs that even if there is a breach of the contract on one side or the other it does not normally bring an end to the contract of employment. But a lock-out can take the form of a purportive dismissal; men can be handed notice. That is the first case postulated in brackets. The same thing can happen during the course of a lock-out which has not begun in that way: by the men being handed their notice in the course of it. That is the distinction that the noble Lord has asked me to explain. I hope that I have now made it clear.

§ LORD DELACOURT-SMITH
I thank the noble and learned Lord for his explanation but I am afraid it still does not make my noble friends any happier about the clause as it stands.

THE EARL OF BALFOUR
I wonder whether I could make this clause clearer. It is really a very simple and very essential one and I hope the Committee will understand it. In Clause 23(1) it states: The dismissal of an employee by way of a lock-out…shall not be regarded as unfair if the employee is offered re-engagement as from the date of resumption of work. Subsection (2) states: Where an employee who has been so dismissed, and has not been offered re-engagement as from the date of resumption of work, claims that he was unfairly dismissed then the employer shall be considered to have unfairly dismissed this employee, as in Clause 22. Subsection (3) states that an offer of re-engagement made by an employer or the employer's successor means the employee is offered a similar position reasonably suitable to him. Subsection (4) merely gives a definition 1476 of the date of resumption of work. I think this is simple if you think of it from that point of view and cut out most of the difficult legal language. It is very simple, and I am quite certain that it is entirely in the employee's interest.

LORD GRAY
Reference has been made to recourse to an industrial tribunal. May I ask under which clause a complaint could be made? If it is under Clause 102, is it possible that the word "re-engagement" should have been included in Clause 102(1)(c)?

§ THE LORD CHANCELLOR
I am sorry, would my noble friend repeat that?

LORD GRAY
Reference has been made to the making of a complaint to an industrial tribunal with regard to Clause 23. I was asking under which procedure a complaint could be brought.

§ THE LORD CHANCELLOR
I do not think my noble friend has been following. A complaint against unfair dismissal begins at Clause 20 which defines it, because it says that it is an unfair industrial practice. The first three parts of the passage beginning at Clause 20 deal with a straightforward dismissal. There is no industrial unrest. It is there provided that the employee must prove that he has been dismissed and, if he does, the employer must prove that the dismissal was fair—if he wants to get off paying compensation. Obviously, the definition of "dismissal" contained in Clause 21 is inappropriate to a situation where there has been a break in the continuous employment, either by reason of a lock-out, which is Clause 23; or by reason of a strike, which is Clause 24. Clause 23 endeavours to provide a substitute definition of "dismissal" which is appropriate to the circumstances of lockout, and Clause 24 will seek to provide a substitute definition of "dismissal" which is appropriate to a strike.

LORD GRAY
I am grateful to my noble and learned friend. I do not think I made myself clear, but I will leave it now.

§ Clause 23 agreed to.

1477

§ Clause 24 [Dismissal in connection with a strike or other industrial action]:

§ 5.58 a.m.

§ LORD BEAUMONT OF WHITLEY moved Amendment No. 220:

§ Page 19, line 18, at end insert- ("( ) that the strike or other industrial action took place in protest against default by the employer in the fulfilment of his obligations with regard to health, safety or welfare under the Factories Act 1961 or the Offices, Shops and Railway Premises Act 1913").

§ The noble Lord said: I have an unfortunate feeling that this Amendment may be in the wrong place. Nevertheless, I feel that the point we are trying to get over should be aired. I shall move it very briefly in case the Amendment is in the wrong place. This clause has to do with a dismissal in connection with a strike or other industrial action—particularly subsection (2), where it states that dismissal shall not be regarded as unfair unless various things are shown.

§ The principle behind this Amendment is fairly obvious. Whatever safeguards there should be against strikes, there should be no hindrance to a strike which is carried out on safety or health grounds. Where workers go into a factory and find that the guards which should have been round the machines are not there or that other safety equipment or protective clothing is not there, they would be justified in withdrawing their labour immediately, without going through any forms, until those matters have been put right. I am far from clear about whether this is the right place to insert these words, but this point has not been raised before and it certainly should be raised. I beg to move.

§ THE LORD CHANCELLOR
I think that we all sympathise with the noble Lord in supporting the ends of a strike designed to promote safety for one reason or another. That does not mean that the Amendment is appropriate or can be made appropriate, because it is really inappropriate to the nature of this clause. As I tried to say to my noble friend a moment ago, the clause deals with the alternatives where a man's employment is permantly terminated as the result of a strike situation, and the object of this subsection is to differentiate cases where these may be applied properly and with 1478 out unfairness or to identify where dismissal is unfair. The propriety or impropriety of a strike does not matter for this purpose.
A man may be dismissed unfairly as a result of a wholly improper strike or as a result of a totally proper strike, if the circumstances do not warrant the termination of his employment. What is sought in the subsection is to define the situation in which a dismissal, which takes place after an industrial upset of one kind or another, can be identified as unfair. The fact that a lock-out is justified would not make it fair under Clause 23, if it were otherwise unfair, and the mere fact that a strike is improper does not make it unfair, if the circumstances in Clause 24 are fair.
I am sure that the noble Lord will forgive me if I add that strikes of the kind he postulates are not particularly common. His Amendment relates to alleged breaches by an employer of his legal obligations under the Factories Act or the Offices, Shops and Railway Premises Act 1963. Breaches of these Acts are extremely common, otherwise many of us who practised in the courts would scarcely have made a living in our middle years, because this is one of the commonest sources of civil litigation and occasionally of criminal prosecution. When a union finds that there is a breach—and both workers and employers connive at breaches, otherwise people would not be injured—it does not usually call out its people on strike. It brings the factory inspector down like a ton of bricks on the employer, because that is what he is there for. Therefore this is to some extent an unreal situation. Supposing that, despite the two objections which I have given, you introduced this inappropriate thought into the identification of an unfair dismissal resulting from a strike, what would the result be? The result would be that the industrial tribunal, with all its merits for the purpose of discussing an unfair industrial action, would then have to discuss whether or not a breach had been committed of the Factories Acts or of the Offices, Shops and Railway Premises Acts; these are the common sustenance of the common law courts, which are the appropriate body to discuss the matter.
I think we really should get a conflict of jurisdiction of a most undesirable and 1479 unfair kind, without achieving any additional protection for the worker and without clarifying the law to any degree. It is not that I do not sympathise with the noble Lord about this; I just do not think that this Amendment, despite its admirable ideology, is at all well contrived for the purpose for which it is conceived

§ LORD BERNSTEIN
I must make my declaration. I have great sympathy with this Amendment, and I accept the Lord Chancellor's excuse.

§ THE LORD CHANCELLOR
I have succeeded at last.

§ BARONESS WHITE
Succeeded with my noble friend, but I am not sure about myself, because there are circumstances somewhat different from those which the noble and learned Lord has described. He has described breaches of the Factories Acts and of the Offices, Shops and Railway Premises Act which could be properly settled by the workers concerned, or by the trade unions on their behalf, calling in the factory inspector and, if necessary, taking action in the courts. But there are circumstances in which there is an immediate walk-out, particularly if the place is too hot or too cold. This is not something that will wait on litigation. If the place is too cold, the workers will refuse to work in it and they will walk out. I grant that it is not very likely in those circumstances that an employer would seek to dismiss one of his workers. But it could happen. Similarly, if there is inadequate ventilation, or inadequate shade when people are working under glass and it is too hot, then it is not by any means unknown for people to walk out.
Later on in the Bill my noble friend, Lord Garnsworthy, and I have a some-what similar Amendment, which quite frankly was designed to meet the position of teachers who may decide that the physical conditions in which they are asked to carry out their work are intolerable. It is unlikely that they will take such action; but it has happened. Therefore I do not think it is quite as simple as the noble and learned Lord, the Lord Chancellor, suggests.
Whether this particular Amendment is in the right place is another matter. I 1480 think we can all see what the noble Lord, Lord Beaumont, is getting at, and I for one have great sympathy with him. He wants it to be made perfectly plain that a strike in such circumstances would be justified, and that any dismissal following it would be unjustified.

§ THE LORD CHANCELLOR
Perhaps I can try again, because I may not be at my best at the moment. I fully accept what the noble Baroness says about there being circumstances where there is a walk out, though they are quite unlikely to be circumstances which arise out of the Factories Acts or the Offices, Shops and Railway Premises Acts, which usually refer to some permanent or persistent condition. But let us assume that the unusual happens, and that this does take place. In the ordinary case, as the noble Baroness said, nobody is dismissed: they just come back when the grievance has been settled in the proper way, and that is that. The same point arises as arose on the previous clause; either the workmen are re-engaged or they are not. If they are re-engaged there is no question of unfair dismissal. If some are re-engaged and some are not, then the dismissal is liable to be unfair under this subsection, whether the strike was justified or not. It is irrelevant from the point of view of fair or unfair dismissal, whether the strike was a good or bad one. A bad strike can give rise to an unfair dismissal, and a good strike could, in certain circumstances, give rise to a fair one. It is not a case between "goodies" and "biddies".

§ LORD SHACKLETON
The noble and learned Lord is being very helpful and clear. I do not think he has his facts quite right. The example of the walkout over temperature is explicity covered in the Acts which are referred to. The noble and learned Lord is right: if they did that, the odds are that they would go back. But, turning to another part of the Bill, I should like to ask him whether they would be guilty of an unfair industrial practice and, therefore, some stigma would attach and additional moral pressure could be brought to bear. This may be unsuitable to bring into the Bill. It is difficult with a Bill of these ramifications to think out what may be hypothetical circumstances and I hope we can 1481 push it a little further than we have been able to.

§ THE LORD CHANCELLOR:
The noble Lord is cross-examining me about a different point. He must not complain if I turn out to be wrong in what I am about to say. Prima facieI would say that no unfair industrial practice was being committed in the circumstances. Take the case of one man who is asked to work an unguarded machine. There is no doubt that under Section 14 of the Factories Act the employer, by letting the machine run unguarded, is committing a criminal offence as well as rendering himself liable to damages for breach of statutory duty if the man is injured. If a man sees the unguarded machine and works at it, although it is rare for him to be prosecuted, he is aiding and abetting a criminal offence. If the breach of statutory duty would affect all the workers, or a large section of them, they could not be guilty of an illegal act if they refused to be accomplices to what, under criminal law, is a criminal act. This seems demonstrable on general principles of law without delving too deeply into the particular sections of the Act. Therefore, on principle, I think I must be right, but again I say by way of caution, that I am being cross-examined outside the sphere of the Amendment which I was invited to discuss.

§ 6.14 a.m.

§ LORD BEAUMONT OF WHITLEY
I entirely take the point of the noble and learned Lord about this Amendment being in the wrong place, as I rather suspected it was. I should like to thank the noble Lord, Lord Shackleton, for probing, and the noble and learned Lord for replying to what was the real point of the Amendment. Although we got an "off the cuff" answer, it was quite a cheerful answer. I should like to take an unusual step and, instead of asking the Government to look at this question once more, ask the Opposition Front Bench if their great team of trade union lawyers might see whether this point really is covered by the noble and learned Lord's answer before we reach Report stage. But without waiting for an answer to that I will ask leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

1482

§ 6.16 a.m.

§ LORD DELACOURT-SMITHmoved Amendment No. 221: Page 19, leave out lines 27 to 40.

§ The noble Lord said: I do not find this clause easy to understand. To what extent shop stewards and trade union representatives in the work-place will be able, from an examination of it, to judge how far they will be within and how far outside the law, I should not like to say, but as I understand the situation, if the Amendment which I am proposing to the Committee were accepted the clause would give at any rate a measure of protection against victimisation arising from a strike or from other forms of industrial action. If this Amendment were adopted, the clause would leave the employer free to dismiss individuals so long as he treated all the employees who had participated in the action in the same way. If however the clause is not amended, it seems to invite a number of things, and in particular subsections 3(a) and 3(b) seem to provide almost an invitation to employers to victimise shop stewards. Dismissal is to be unfair in the other cases provided for by the clause, but here there is a specific exemption, and because the exemption is written in this way in the Bill employers may well take advantage of it. Indeed, the clause to which I am drawing attention seems almost to suggest that it will be fair for an employer to sack a steward or other official for his activities in organising a strike or sustaining a strike after it has started. But the activities, as I read it, providing for dismissal would not necessarily be connected with or arising from the strike.

§ This would really seem to go a long way to nullify the rights which are proclaimed in various parts of Clause 5; and I should be grateful for the comments of the noble and learned Lord on this matter. For example, if a group of workers in an engineering factory start some kind of industrial action, such as working without enthusiasm, and then write to their trade union seeking support, what is the position of the workshop representative who has written asking for this support, and what is the position of the employer in regard to him? Or if shop stewards who have men who are on strike, write to other shop stewards asking for financial support, what, again, is their position; what, again, is the position 1483 of the employer? I feel a considerable amount of disquiet about this clause as it is drafted, and it seems to me that this Amendment would make substantial improvement in it. I beg to move.

§ THE LORD CHANCELLOR
I am finding it increasingly difficult to give a lucid explanation of these complicated provisions, but again I will do my best to do so. The basic situation here is that we are trying to apply the unfair dismissal provisions of the Bill to a strike situation. As in the case of a lock-out—ecause strikes and lock-outs are part of the field of collective action in the struggle for power—o far as unfair dismissal is concerned we try to be neutral. It does not mean that we encourage strikes or lock-outs, but that we try to be neutral in applying unfair dismissal provisions both to the employers in the case of lockout and employees in the case of strike. Of course, the ordinary result of a strike, and what usually happens, is that the strike is followed by a resumption of work by all those who went on strike, but more often than not on terms slightly better or slightly worse, but slightly different, from the terms they were employed on before the strike began. That is how strikes are settled, and almost always there is a non-victimisation clause as part of the terms of resumption.
Subsection (2) of Clause 24 broadly states that there must be a degree of selectivity in non-re-engagement after a strike in order to render the dismissal unfair, and that is covered in paragraphs (a) and (b) The remaining four lines state that the reason—r if more than one, the principal reason—or non-reengagement is that the employee had taken one of the legitimate actions; I use the word "legitimate" as a compendious piece of shorthand to mean one of the actions specified in subsection (3). Subsection (3) then goes on to say that the things for which he cannot be dismissed are the exercise of any of the rights conferred on him by Clause 5(1) of the Bill, provided that the subsection does not apply to the activities of the trade union during the strike, because that is part of the industrial conflict which has taken place. These words, which are, I think, crucial to the meaning of the clause, are part of the provisions which leave it to 1484 the trade union concerned to make its agreement after the strike as regards non-victimisation effective. What is not allowed, on pain of attracting the compensation payable for unfair dismissal, is to select an employee for dismissal after a strike for the things which he is entitled to do under Clause 5(1), whether it is (a), (b) or (c), but in the case of (c) something he has done before the strike; the other provisions are not qualified in this way.
Then subsection (4) goes on to define the date of dismissal. I agree that there is a certain complication about this clause, but I hope I have expounded it, and I will try to answer any more specific questions that may be put. I recognise that this a difficult clause.

§ LORD BROWN
I recently spent three-quarters of an hour looking at this very complicated clause and the Amendment— think I understood it—nd it left me quite satisfied that if the Amendment were accepted the possibility of the victimisation of a striker would be much greater than it would be if the clause remained as it was. So I would suggest to my noble friends that we have heard what seems to me to be a proper explanation from the noble and learned Lord, and my own amateur researches left me with an impression which has been supported by the points he has made. I hope my noble friends will not pursue this Amendment.

§ LORD BERNSTEIN
After studying the Amendment, I came to the opposite conclusion. It concerns what might be called the ringleaders or strike-leaders; and I think this is a matter of great importance to trade unions.

§ THE LORD CHANCELLOR
Far be it from me to come between the two noble Lords! I am gratified by what the noble Lord, Lord Brown, says. It is difficult to enumerate the cases of victimisation which would be permitted if the Amendment were passed and those which would be prevented if the Amendment were passed. Which of them would be the more numerous I do not feel qualified to say. But the clause as it is drafted pursues an intelligible principle and one which can be defended, even if the results are marginally better or marginally worse. Obviously, from the point of view of noble Lords opposite, 1485 it would do some good; but I agree with the noble Lord, Lord Brown, that it would do more harm than good. However, I was not looking at it from the point of view of justice or injustice but of the principle that we are seeking to apply, and I was trying to explain it.
We have heard a great deal about the complication of this Bill. On the whole, it is not as complicated as its critics have said—othing like as difficult as income tax, town planning or company law.

§ LORD DAVIES OF LEEK
This is a difficult clause for all of us, especially the laymen. I have been looking at Clause 23 regarding the lock-out and the strike. Clause 23(1) says that a dismissal during a lock-out is not unfair if the worker concerned is re-engaged at the end of the stoppage. If he is not re-engaged, presumably it is unfair. In my opinion, Clause 24(2) and (3) lead to what has been called a paradise of confusion. The requirements must be considered in two stages. The first says that if the reason for the dismissal was that the worker took part in a strike, this shall not be regarded as unfair. It seems then that it is fair. But if one or more employees of the same employer who have been dismissed are offered re-engagement and the worker concerned is not, and the reason is because he was a member of a union or had taken part in the union's activities, then his dismissal or non-re-engagement is unfair.
We will pause a moment there. This seems to me to be a satisfactory non-victimisaion clause. But here comes the rub. The protection in subsection (2) above does not apply if the workers concerned took part in the activities of the trade union, and such activities, subsection (3) provides, occurred after the strike or other industrial action began". Then his dismissal or failure to reinstate is fair. In my humble view this really leads to victimisation. I believe this clause to be so important that we should have the benefit of the good sense of the noble and learned Lord the Lord Chancellor to interpret it. He has been working so hard through the night that I should like him to look at this when he is fresh and clear and perhaps give us an explanation somewhat later in the Bill. I should not like to pit my interpretation against that of the noble and 1486 learned Lord, but I think I have got somewhere near the truth.

§ THE LORD CHANCELLOR
I certainly would reflect upon it for as long as the noble Lord wants, but I think he is rather near both to what the true construction is and Ito what I said it was. At the moment, I do not see any difference between what he has said and what I have said.

§ LORD BROWN
I think (the commonest danger to people who go on strike for unfair dismissal undoubtedly arises because the employer wants to get rid of the people whom he regards as ringleaders in the strike. One thing is quite clear in this clause: if there is an attempt to dismiss people because they led the strike—n other words engaged in union activities—they could claim protection under Clause 5(1)(c). That seems to me to be a valuable method of protection. My noble friend Lord Davies imagines, I think, that they are divorced from the protection of Clause 5(1)(c). In point of fact this clause is difficult, but it genuinely gives protection under subsection (1)(c), and if the man has led a strike and he is within the union there may be other dangers. That is the main danger from which you have to protect people.

§ LORD DAVIES OF LEEK
It would be irritating to noble Lords to follow this up at this time of the night—or morning—so I will leave it.

§ LORD DELACOURT-SMITH
I a [...]bound to say that the discussion which we have had on this Amendment has served to underline the great complexity of this clause, and I must put it to the noble and learned Lord that whatever happens this clause ought not to remain in this state in which there is so much obscurity. We have had the opportunity of studying it for some time; we are quite divided on what its effect is a[...]on what degree of protection the various parts give. What will the position be when this becomes operative, as people have to make their own assessment and seek guidance as to what it means? I do not know whether the noble and learned Lord would care to take this matter back or whether it would be better for me to withdraw the Amendment and then proceed to a discussion at a later stage on the clause as a whole.

1487

§ THE LORD CHANCELLOR
I do not think I can undertake to take this back on this Amendment. What I have undertaken to do is to reflect on what the noble Lord, Lord Davies, said. I do not know that there is anything different in the construction of the clause between what the noble Lord, Lord Davies, said, what the noble Lord, Lord Brown, said and what I said. It may be that if the Amendment were passed the effect would be marginally to remove more protections than it would save, and in that respect I tend to the view of the noble Lord, Lord Brown. But that is not a question of construction; that is a question of what its results would be when you have construed it right. I think all three of us have come to the same conclusion about its construction, and I am not sure that I could agree to take that back, if I am right about that construction. This clause is not, and is not intended to be, a clause to supersede the necessity or otherwise of a non-victimisation agreement between union and employers at the resumption of work after a strike. It is a clause about unfair dismissals—unfair dismissals, that is, where the non-victimisation agreement does not touch the case. That is all it is about.

§ LORD DELACOURT-SMITH
In a sense, the trouble is that this clause is dealing with a situation which some of us on this side of the Committee think should never be allowed to arise, and because it recognises the existence of such a situation we naturally start with a strong animus against it. But it would probably make for better discussion if I withdrew the Amendment and then proceeded to raise some points on the Question, That the clause stand part.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 24 shall stand part of the Bill?

§ LORD DELACOURT-SMITH
Here again we have a clause, as we have already indicated, which causes us considerable concern on this side of the Committee. On first examination the clause appears to provide some safeguards for people who go on strike and find their employers dismissing them for that reason. But our basic approach is that such a situation ought not to exist, and there ought to be "no victimisation" clauses 1488 effective after a strike had come to an end. If a group of workers withdraw their labour and the employer dismisses them all and then takes back only those whom he regards as acceptable—or as not responsible for the trouble, as he will no doubt phrase it—some protection is afforded to the people who are regarded by the employer in this way. But there can be the case of the employer who is so determined to rid himself of those people whom he regards as having led to the industrial dispute that he is prepared to sack everybody, just to ensure that he sacks the people that he wants to get rid of. It is only when he re-engages some of them that any case arises for an appeal under this subsection, as I understand it. By dismissing all the workers, he leaves all of them without a case.
This is not a hypothetical argument; there are cases of this sort which do arise. One which has been brought to my attention concerned a factory of about 40 people: there was an unofficial strike; the employer sacked all the workers, and he said that they could re-apply for their jobs, but he was not guaranteeing in any way to re-engage any of them. They would be considered if they applied for employment, along with anybody else not previously employed who applied for employment in the factory. I should be glad if the noble and learned Lord would comment on such a handling of the situation, and the extent to which it would be argued that subsection (2)(b), and the mention of the words "offered re-engagement", would enable the workers in the example I have given to claim that there had been unfair dismissal.
In the Bill it is clear that it is the employer who must offer re-engagement, and in the example that I have given the employer was making it clear that he had sacked everybody and he was not offering re-engagement to anybody; he was demanding a fresh application from his workeople and underlining, as I have already said, that such an application would carry with it no guarantee of a job. It is a point on which some clarification is needed because, faced with the threat of sacking, and then a fairly lengthy argument in law about whether they were fairly or unfairly dismissed, many workers are going to regard this as a clause which tilts the scales against them.
1489 Could I also make a reference to subsection (3). By saying that it will be an unfair dismissal to sack a man for exercising his rights under Clause 5(1), the Government are seeking to imply that a man seeking to be a member of a trade union is protected from dismissal for that reason alone. The use of the term "trade union" in the Bill is, in a sense, and to a degree, a misleading one, because it will be read by some people in the sense of the normal common use of the words "trade union", whereas subsection (3) will render protection to the man who seeks to be a member of a registered union, which is the only type of trade union which gets that definition under the Bill, but of course no protection will be afforded to a man who is a member of a trade union which in the event, does not seek: registration under the Bill.
This is a clause which is so complex, and appears in some respects so unsatisfactory, that we must press the Government to take it back and look at it again. It is one which gives so little guidance on a very sensitive subject that, even taking into account the fact that it is, as the noble and learned Lord rightly pointed out, in a particular context in the Bill and dealing with a particular situation—that in which the "no victimisation" arrangements have in fact broken down—I hope the Government will look at it in a radical way again.

§ 6.43 a.m.

§ LORD DAVIES OF LEEK
I think that what I have to say will again be cogent. First of all, the connotation of the word "re-engagement" is not exactly the same as "reinstatement". "Re-engagement" is completely different from "reinstatement". One has only to think about it. I might re-engage a gardener, but I will not reinstate him to prune the roses and look after the fruit trees because I no longer think I can afford that scale of pay. I am not in the lucrative position of some noble Lords opposite who keep all these gardeners, but it illustrates my point. I had better stop soon because I am beginning to wake up again.

§ THE LORD CHANCELLOR
The one episode in my career related to many years ago. So far as I remember, it was in about 1946.

§ LORD DAVIES OF LEEK
Would not the noble and learned Lord agree with 1490 me that re-engagement and reinstatement are two different things? A worker who thinks he has been unfairly dismissed has the right to go before an industrial tribunal. This is the terrible thing about this "mish-mash"; we have to jump to Clause 94(4), because that tells a tribunal what it can do. But it is not fair to attack the noble and learned Lord at this time of the day. It is stated in the Bill: If the tribunal considers that it would be practicable and in accordance with equity for the complainant to be re-engaged by the emloyer, or to be engaged by a successor of the employer or by an associate employer… So there are all kinds of "get-outs" for the employer who wants to get rid of an awkward individual. I shall leave it there, but there will come a day when we shall reach Clause 94 and this point will have to be tackled again.

§ THE LORD CHANCELLOR
The first thing we shall notice when we come to Clause 94 is that it does not have a subsection (4).

§ LORD DAVIES OF LEEK
Perhaps there will be one by then.

§ THE LORD CHANCELLOR
We cannot win. There is also nothing about associate companies in Clause 24 which we are now discussing. We have got over that hurdle. But if I may come to the points which the noble Lord, Lord Delacourt-Smith, raised, this clause as drafted does not of course preclude an employer from dismissing selectively a person who has taken part in a strike in all circumstances that can possibly be conceived. It is generally recognised that some industrial actions are so irresponsible and so wrong that even a trade union does not always succeed in making a non-victimisation agreement about it. Therefore, I cannot offer an assurance that there are no sets of circumstances at all in which a man can be protected against selective dismissal as a result of a strike situation. This would be to mislead the Committee, and I hope that I have not done so. I tried to explain in detail what was meant, and it certainly does not mean that.
Secondly, I could not avoid the impression, when I heard the noble Lord, Lord Delacourt-Smith, criticising this clause, that the things which he was basically criticising were not things that 1491 were obscure about it, but might include things that were fairly plain about it. I think I can deal with one of his points, which might reflect the inelegancy of drafting, but where the answer is tolerably plain. He cited a case—he did not give me any means of identifying it and I am grateful to him for not doing so, because I could not discuss an individual case—of a factory with some 40 employees where the whole of the employees who went on strike had received notice of dismissal. In other words, subsection (2)(a) did not apply and subsection (2)(b) was the only one upon which you could rely. The noble Lord then said that the employer indicated that applications for re-engagement would be considered without commitment that any particular person would be re-engaged. You might criticise his conduct, or you might support it, according to the circumstances of the case but in fact he had not yet reached the Rubicon. The Rubicon would be reached when he did in fact re-engage or offered to re-engage. These people would come in and ask for jobs. Some of them might be offered them and some might not. The Rubicon is reached at that point and not before. Nobody is dismissed at the point which the noble Lord put to me—

§ LORD DELACOURT-SMITH
I am sorry to interrupt the noble and learned Lord, but is he stating the position under the current law or is he applying the clause we are considering to the case I quoted?

§ THE LORD CHANCELLOR
I am applying the clause. I was trying to answer the question, and I was applying the clause. Quite clearly, the mere fact that he says some may be employed but nobody will be guaranteed a job does not reach the Rubicon. He crosses the Rubicon, for good or ill, at the moment at which he offers re-employment to some but declines to offer re-employment to others. That is the moment at which the Rubicon is crossed. No general notice of this kind creates a situation which attracts Clause 24 at all. Clause 24 is attracted when a selective offer is made to people who have been on strike, and then Clause 24 applies to those who do 1492 not get the offer of a job. At that stage the person who is refused an offer of a job has to look at the clause, or his trade union or his adviser would look at the clause, and say that the reason was something that was contained in subsection (3).
The noble Lord, Lord Delacourt-Smith, is undoubtedly right in saying that the reference in subsection (3) to "section 5(1) of this Act" excludes from protection unregistered bodies. That is quite clear, and if the noble Lord wants to divide, obviously this is something about which we differ and about which we have argued considerably during the last ten days, and I do not propose to add or detract a word from what has been said on this side of the Committee about that. This is what I had in mind when I said that some of the things the noble Lord was complaining about were not obscurities in the clause but what was plain in the clause, because there is nothing obscure about that, not if you take the trouble to look up the reference, which of course the noble Lord did. The more complicated provision is the trade union activities which are protected by Clause 5(1)(c), and there the protection ceases at the moment when the strike begins, and that is what the noble Lord, Lord Davies of Leek, pointed out to me some time ago. At that stage the man is either protected by a non-victimisation agreement between the union and the employer at the resumption of work, or he is not. But he is not per se, not in himself, protected by the clause. I have tried to explain this, but it is not an error on our part; it is deliberate policy. I have tried not to mislead the Committee in any way; I have put it absolutely plainly. It is not an inadvertence on our part that that is so. This is what the clause is intended to mean, and this, I think, is what it does mean.

§ LORD DELACOURT-SMITH
I indicated the anxieties we feel. I think the noble and learned Lord has clarified the situation a great deal by what he has said, but this is still a clause which does not commend itself to my noble friends. We think it certainly should be reconsidered with a view to some greater clarity, and I think we must divide the Committee upon it.

1493

§ 6.54 a.m.

§ On Question, Whether Clause 24 shall stand part of the Bill?

§ Resolved in the affirmative, and Clause 24 agreed to accordingly.

§ Clause 25 [Excluded Classes of Employment]:

§ 7.1 a.m.

§ LORD BESWICK moved Amendment No. 222: Page 20, line 14, leave out paragraph (a).

§ The noble Lord said: The purpose of this Amendment is fairly obvious. If paragraph (a) is left in, it would follow that there could be an instance where two employees were under penalty of dismissal and one would have protection, because he worked in a larger group, and the other would have no protection because he happened to he in a work group of four or less. In a small group of workers the relations might be fine, but it could not be said that in all cases there would not be a necessity to extend some protection. I understand that this exclusion was also in the Bill put forward by the previous Administration. In

1494

§ Their Lordships divided: Contents, 70; Not-Contents, 20.

1493

CONTENTS
Aberdare, L.	Ebbisham, L.	Lyell, L.
Amherst of Hackney, L.	Eccles, V.	Mowbray and Stourton, L
Balfour, E.	Effingham, E.	Moyne, L.
Barrington, V.	Elliot of Harwood, Bs.	Nugent of Guildford, L.
Bathurst, E.	Ferrers, E.	Pender, L.
Beaumont of Whitley, L.	Fisher, L.	Penrhyn, L.
Belstead, L.	Gisborough, L.	Rankeillour, L.
Brabazon of Tara, L.	Glendevon, L.	Redesdale, L.
Brecon, L.	Goschen, V. [Teller.]	St. Aldwyn, E.
Caldecote, V.	Gowrie, E. [Teller.]	St. Just, L.
Carrington, L.	Gray, L.	St. Oswald, L.
Chelmer, L.	Hailes, L.	Sandford, L.
Clinton, L.	Hailsham of St. Marylebone, L. (L. Chancellor.)	Sandys, L.
Cork and Orrery, E.		Sempill, Ly.
Cottesloe, L.	Halsbury, E.	Strange, L.
Craigavon, V.	Harvey of Tasburgh, L.	Sudeley, L.
Cranbrook, E.	Henley, L.	Suffield, L.
Croft, L.	Hives, I	Swansea, L.
Cullen of Ashbourne, L.	Hood, V.	Teviot, L.
Daventry, V.	Ilford, L.	Thorneycroft, L.
De Clifford, L.	Jellicoe E. (L. Privy Seal.)	Tweedsmuir, L.
Denham, L.	Kemsley, V.	Vivian, L.
Drumalbyn, L.	Lansdowne, M.	Windlesham, L.
Dudley, E.	Lothian, M.

NOT-CONTENTS
Bernstein, L.	Garnsworthy, L. [Teller.]	Shackleton, L.
Beswick, L.	Greenwood of Rossendale, L.	Shepherd, L.
Blyton, L.	Hoy, L.	Stow Hill, L.
Champion, L.	Kennet, L.	Taylor of Mansfield, L.
Davies of Leek, L.	Llewelyn-Davies of Hastoe, Bs.	Wells-Pestell, L.
Delacourt-Smith, L.	Milner of Leeds L. [Teller.]	White, Bs.
Diamond, L.	Ritchie-Calder, L.

1494

§ that case there was a reason; it was thought unwise to overload the Tribunal and it was necessary to ensure that the case load was kept low in the initial stage.

§ If it is the intention of the Government to review the situation after we have had some experience of the working of the Act, I could understand. But if it is intended to maintain this exclusion as a matter of principle, that would be something we should find very difficult to accept. It would mean, for example, that in the farming industry almost all the workers would not be protected. In certain cases where there was a productivity drive, and the number of employees was reduced, at one point there would be protection and then, because the number of employees was reduced, the protection would be withdrawn. I am quite sure that the noble Earl can see there is a potential injustice here and I hope that he may give us some assurance.

EARL JELLICOE
The noble Lord put his point very fairly. We are, as he said, 1495 doing precisely what the previous Government were proposing to do in their Bill, and I think for precisely the same reasons. The first is the reason that the noble Lord gave. We feel that the workload, the case-load, which is going to fall on the industrial tribunals as a result of the unfair dismissals procedure is going to be great and we must go carefully. Secondly, we feel that there is a doubtful area of the small farm or shop where there is a close and intimate relationship among a few people. Here the tribunals are likely to have a difficult task in trying to disentangle the sort of cases that arise and to determine appropriate remedies. We feel—and I think that this was also the belief of the previous Government—that in this area re-engagement would seldom work on account of the poor prospect in that sort of concern of getting the right sort of relationship going again. I have been unhappy to find how backward we are nationally in this field, but having carefully examined the practice in other countries—in Italy, for example, where there are exclusions in concerns employing under 35 people—I discover that other countries have found it necessary to make exclusions for the small concern.
The noble Lord, Lord Beswick, said that he would find this easier to understand and accept if it were my right honourable friend's intention to widen the scope of the unfair dismissals procedure as and when he felt able to do so. The noble Lord will have noted that in the next subsection but one, Clause 27(2), the Secretary of State will have power to enable him to reduce the qualifying period. I should like to make it very clear here and now that it is my right honourable friend's firm intention to institute a review of the operation of the unfair dismissals machinery at an early date. He wishes to do so as soon as it has developed far enough in order for us all to form a judgment on its ability to cope with a bigger through-put, and as soon as there is a possibility of invoking Clause 27, I can give your Lordships a very firm assurance indeed that my right honourable friend will not hesitate to do so, thus moving in the direction which the noble Lord indicated, and to which succeeding Amendments point.
1496 In view of the explanation I have given and the categorical assurance from my right honourable friend which I have been empowered—nay, asked to convey to your Lordships, because he did not have a chance of conveying this assurance to another place—I hope that the noble Lord will not wish to press this Amendment at this stage. I should like to reaffirm the firmness of my right honourable friend's intention here. He had wished to publicise it in another place and particularly asked me to convey this assurance in the strongest possible terms to your Lordships.

§ LORD BESWICK
I am grateful for what the noble Earl has said and the way he has said it. I readily accept the assurance. However, I should like to make one other point. The noble Earl spoke about the difficulty of reinstating someone in a small concern, and I take his point. But here we are concerned not simply with redressing an injustice, but with creating a better atmosphere in an industrial community. I think there could be a sense of grievance in a very small community if it was thought that they did not have the protection which extended to a slightly larger community. That is something which ought to be borne in mind, the positive good which could come from this protection. But in view of the firm assurances which the noble Earl has given, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 7.10 a.m.

§ EARL JELLICOE: moved Amendment No. 222A Page 20, line 17, leave out from ("employees") to second ("at") and insert ("who had been continuously employed for a period of not less than thirteen weeks, whether they are or had been all employed at the same place or are or had been employed").

§ The noble Earl said: The subsection that we have just been discussing excludes from the right of appeal for unfair dismissal employment in undertakings where there were fewer than four employees at the time of dismissal. I should like to make it clear that representations have been made that under the provisions as at present drafted regular full-time employees in certain sectors which employ a large number of casual or seasonal labour would be excluded for 1497 the greater part of the year, but would acquire, surprisingly and rather quixotically, a right of appeal during a comparatively short season when casual workers were employed. This could apply in the horticultural industry—cherry pickers, hop pickers—the tourist industry, the catering industry and in certain areas the construction industry. I think we should have an odd sort of situation where protection against unfair dismissal could depend in some industries on such matters as the vagaries of the weather. If it was good, for example, and casuals were able to be employed, there would be protection for the regular three or four employees; and if it was bad, they would not qualify for protection.

§ In the view of the Government, it would be most unsatisfactory that an employee's right of appeal against unfair dismissal should depend on purely fortuitous circumstances. That is why the Government feel that only regular employees should be taken into account for the purposes of the exclusion which we have just been discussing. That is why the Amendment seeks to exclude from the calculation employees who have not been employed continuously for 13 weeks or more at the time of dismissal. The 13 weeks figure is not just drawn out of the hat; it is the period which corresponds with the new qualifying period under Clause 17 for an employee's entitlement to a week's notice. If one accepts the principle of exclusion, maybe we can extend that and lift the exclusion when we have gone further down this road and gathered more experience and the Secretary of State has used his powers under the next clause but two. But if for the time being, at any rate, we accept the principle of that exclusion, then it seems to me that the Amendment I am moving would follow logically. I beg to move.

§ LORD SHACKLETON
Though this seems a simple Amendment, it is in fact quite complicated. The noble Earl explained it very clearly, but unfortunately, owing to a small interruption, I did not hear exactly what he said. But I may say that the interruption was to inform me that the Labour Party has now won 2,000 council seats, and this was a slight distraction. I am sure this does not discourage the noble Earl from the good work that he is doing. What he has said seems to hold together with the other 1498 aspects of the argument. I do not think it would be right to take time trying to analyse this further. I think we had better have a look at what the noble Earl has said, and if we are unhappy about it we can return to it. He will find that the figure of 13 weeks, for which the noble Earl argued so eloquently, may have a relevance to some of the later Amendments.

§ On Question, Amendment agreed to.

§ Clause 25, as amended, agreed to.

§ Clause 26 [Qualifying period and upper age limit]:

§ 7.15 a.m.

§ LORD HOY moved Amendment No. 223 Page 21, line 13, leave out paragraph (a).

§ The noble Lord said: Paragraph (a) of Clause 26 lays down that among the classes of people who will not get dismissal protection will be those who have not been employed for a period of not less than 104 weeks. They have to serve two years before the benefit is conferred on them. This period is far too long. I cannot think of anywhere else where people are compelled to serve a probationary period before they get the benefit of an Act of Parliament. This is a most unfair proposal; I do not care where it came from, either from this Government or the previous one.

EARL JELLICOE
This Amendment, and the next two Amendments, are closely linked. I am grateful to the noble Lord, Lord Hoy, for his clear explanation. Clause 26 is not one of my favourite clauses in the Bill. The Government would like to move to a position as soon as possible in which we have a reasonably short qualifying period. The qualifying period in Clause 26 has been embodied for one, simple, practical reason: it has become clear to us from the independent research commissioned by and carried out on behalf of the Government that the initial case load for the tribunals arising from unfair dismissals is likely to be extremely heavy. There could be anything up to a quarter of a million dismissals a year in this country—a rather frightening figure—which could fall within the new unfair dismissals procedure. Numbers of this sort 1499 would swamp the existing industrial tribunals. Although it is our hope to extend the number of tribunals quickly, any lower amount of qualifying service would at this stage produce a bigger case load than even an expanded system could possibly cope with. That is the only reason why it seemed necessary—initially at least—to restrict applications to those cases which could well be regarded as the most deserving; that is, longer service employees who have served in their employment for a continuous period of not less than two years.
I claim no greater merit for the clause as it stands than this simple, practical, straightforward justification. It leaves a lot of people who might need to have recourse to dismissals procedure outside its net at the present time. There was not the chance of making clear in the other place that my right honourable friend is very conscious of this problem. It may be that we have miscalculated its extent; one just cannot tell. I have given the figures derived from independent research.
It is certainly our hope, in any event, that the number of potential applicants will reduce. It is our hope that the legislation, as it bites, will have a significant effect on employers' attitudes towards dismissals. It may be that as employees get used to the procedure, those who have had a long shot at it will be discouraged and the case-load will be thereby reduced. But, in any event, the legislation has been framed to encourage the development of voluntary procedures, as is evident from a succeeding clause, which can be exempted from the statutory machinery; and this too, if our hopes are justified, will reduce the burden of the case-load. As I have said, it is our hope to increase the geographical coverage and the number of the industrial tribunals.
I trust that I have said enough, coupled with the assurance I gave on the last Amendment that it is my right honourable friend's intention as soon as may be to lower the ceiling of this exclusion clause, to make it clear that in principle there is absolutely nothing between noble Lords opposite and myself on this issue; indeed, it would be rather surprising if there were anything between 1500 noble Lords immediately opposite myself and me on this issue, since Clause 26 is identical to the equivalent clause in the last Government's Bill. They, too, had two years' exclusion; they too would presumably have much preferred not to have had it, and they too presumably would have had the firm intention of reducing it as soon as the practicalities made this possible. I apologise at this rather early hour for having taken up so much of your Lordships' time on this particular point, but it is not an unimportant one; it was not one which was properly discussed in another place, and I hope that I have said enough to persuade noble Lords opposite that I have very considerable sympathy with the principles of their Amendment, but for the simple practical reason which commended itself to their Administration I cannot myself go along with it.

§ 7.22 a.m.

§ LORD BROWN
I do not propose to move Amendment No. 225, in my name, when we come to it but I would say just a word on this Amendment. I have noted what the noble Earl has said. He has expressed the situation clearly. There is, however, just one point, and I hope the Government may take note of this. If they do it would seem to me to be much better. If this clause, while possibly stating the figure of 104 weeks, also included powers for the Secretary of State for Employment to reduce it—

§ LORD SHACKLETON
It is in the next clause.

§ LORD BROWN
I am sorry. Having blundered at this rather lazy hour, I will sit down.

§ LORD STOW HILL
Before the Committee comes to a conclusion on Amendment No. 223 which is before it, I wonder whether it would be for the convenience of the Committee, in view of what the noble Earl said so very clearly to us, to consider the case for Amendment No. 225A which stands in the name of my noble friend Lord Delacourt-Smith and my own. If it would be for the convenience of the Committee, I should like to say a few words in support of that Amendment. I do not know whether I may take it that the Committee agrees to my so doing. On that assumption, and in view of what the noble Earl has said, 1501 I would respectfully submit to the Committee that there is a case for embodying a proviso in the terms set out in Amendment No. 225A. The noble Earl made it quite clear why it would be impracticable, in view of the rather frightening figure he mentioned of 450,000—

EARL JELLICOE
Two hundred and fifty thousand—a quarter of a million. It is frightening enough without being 450,000.

§ LORD STOW HILL
I am sorry; a quarter of a million. But he made it quite clear that it would be quite impracticable, for the time being at any rate, much as the Government would desire to do so, to reduce the period of 104 days. That being so, at any rate while there is a substantial number of weeks which have to be worked continuously in order to preserve the right under Cause 20, would it not be desirable to provide, as the proviso which I suggest does provide, that the industrial tribunals in the event of a claim being made before them in respect of an alleged unfair dismissal should be given some discretion? The discretion then suggested is this. If a case comes before the tribunal in which the worker cannot demonstrate that he has worked continuously for 104 weeks, the tribunal, if it finds that during the two years ending with termination the employee has worked not less than 90 weeks—that is a purely arbitrary figure which can be moved up or down—can treat him for the purpose of the claim as if he did satisfy the requirement of employment for 104 weeks, provided that the tribunal considers it would be just and equitable so to do. It may often be the case that the employee cannot satisfy the test he will have to meet if the 104 weeks stands; there may be a number of reasons why he cannot measure up to this test. That being so, I put forward the proposal in No. 225A and suggest it as a useful adjunct to the clause.

1502

§ LORD HOY
I am grateful to the noble Earl for what he said in reply, although I am very disappointed. I thought of raising that subsection in Clause 27 myself to avoid him giving it in reply; I thought the reply would be that. I am bound to say the picture the noble Earl presented to us is very frightening. He said the Government anticipate that there will be a quarter of a million cases in the first year.

EARL JELLICOE
I should be clear about this. I said that independent research indicated that there may be in a year anything up to 250,000, but independent research has also shown that something like 80 per cent. of those cases might fall within the first two years. I am giving the noble Lord an argument there, but I wish the facts to be known.

§ LORD HOY
I am not placing any responsibility or blame on anyone. We are grateful for the figures. Whether the research has been done by the Government or by an agency for them, we are faced with a figure of 250,000. This is why they have laid down a reservation in the clause; the argument is that because so many people are going to be involved, considerable numbers are not going to have justice; they must wait, and perhaps they will be penalised. The longer it goes on the worse it becomes. I know it was in a previous Bill, hut as I said at the beginning, when Bills and papers are prepared they are for discussion and it is for the Members of another place and your Lordships to make up their minds. While I should have liked to accept what the noble Earl says. I think I should be doing less than justice if I did not ask my noble friends to record dissent to this particular proposal.

§ 7.29 a.m.

§ On Question, whether Amendment No. 223 shall be agreed to?

§ Their Lordships divided: Contents, 21; Not-Contents, 63.

1503

CONTENTS
Barrington, V.	Delacourt-Smith, L.	Milner of Leeds, L.
Beaumont of Whitley, L.	Diamond, L.	Ritchie-Calder, L.
Bernstein, L.	Garnsworthy, L. [Teller.]	Shackleton, L.
Beswick, L.	Hoy, L.	Shepherd, L.
Blyton, L.	Kennet, L.	Stow Hill, L,.
Brown, L.	Llewelyn-Davies of Hastoe, Bs. [Teller.]	Taylor of Mansfield, L.
Champion, L.		Wells-Pestell, L.
Davies of Leek, L.
NOT-CONTENTS
Aberdare, L.	Elliot of Harwood, Bs.	Moyne, L.
Amherst of Hackney, L.	Ferrers, E.	Nugent of Guildford, L.
Balfour, E.	Fisher, L.	Pender, L.
Bathurst, E.	Gisborough, L.	Penrhyn, L.
Belstead, L.	Glendevon, L.	Rankeillour, L.
Brabazon of Tara, L.	Goschen, V. [Teller.]	Reading, M.
Brecon, L.	Gowrie, E.	Redesdale, L.
Carrington, L.	Gray, L.	St. Aldwyn, E.
Chelmer, L.	Hailes, L.	St. Just, L.
Clinton, L.	Halsbury, E.	Sandys, L.
Cork and Orrery, E.	Hanworth, V.	Sempill, Ly.
Craigavon, V.	Harvey of Tasburgh, L.	Strange, L.
Cranbrook, E.	Hives, L.	Sudeley, L.
Croft, L.	Hood, V.	Suffield, L.
Cullen of Ashbourne, L.	Ilford, L.	Swansea, L.
Daventry, V.	Jellicoe, E. (L. Privy Seal.)	Teviot, L.
Denham, L.	Kemsley, V.	Thorneycroft, L.
Drumalbyn, L.	Lansdowne, M.	Tweedsmuir, L.
Dudley, E.	Lothian, M.	Vivian, L.
Ebbisham, L.	Lyell, L.	Windlesham, L.
Eccles, V.	Mowbray and Stourton, L. [Teller.]
Effingham, E.

On Question, Amendment agreed to.

§ 7.37 a.m.

§ LORD SHACKLETON
May I ask the noble Lord, the Leader of the House, what his intentions are? It is now fourteen hours since I commented on the undesirability of overworking your Lordships' House; and I must say that the remarks I made at the beginning of yesterday afternoon about the standards we maintain have been fully justified. Although there have been moments when things have gone a little more slowly than at other times, we have watched an interesting variety of moods, particularly with the Lord Chancellor, who in the final stages struck me as being in immensely good form. He is now preparing to start another day in about three hours' time.
I wonder whether it would not be wise if we were to stop pretty soon. It may be that the noble Earl would like to get a little further. It may tail off a bit. There are some quite important matters to discuss, and I would stress that we have not been raising this question right through the night. It is an old gambit to seek to adjourn, but I have not yet moved an Adjournment Motion during the debate on this Bill, except when there was an unfortunate muddle during a Division. Perhaps the noble Earl the Leader of the House would care to comment, and he might note that our numbers on this side are increasing

§ LORD CHAMPION
The day shift is coming on.

1504

EARL JELLICOE
The noble Lord, the Leader of the Opposition, has asked me what my intentions are, and in general I should just like to say that they are entirely benevolent. In particular, I would echo what the noble Lord has said. I think we have had a good debate. We have covered quite a bit of ground, and ground which has not been properly covered in another place. Therefore, although we have been going for 14 hours, I think we can say, without patting ourselves on the backs too much, that we have been doing our job. I should also like to say, quite apart from anything else, that I am conscious that we have been placing quite a strain upon the administrative services of the House, and I think I shall carry all noble Lords with me when I voice my gratitude to the staff. All that being said, I should have thought that the reasonable thing would be to go for the natural break. The natural break I think falls at the end of Part II. I do not think that we have many Amendments ahead of us. I have looked at them fairly carefully and I do not consider that they should cause us any great difficulty.

§ LORD SHACKLETON
The noble Lord wishes to be benevolent, but of course what he is saying is a fairly hard thing, because Clause 31 is a controversial part of the Bill, there is quite a lot to be said. We may wish to return to this. We are willing to go on for a bit longer, and we will do what we can to get on, but I am not at all happy as to whether the noble Lord's benevolence goes far 1505 enough, and it may be that I shall have to speak more sternly to him later.

§ 7.40 a.m.

§ On Question, Whether Clause 26 shall stand part of the Bill?

§ LORD HOY
I wish to ask one further question about Clause 26, and I hope the noble Lord's benevolence will extend to this clause too, because in Clause 26(b) the Government are taking power to withdraw the benefits for every man who reaches the age of 65 and every woman who reaches the age of 60. It seems to me to be a little hard, in that people might have given very loyal service to a firm, and, simply because they have reached the age of 65 and 60 respectively, the Government says: "You have now forfeited your right to protection". Your Lordships can imagine that for most of us in this place these ages would rule us out. But I want to say quite seriously to the noble Earl that I think the Government really ought to look carefully at this before imposing this penalty on the older section of the community.

EARL JELLICOE
I should just like to explain that employees who have reached the age of 65, if they are male, and 60 if they are female, are excluded from the legislation since this pension age is generally regarded as normal retirement, after which age a man or woman no longer has an expectation to work, although some of us perhaps do have. In some occupations, of course, the normal retiring age is reached earlier: there are many in the public sector which are familiar to us. The legislation makes special provision for this different expectation of retirement age.
I should be perfectly happy to look again at this, but I cannot hold out any promise here. Again we are repeating—and I do not like resting on this ground—a provision in the previous Government's Bill. I would not wish to deceive noble Lords that I am going to produce anything here, but this is something at which I will certainly look in the light of the noble Lord's remarks.

§ LORD HOY
We would not expect the noble Earl to go any further than that. We expressed our feelings on the first part. Certainly we express our gratitude that he is prepared to look at the second 1506 part, and I will not take the matter any further

§ Clause 26 agreed to.

§ Clause 27 agreed to.

§ Clause 28 [Exclusion of certain contracts for a fixed term]:

§ 7.45 a.m.

§ On Question, Whether Clause 28 shall stand pant of the Bill?

§ LORD HOY
May I ask a question on Clause 28(b)? Perhaps the noble Earl can explain what is meant by the concluding lines? It seems to me that these lines are asking the employee to contract out. I do not know whether I am reading this correctly or not. We have always been told that we ought to be careful of the small print on anything we might care to sign. The clause says: if before the term so expires the employee has agreed in writing to exclude any claim in respect of rights under that section in relation to that contract. It seems to be a curious thing to have in a Bill that, where people have entered into these contracts and employment has taken place, there should be a proviso that, where the worker or employee signs an undertaking of this kind, he forfeits any claim against the employer. That seems to be a most extraordinary proposal. I have never seen it before. There may be some precedent for it, and I am certain your Lordships would be grateful to hear of it from the noble Earl.

§ LORD BERNSTEIN
Is it not the fact that the Donovan Commission recommended that this should be done rather differently? They suggest that the Secretary of State should have the jurisdiction, and not the Industrial Court. If so, why the change from the Donovan recommendations?

EARL JELLICOE
I am terribly sorry, I did not quite catch which subsection or section the noble Lord was referring to.

§ LORD BERNSTEIN
I think it was in the Donovan Commission Report, paragraph 559 or 562: they recommended that the Secretary of State should have the jurisdiction which is now given to the Industrial Court, and I wondered why.

1507

§ 7.47 a.m.

EARL JELLICOE
I am a little puzzled by the noble Lord. All I do recall is that Donovan recommended very clearly that the Industrial Tribunals should be the tribunals to which unfair dismissal cases should be referred. In fact, there was a specific recommendation in Donovan, and a large part of a chapter was devoted to that particular point. Unfortunately, I do not carry every paragraph in my head, and I am not absolutely certain of the one to which the noble Lord is referring, and how it is associated with Clause 28, which I am on at the present time.
May I explain the purpose of Clause 28? What I should like to make clear is that the provision of safeguards for employees against unfair dismissal is not intended to affect genuine fixed term contracts, where both parties recognise there is no understanding that the contract will necessarily be renewed on its expiry. This clause excludes fixed term contracts, subject to certain conditions. Under paragraph (a) the contract must be for two years or more, since an employee referring a claim under these provisions would, in most cases, have to have served that long with his employer. The dismissal must consist only of the expiry of the term of the contract without its being renewed. If an employee is dismissed during the term of his contract, he will be able to appeal if he considers his dismissal unfair, provided he satisfies the other conditions for appeal.
In the case of a fixed term contract arranged after the coming into effect of these provisions, there must also be an agreement in writing between the employer and the employee, made before the expiry of the contract, to exclude any claim the employee might otherwise have under these provisions. That is the purport of the two subsections of the clause taken together. I do not know whether that answers the point which the noble Lord, Lord Hoy, has put to me. I must confess I was taken a little off course into the outer frontiers of Donovan by the noble Lord, Lord Bernstein.

§ LORD HOY
I am grateful to the noble Earl for his reply, but I am bound to say it is not very satisfactory. Perhaps we ought to put down an Amendment and draw the matter to the attention of the House.

1508

§ LORD DRUMALBYN
The point here is that, from the time when the Bill comes into operation, it will then be the case that an agreement in writing between the employer and the employee should be made before the expiry of the contract to exclude any claim the employee might otherwise have made under these provisions. The point about "before expiry" is that a great many of these fixed-term contracts, from the very date when the contract is entered into, provide that the contract is for a fixed term and is terminable at the end of that period. That is almost invariably with the consent of the employee, because these are the terms on which he is engaged, and he consents to them. It could happen that in the course of the contract the parties agreed that the contract would automatically be terminable at the end of the fixed term. In any case, the term must be for more than two years. I think that this is both normal and reasonable.

§ LORD HOY
It may be normal, but I do not think it is reasonable. What the noble Lord has said has confirmed my worst fears, that any employer might say to an employee, "You will sign this contract", and perhaps, as a consequence of not signing, he will not become an employee. So while I am grateful for that explanation, I must reserve the right to raise the matter again at a later stage.

EARL JELLICOE
May I say that I am grateful to my noble friend for his explanation?

§ LORD SHACKLETON
May I remind the noble Earl that we are getting towards the end of our time? He did very well in answering my noble friend, who was in fact raising a very important point on the next Amendment, and that begins to bear out the fact that we ought not to go on much longer.

§ Clause 28 agreed to.

§ Clause 29 [Exclusion in respect of procedure agreement]:

§ 7.52 a.m.

§ EARL JELLICOE moved Amendment No. 229A

§ Page 22, line 12, at end insert ("( ) that every organisation of workers which is a party to the procedure agreement is an independent organisation.")

1509

§ The noble Earl said: The Government's primary objective in providing for the exemption of voluntary dismissal procedure is to encourage the development of responsible self-government by trade unions and employers in this important field of industrial relations. We have a related and subsidiary incentive here, in that this will help to reduce the case load of work placed on the industrial tribunals. As the Committee will realise, such exemptions will mean that employees' rights of appeal against unfair dismissal through the statutory machinery will be withdrawn in favour of the exempted voluntary procedure. It is most important that the exempted agreement should provide the employees which it covers with no less favourable safeguards than the statutory scheme. Clause 29 therefore sets out certain conditions which the Industrial Court will need to be satisfied about before an agreement can be exempted.

§ The first condition, the purpose of which is to establish that the agreement is a bona fide one and to provide some safeguard as to its continuing viability, requires a joint application for exemption to be made by all the parties to the procedure agreement. The procedure agreement is defined in Clause 158 and that definition is dependent on there being a collective agreement. The collective agreement is in turn defined in Clause 32(3) as being an agreement made by or on behalf of one or more trade unions or other organisations of workers and one or more employers or organisations of employers. An organisation of workers under that definition does not have to be an independent one in the sense that "independent" is defined in Clause 158. It is our feeling that Clause 29(1) might therefore permit the exemption of a management-dominated dimissal procedure, in the kind of situation where an employer was joined in an application by his house union, possibly to the exclusion of a recognised trade union. This is not the Government's intention and we are concerned that the provision may not in these circumstances provide adequate safeguards for employees. By providing that only a trade union or an independent organisation of workers may be a party to the joint application for exemption, the Amendment will ensure that the interests 1510 of the employees concerned are properly safeguarded. I hope that this Amendment, which reflects our natural benevolence, will commend itself to your Lordships. I think there was a loophole I here, possibly a potentially quite serious one, but so far as I can see this Amendment will close it. I beg to move

§ LORD DELACOURT-SMITH
We welcome this Amendment. We recognise the danger against which it is intended to guard, and we welcome the initiative of the Government in putting this Amendment down. I did not quite catch one phrase of the noble Earl. I am not sure whether he said it was due to natural benevolence or natural love of independence. Both of them, of course, would be completely acceptable phrases.

§ 7.56 a.m.

§ LORD BROWN moved Amendment No. 230A Page 22, line 27, leave out ("appropriate cases") and insert ("cases where (by reason of an equality of votes or for any other reason) a decision cannot otherwise be reached.")

§ The noble Lord said: I hope that at this hour I can do justice to this splendid Amendment. I am afraid I shall take a certain amount of your Lordships' time over this, because the matter is fairly complex. I will explain the purpose of this Amendment and then attempt to justify it. First, the purpose. Under Clause 29 procedure agreements may be arrived at as between the employer and the organisations of employees if approved by the Industrial Court. It is a splendid thing that these procedure agreements should be able to be introduced in this way, because I believe that, once employers have bent their hand to a procedure agreement that is concerned with rights of appeal for unfair dismissal, it should be a natural thing for them to face the fact that there should also be rights of appeal for many other things. Unfortunately, Clause 29(2)(d) lays down that these procedure agreements must include a right of arbitration to an independent referee or tribunal. It may seem extraordinary to your Lordships that I should use the word "unfortunately" with reference to that provision. Indeed, the Industrial Court may not accept a procedure agreement unless that right of an individual to appeal to an independent 1511 tribunal exists. My Amendment seeks to modify that right. Why do I say that? This is where the matter begins to get complex.

§ I have experience of operating appeal mechanisms in the company I used to manage over a period of 25 years. I refer to them as "appeal mechanisms", though I notice that many people are referring to them as "grievance procedures". I just note, in passing, that in my opinion, this is a very bad term indeed. They are quasi legislative and they are appeals, but they are not always grievances. However, that is in passing. If, indeed, this provision of Clause 29(2)(d) remains, then I think a prudent employer would realise that to extend his procedure agreement in the name of the trade union to all forms of appeal, while at the same time giving those appeals the right of immediate access to an independent tribunal, would involve him without doubt in a very large number of appeals to this external tribunal. He would have to face the fact—and I know this from my own experience—that a substantial percentage of those appeals would be trivial by nature, and would not warrant the onerous task of arranging that they be heard by an external tribunal, for any form of hearing by such a tribunal will inevitably involve the commitment of the evidence to writing in some form and the briefing of the tribunal so that they know the circumstances surrounding the appeal. So I am suggesting in this Amendment that there should be a hurdle placed in the way of those who seek to use the services of this external tribunal; and the wording of the Amendment, though complex, has the effect that the Industrial Court need not include in the procedure agreement this untramelled right of appeal to an external tribunal except in certain circumstances when a decision cannot otherwise be reached. This small hurdle in the way of an appeal may enable many employers and trade unions who otherwise would not be able to extend an appeal system to all forms of appeal to do so without all the qualms that Clause 29(2d) in its present form would raise in their minds.

§ It may seem rather a trivial issue but I have been a student of the possible effect of appeals systems for many years. I have read the accounts of some hundreds 1512 of strikes, and it is my view that in many of them the existence of an appeal mechanism would have inhibited the strike. For what happens is that in the absence of an appeal mechanism imposed in a general procedure agreement, the person who feels that a decision has been made which is unfair takes it to his shop steward. His shop steward may turn it down if it is very trivial, but if he does not, and in the absence of a procedure agreement, he will raise it with the committee of shop stewards. In order to take the appeal forward the substance of the appeal has to be generalised into a more serious matter than it probably is. There is then a confrontation between the shop stewards and the management; it has now become an enlarged issue, and management may not be able to accept the greater claims that arise out of this enlargement with the result that a strike takes place. The point of dispute, in origin, was an entirely personal matter, and experience has shown that if the person who had felt that an injustice had been done had had the right, supported by his shop steward as a sort of Q.C., to take it up to the next level of management, and from there up to the chief executive, the dispute would have been solved, in the vast majority of cases, before it got to the chief executive.

§ So the case for stimulating these procedure agreements is an extremely strong one. The case for removing any bar that might hinder procedure agreements extending to appeals systems which cover all forms of felt injustice is equally strong. It is far this reason that I move this Amendment. May I add that if appeal mechanisms through these procedure agreements come into general use another thing will follow from them. The company concerned will find it necessary, possibly for the first time, to begin writing their policies. If they try to operate appeal mechanism without written policies it means they will find themselves in serious trouble. If they begin writing up policies with regard to overtime, wages, night shifts, holidays and all the rest of it, they will find it necessary to come to an agreement about these policies with representatives of their employees. If they do that, these policies become the bounds within which managers exercise their authority. If 1513 managers are in the position to exercise authority, albeit authority limited by these agreed procedures and contained by the appeal mechanism, they will, in my experience, have a very much higher degree of real authority inside the establishment. At the same time, there will be a greater degree of participation on the part of employees. The institution of the appeal system could start the whole process of thinking which could lead to a greater feeling of justice on the part of employees and a greater sense of participation. I can think of nothing more likely to stimulate industrial peace; and this might all start from procedural agreements in a quasi-legal appeal system in industry. That is the background to this rather complicated looking Amendment, which I beg to move

§ 8.6 a.m.

§ LORD DRUMALBYN
I congratulate the noble Lord, Lord Brown, on his oratory at this time in the morning. It is obvious that he has warmed to his subject, and we all know that it is one in which he is very expert. We are very glad to have the noble Lord breathing fresh life into the proceedings at this time. The noble Lord's suggestion is that the words "appropriate cases" should be defined by: cases where (by reason of an equality of votes or for any other reason) a decision cannot otherwise be reached. This is one of the conditions about which the Industrial Court has to be satisfied regarding procedure agreements in general before an agreement can be designated in relation to dismissal procedures. I think the noble Lord has done a great service to the Committee by introducing this Amendment which we are happy to accept. We think it will give greater clarity. While the immediate purpose is dismissal only, the procedure agreement as a whole must contain this provision; it is a minimum provision and we think it an excellent thing.

§ 8.8 a.m.

§ On Question Whether Clause 29, as amended, shall stand part of the Bill?

§ LORD DELACOURT-SMITH
The Committee will observe that we did not move the two linking Amendments in the names of my noble friends. This was because we felt it more appropriate to 1514 make the general observation, on the Question, Whether the clause shall stand part of the Bill—which we have made in connection with other provisions in the Bill—that we deprecate the supervision of these arrangements envisaged in the clause by the Industrial Court. We sympathise with the general intention of the clause, providing the arrangements are satisfactory, and that the requirements are applied strictly. For this purpose we welcome the Amendment moved earlier on the question of the independence of organisations of workers. We believe that it should be the Commission on Industrial Relations rather than the Industrial Court which should be concerned with examining these proposed procedures to confer exemption. This is an aspect to which we may wish to return at a later stage.

§ Clause 29, as amended, agreed to.

§ LORD SHACKLETON
At this point may I again make an appeal to the noble Earl the Leader of the House. I think that we have come nearly to the end of our tether. We have sat for 17 hours. I know that the noble Earl wanted to go a little farther. Certainly we are happy to deal with Clause 30. I do not think that there is much arising on it, but I believe that Clause 31 will take anything up to an hour or an hour and a half, and I do not think it is fitting to the dignity or effectiveness of our discussion to go on. It may be that while we are dealing with Clause 30 the noble Earl may like to be considering this, but I am giving him advance notice. I cannot make any promise on progress but we have moved along. I really think that we have all had enough.

§ Clause 30 [Revocation of exclusion of under section 29]:

§ 8.10 a.m.

§ On Question, Whether Clause 30 stand part of the Bill?

§ LORD DELACOURT-SMITH
Again we regard it as appropriate to make our observations on the Question, Whether the clause stand part, rather than upon the Amendments on the Marshalled List. The positions raised on the earlier clause is a view we hold strongly. It is consistent with the view we have taken on other parts of the Bill, that it is appropriate that the supervision of arrangements 1515 of this sort should be undertaken by the Commission on Industrial Relations. I think in some ways it is even more appropriate within the ambit of the matters dealt with in Clause 30 than in the case of those which fall within Clause 29.
We hope that it will be possible at a later stage for us to come hack to this matter and possibly have a more extensive debate. There well may be a case for our views on this section of the Bill receiving specially sympathetic consideration from the Government. There were provisions of this kind in the Bill which was produced by the last Administration and although the words "registration or approval by the Secretary of State" come into this, the Commission was to play the crucial part in advising the Secretary of State on the use which should be made of his powers. With these observations, I would be disposed to leave the clause to the Committee.

§ LORD DRUMALBYN
I fully understand the noble Lord's views on this, but I noted that he said that under the provisions of the Bill the C.I.R. was going to advise the Secretary of State. It is this advisory role that we have in mind also for the C.I.R. I should have thought that this particular procedure, envisaged in this clause, and in the previous clause, is one that is peculiarly suitable to the Industrial Court—and perhaps the noble Lord will consider this point also before the next stage—because what the Court is really doing is giving an exemption from the law. The Secretary of State might do this by licence. But does the noble Lord really think that a primarily advisory body like the C.I.R. should be put in that position? We do not think so, and that is why we have the Bill as it is. I hope to be able to persuade the noble Lord to our point of view.

§ LORD DELACOURT-SMITH
I must make the point that unless there is some general provision in the Bill which has escaped my attention, Clause 30, which we are considering at the moment, assigns no role to the Commission on Industrial Relations but places the matter entirely in the hands of the Industrial Court. I take note of the point the noble Lord has made, but perhaps we can return to this issue on another stage of the Bill.

1516

§ LORD DRUMALBYN
Perhaps I may point out that, unlike most of the other issues, there is no particular matter for the C.I.R. to investigate. This is purely a question of fact as to whether a certain decision can be taken.

§ Clause 30 agreed to.

§ 8.17 a.m.

§ LORD SHACKLETON
I rise to move that the House do now resume, but before I press this Motion to a decision I want to say this. I know that the noble Earl was beginning to see that we have a strong case. This is my third appeal. I know that the noble Earl firmly wants to go to the end of Clause 31. But I, and I think many other noble Lords, equally firmly think that this is as far as we ought to go. Amendment No. 238 and the debate on the Question, That the clause stand part, may well take an hour or something of that order. Although it is unsatisfactory to stop in the middle of a clause, we have done it before now. I do not know how difficult Lord Drumalbyn's Amendment is. If the noble Earl feels that if he gets into Clause 31 he would be happier, I will not press this Motion, but we really are not prepared to go on beyond that point. I must take a firm stand on this. I again stress that, to put it mildly, we have all been very good indeed, and we shall not be very good for much longer if we go on. I beg to move that the House do now resume.

§ Moved, That the House do now resume.—(Lord Shackleton)

EARL JELLICOE
The noble Lord has quite rightly surmised that it is my firm desire that we should go to the natural break, which is the end of Clause 31, and therefore the end of an important Part of the Bill. The noble Lord has also remarked that that clause contains contentious material; and I recognise that. I also recognise that some of us may be getting a little weary, and perhaps not quite at the peak of our form. I should like to be as reasonable as possible, combined with a very firm desire that we should achieve our target. I should therefore like to respond to the noble Lord's suggestion, and propose that we take the two Amendments. We might then consider adjourning, and leave the debate on the Question, That Clause 31 stand part until a later date.

1517

§ LORD SHACKLETON
I must say, with the greatest respect, that the noble Earl is slowing up and so am I; our speech is getting slurred, we really ought not to go on. The compromise is that we deal with the first three Amendments, Nos. 235, 236 and 237, and then stop. This would leave the contentious Amendment, No. 238, and the Question, That the Clause stand part. We can deal with the first three Amendments very quickly indeed.

EARL JELLICOE
Since I noticed that Amendment No. 238 is written in red in my noble friend's copy of the Bill, which may be some form of slight warning, I am prepared, with very considerable reluctance, and stressing that it is my equally firm desire that we should make substantial progress on Monday, to say that I should not wish to see us divide on this issue, if we can avoid it. I hope that if I agree to fall in with the suggestion that we should stop before the Amendment in red that we shall be able to resume on Monday with reasonable expedition with both the Motion, That the Clause stand part and Amendment 238. I know that I cannot ask for any cast-iron guarantees on this matter; but against that background I should be prepared to fall in with the noble Lord's suggestion.

§ LORD SHACKLETON
The noble Earl is still manfully standing up and is striving to get what he can from the situation. We have noted what he said. He recognised that we can make no promise. We have moved with reasonable expedition and considerable effectiveness. I am prepared, with the leave of the House, to withdraw my Motion, on the understanding that either the noble Earl or I will move it after we have disposed of Amendment 237. I therefore ask leave to withdraw my Motion.

§ Motion, by leave, withdrawn.

§ Clause 31 [Pressure on employer to infringe rights of workers]:

§ 8.22 a.m.

§ LORD DRUMALBYN moved Amendment No. 237:

§ Page 24, line 26, at end insert— ("( ) to induce an employer to comply with a provision declared to be void by an order of the industrial Court under section 6(1B) of this Act, or").

1518

§ The noble Lord said: As has been pointed out earlier, the present drafting of Clause 6 does not make void the agreements which have the effect of operating the pre-entry closed shop if the agreement does not, in its terms, purport to be effective in that way. The Amendments introduced enable the Industrial Court to make an order declaring such agreements void if, on application by a worker, the court finds that the agreement has the effect of maintaining a pre-entry closed shop.

§ The purpose of this Amendment is to make it an unfair industrial practice to organise industrial action with the object of inducing an employer to maintain and comply with a pre-entry closed shop agreement which has been made void by an order of the Industrial Court. If the employer were to do so he would be in contempt of the Court. It is reasonable therefore 'to protect him from industrial action which is intended to place him in such a position. I beg to move.

§ LORD DELACOURT-SMITH
It is of course clear from the introduction to this Amendment which the noble Lord has given that we are getting now into very deep waters on the Bill because, as has been clear from our discussions on Clause 6, this is a matter on which we know strong views are held on both sides in industry. On an earlier occasion (I think on Clause 16) I made a reference to the issues which were now arising in connection with the definition of "unfair industrial practices" and the extent to which it was an unfair industrial practice to seek to induce employers to do certain things. We have a very good example in the Amendment which is before us. The noble Lord is of course quite right in saying that if action is taken contrary to the provision that he is seeking to introduce into the Bill, this could raise the question of the employer concerned being in danger of being in contempt of court. This brings us to the heart of the difficulties which this Bill will raise for the normal conduct of industrial relations.
We have so frequently emphasised that the provisions which Clause 6 seeks to void are provisions which have been entered into fairly widely in industry with the consent of both sides for the promotion of good industrial relations; for the promotion of all those purposes which 1519 the Government themselves have set out in the gateways they have embodied in Schedule 1 to the Bill. In our view, there will understandably be pressure within industry for the maintenance of these arrangements, and in many cases it will be pressure with which the employer will have a good deal of sympathy. He will therefore find himself in the difficulty that, if he responds to pressures from trade unions—and of course there is nothing wrong with trade unions putting pressures on; one of the things trade unions exist for is to put pressure on em-

§ Resolved in the affirmative, Amendment agreed to accordingly.

§ House resumed.