§ Lords Amendment: No. 51, in page 19, leave out lines 35 to 40.
§ Mr. R. CarrI beg to move, That this House doth agree with the Lords in the said Amendment.
§ This Amendment was moved by the Opposition in another place and accepted by the Government. I hope, therefore, that as well as proving non-controversial, it will be welcomed by hon. Gentlemen opposite. A brief explanation of its purpose may be all that is necessary.
§ Clause 24 lays down that in the event of making dismissals during a strike or irregular industrial action, the employer shall not be liable for a claim for unfair dismissal unless he acts against some of the workers in the group in a discriminating way compared with the rest of the workers in the group, and also unless his reason, or at least his principal reason, for taking dismissal action was on account of the trade union membership activity of the people dismissed prior to the strike or irregular industrial action starting.
§ The effect of the Amendment is to remove that proviso about the protection only being available to trade union activities prior to the strike beginning. We believe that this is right and that those taking part in a genuine trade union activity should be protected in this way.
§ I believe that the right hon. Lady and her hon. Friends admit the need, in the event of a strike, of employers having more protection against the charge of unfair dismissal than they have in normal circumstances. Our Clause is more comparable to the equivalent Clause in the right hon. Lady's Bill. Initially, in the right hon. Lady's Bill she, too, had the condition that the trade union action was protected only if it took place before the strike. We understand why she made that provision, just as to begin with we felt that we had to, but I am glad that, on further consideration and as a result of the case put to us in another place, we have felt able to remove this proviso from the Bill. I therefore hope that the Amendment will commend itself to the House.
1346§ 4.0 p.m.
§ Mr. Harold Walker (Doncaster)We on this side are getting a little weary of having thrown at us the contents of a Bill which was not debated in the House and which, if it had been debated, would have been subjected to the winnowing and harrowing processes of Parliament. Further, the provision to which the right hon. Gentleman has referred was in an entirely different context. Our unfair dismissal procedure was in no way linked with Clause 5.
However, I welcome the Amendment. The Secretary of State really should not drape himself in virtue as he appears to be doing. He should acknowledge that it was the action of the workers' representatives at the I.L.O. General Conference in June, 1971, which was the principal influence in bringing about this change in another place. It is an odd and cutting criticism of the Bill, which the right hon. Gentleman so often presents to the House as a Bill to protect and extend workers' rights, that in the same month as he presents that argument in the House of Commons in London the I.L.O. in Geneva proves that it is exactly the contrary and moves in the opposite direction by passing a recommendation which obliges the right hon. Gentleman to ask the House to agree with this Amendment.
§ Mr. R. CarrI am not quite sure that I understand the point that the hon. Gentleman makes. I am sometimes accused of not being prepared to consult, which is not true. Then it is somehow wrong when, although the unions refuse to confer with me, I, having listened to views which have been expressed, act upon them. I do not feel in any way ashamed of listening to advice from workers' representatives or from anybody else, provided that it is good advice and worthy of being taken seriously.
§ Mr. Norman Buchan (Renfrew, West)I seek a little clarification. It cannot be said that I have intervened frequently during the proceedings on the Bill. I do not know if the right hon. Gentleman is right in saying that this matter would have been the subject of previous legislation. In my few excursions into these debates that seems to have been said on almost every occasion. What I am sure of is that any legislation produced by my right hon. and hon. Friends would not 1347 be couched in the way that this Clause is.
§
The Amendment helps by removing something from the Clause. I cannot see any trade unionist being able to understand what the Clause as it stands means. This is related to Clause 22(2) which provides that
the dismissal of an employee by an employer shall be regarded as having been unfair if the reason for it … was that the employee had exercised, or had indicated his intention to exercise, any of the rights conferred on the employee by section 5(1) … .
§ Clause 5(1) is the basic establishment of trade union rights, providing that a worker has the right to choose membership of a trade union, to take part in the activities of a trade union, and so on. So far, so good.
§
Following Clause 22(2) we come on to Clause 24(2) and (3) and to the proviso which is to be deleted. Subsection (2) provides:
If the reason or principal reason for the dismissal was that the claimant took part in the strike or other industrial action, the dismissal shall not be regarded as unfair … .
§ Those three lines as they stand run counter to Clause 22(2), at any rate in formulation. It is then bound up with the extraordinary proposition in subsection (2)(a)—that is, unless other employees were not so dismissed.
§ This will not make sense to the trade unionist. If there is a provision as to someone else not having been dismissed, it will seem to a trade unionist that he is being singled out for unfair treatment. I believe that this will lead to a great deal of anxiety on the part of trade unionists. As it stands, the very condition relating to others not being dismissed will seem to a trade unionist to be the very condition which will impose it as being the cause of the action.
§ Therefore, it is not only that the language of Clauses 5, 22 and 24 is very complex. It is also that the concept which seems to emerge may well cause a great deal of anxiety among trade unionists. It does not by any means make it sufficiently clear merely to cut off one leg from the proviso at the end. All that this does is to narrow the area of confusion.
§ Mr. R. CarrBy leave of the House, I will seek to reply to the hon. Member 1348 for Renfrew, West (Mr. Buchan). I think that I have understood the point which is worrying him and, if I have, I think that I can put it at rest.
The difference between the situation in Clause 22 and that in Clause 24 is caused by a reason which I thought that I made clear in my brief remarks in introducing the Amendment, namely, that we recognise, as I believe that the Labour Party does, that the situation when industrial action is taking place is different from the situation when it is not. That is why Clause 24 is admittedly different from the other Clauses.
I also apologise for the fact that, because we have all got into the habit of talking, I think rightly, about an action for unfair dismissal, we also talk about things not being unfair rather than their being fair and thus become involved in double negatives which make matters confusing.
I assure the hon. Gentleman that Clause 24 makes it absolutely clear that, if an employer were to discriminate by dismissing in the course of a strike one or more members of a group but not the whole group, he would indeed be open to an action for unfair dismissal. That is absolutely certain. The other thing we say here is that an employer will be open to a claim for unfair dismissal if the principal reason for dismissal is on account of trade union activity. The Clause as originally drafted rendered all this applicable only if the trade union activity took place before the strike began. Now we are deleting that proviso. Trade union activity during the course of the industrial action will also be protected.
§ Question put and agreed to.