ASSESSMENT OF COMPENSATION ON A COMPLAINT UNDER SECTION 46 (Hansard, 5 August 1975)

§ The Minister of State, Department of Employment (Mr. Albert Booth)
I beg to move Amendment No. 111, in page 36, line 35, leave out from first 'the' to end of line 38 and insert: 'infringement of the complainant's right under section 45 above by the employer's action complained of and to any loss sustained by the complainant which is attributable to that action'.

Mr. Deputy Speaker
With this we may discuss Government Amendments Nos. 112 and 114.
We may also discuss Amendment No. 113, in page 37, line 6 leave out ' on or were less favourable than they might reasonably have been expected to be' and insert ' differ from those which might reasonably have been expected to apply to him'.

§ Mr. Booth
The amendments meet a point raised by the Opposition in Committee; namely, that subsection (3) of Clause 48 was not even-handed in the directions it gave to tribunals in assessing the compensation an employee would be entitled to for being prevented or deterred from trade union membership 321 or activities. It required them to consider factors possibly leading to loss, but not any factors which might have occasioned savings. This subsection is deleted by Amendment No. 112.
Subsection (3) was originally included because it was thought that there might be considerable difficulty in establishing financial loss, which would be compensatable, arising from prevention of, or deterrence to, union membership. Subsection (3) in effect invited tribunals to put a price ticket on certain fairly unquantifiable benefits of union membership, and award compensation if they thought compensation was appropriate. However, the better solution seems to be to empower tribunals to award compensation not just for financial loss, but for infringement of rights and for the general affront to an employee of having his fundamental rights of free association impeded. This is comparable to the common law principle that compensation is payable for defamation.
Subsection (6) of the clause, which directs a tribunal to reduce compensation where an employee's own actions have caused or contributed to the right-infringing actions of his employer, will of course apply to assessment of compensation for infringement of rights.
The changed format in no way reduces the discretion of a tribunal to award no compensation at all if it feels that none would be appropriate, and that a declaration of rights would be the appropriate remedy in the circumstances.
In view of the changes we have made and the way we have responded to the points raised with us in Committee and have created a far wider range of options for the tribunal in dealing with infringement of employees' rights, I hope that Amendment No. 113 will not be moved as the Opposition's points have been fully met.

§ Mr. Leon Brittan (Cleveland and Whitby)
I welcome the fact that the Government have sought to respond to the criticisms made during the Committee stage and the complaints that Clause 48 was less than even-handed in relation to assessment of compensation in respect of claims under Clause 46. I shall not seek to move Amendment No. 113, but 322 I have considerable reservations about the manner in which the Government have sought to meet our objections and hope that I shall not be thought churlish if I express them. I do so in full recognition of the fact that the Government have tried to be helpful, but I ask them again to reconsider the way in which they have sought to meet our objections to the specifications of the factors that have to be taken into account in considering compensation. The Government have removed all the factors, but not said that compensation should only be such an amount as the tribunal considers to be just and equitable having regard to the loss sustained by the complainant. We have instead reference also to the infringement of the complainants rights". That is an undesirable way of doing it because of its vagueness. It would be impossible for a tribunal to have any idea what value to put on that without some degree of guidance. It does not seem to me that, to meet the point that the guidance given originally was unsatisfactory, one should try to solve the problem in this somewhat rude way by removing guidance altogether and putting in a vague concept of infringement that has to be taken into account.
Reference was made to precedents in common law and damages being made at large and not in relation to compensation for loss actually suffered. This is a very unusual precedent and a very dangerous one to follow because the law of defamation happens to be a rather exceptional branch of the law. It is only in very exceptional torts that affronts to feelings have been taken into account. It is taken into account in these exceptional circumstances because of the nature of the tort and that it is impossible to assess any damage at all.
That will not be the case here. It will be a supplemental factor which can be assessed and ought not be treated in such a vague and general way. I can tell the Minister from personal experience that the problems caused in a few branches of the law, such as defamation, in assessing damages are very considerable. These precedents should not be imported into legislation of this kind.
I am not happy about this. I shall not seek to move Amendment No. 113, but I hope that the Government will look 323 again at the provisions they have sought to substitute in the light of some of the criticisms made in Committee.

§ Mr. Booth
Although I quoted only the precedent of defamation, it is by no means the only one. There is also provision in the Sex Discrimination Bill for injury to feelings. It must be very difficult, if not impossible, to put a straight financial loss assessment on infringements of rights such as these. But there is the possibility to be sustained. It would be done only under carefully controlled conditions. The tribunal has a right merely to make a declaration and not pay damages, but there could be cases of quite blatant infringements of rights on which one could not place an actual financial loss. The tribunal should have the option of laying down compensation for the infringement of rights by an employer. We claim that our amendments are an adequate response to the points put to us in Committee. The response was in allowing the assessment of any contribution on the part of the employee or any offsetting financial factor.