§ Lords amendment: No. 31—Application of 1978 Act to service in armed forces—
§ (".—(1) In section 138 of the 1978 Act (application of Act to Crown employment) for subsection (3) (service in the armed forces excepted) there shall be substituted—
§ "(3) This section applies to service as a member of the naval, military or air forces of the Crown but only 921 in accordance with section 138A and it applies also to employment by any association established for the purposes of Part VI of the Reserve Forces Act 1980."
§ (2) After section 138, there shall be inserted—
§ "Application of Act to armed forces.
§ 138A.—(1) The provisions of this Act which apply, by virtue of section 138, to service as a member of the naval, military or air forces of the crown are—
- Part I;
- in Part II, sections 19 to 22 and 31A;
- Part III;
- in Part IV, section 53;
- Part V, except sections 57A and 80;
- Part VIII; and
- this Part.
§ (2) Her Majesty may, by Order in Council,—
- (a) amend subsection (1) above by making additions to, or omissions from, the provisions for the time being specified in that subsection by an Order under this subsection; and
- (b) make any provision apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the Order.
§ (3) Subject to subsection (5) below, modifications made under subsection (2) above may include provision precluding the making of a complaint or reference to any industrial tribunal unless the person aggrieved has availed himself of the service procedures for the redress of complaints applicable to him.
§ (4) Where modifications include the provision authorised by subsection (3) above the Order in Council shall also include provision designed to secure that the service procedures for the redress of complaints result in a determination, or what is to be treated under the Order as a determination, in sufficient time to enable a complaint or reference to be made to an industrial tribunal.
§ (5) No provision shall be made by virtue of subsection (3) above which has the effect of substituting, for any period specified as the normal period for a complaint or reference on any matter to an industrial tribunal, a period longer than six months.
§ (6) No recommendation shall be made to Her Majesty to make an Order in Council under subsection (2) above unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament.
§ (7) In this section—
§ "the normal period for a complaint or reference", in relation to any matter within the jurisdiction of an industrial tribunal, means the period specified in the relevant enactment as the period within which the complaint or reference must be made, disregarding any provision permitting an extension of that period at the discretion of the tribunal; and
§ "the service procedures for the redress of complaints" means the procedures, excluding those which relate to the making of a report on a complaint to Her Majesty, referred to in sections 180 and 181 of the Army Act 1955, sections 180 and 181 of the Air Force Act 1955 and section 130 of the Naval Discipline Act 1957."")
§ Read a Second time.
§ Mr. Michael Forsyth
I beg to move, That this House doth agree with the Lords in the said amendment.
I am grateful to the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) for his comments on the previous amendment. I am sure that he and his colleagues will also welcome this new clause, which will considerably improve the rights of members of the armed forces to enjoy employment protection measures equivalent to those that are enjoyed by civilian employees.
It has always been recognised that members of the armed forces are in a special employment position, and that measures applying to civilian employees may well be inappropriate. This is why service in the armed forces has up to now been excluded from coverage by the Employment Protection (Consolidation) Act 1978, by 922 virtue of section 138(3). This subsection provides that subsection (1), which applies many of the Act's provisions to Crown employees, does not apply to those in the armed forces. However, in this day and age, such a blanket exclusion is unnecessary and unjustified. The new clause brings the provisions up to date. It applies to the armed forces almost the same list of provisions as apply to Crown servants.
Nevertheless, it is clear that modifications will need to be made to the provisions to make them compatible with the special considerations that necessarily apply to the services. Therefore, the clause contains powers to enable my right hon. Friend the Secretary of State for Defence to make an order providing that internal procedures will need to be exhausted before service men and service women can take a complaint to an industrial tribunal and make any other necessary adaptations.
§ Mr. Eric Martlew (Carlisle)
I have a special responsibility for defence for the Opposition and I welcome this new clause. It has been tabled because of cases of discrimination, especially against pregnant women. I hope that there will be no repeat of the recent case of an RAF sergeant, a skilled technician, who, although she was not dismissed when she had twins, was told that she would not be given housing accommodation and that if she was posted abroad and her children went with her they would not be given education or medical facilities. She was also told that if her children stayed in this country boarding school allowances would not be payable. That was discrimination of the worst kind.
I understand that pressure was one of the reasons for the Government altering the Bill. Another reason is the EC directive, which would probably force the Government to accept contracts of employment. The debate in the other place was short. Will people in the armed forces be allowed a written statement of employment, an itemised pay statement and maternity leave? Will they be given a written statement of reasons for dismissal and will they be allowed the right to claim unfair dismissal and the right to go to an industrial tribunal?
I understand that the clause precludes members of the armed forces from becoming members of a trade union. For that reason, it is important to place on record the rights that the new clause will extend to members of the armed forces. Those rights need to be spelt out in black and white and I hope that the Minister can state the exact meaning of the new clause.
§ Mr. Michael Forsyth
The hon. Gentleman has raised a number of detailed questions. I am grateful to him; I share his concern about, for instance, the rights of women in the armed services who become pregnant.
The hon. Gentleman asked me about certain specific rights. The amendment replaces section 138(3) with a new subsection which will apply to members of the armed forces, relating to the rights specified in new subsection (1) —that is, rights to written statements of the main terms and conditions of employment, as amended to reflect, among other things, the requirement of the EC proof of employment directive. Those terms and conditions are itemised pay statements, the right to be paid when under medical supervision, time off for ante-natal care, maternity rights as amended by the Bill to implement the pregnant 923 workers directive, a written statement of the reason for dismissal, a right not to be unfairly dismissed and resolution of disputes by an industrial tribunal.
I have said that access to an industrial tribunal will be limited until the internal procedures have been followed —although there is a further safeguard in the form of a six-month time limit. Subsections (2)(a) and (b) of new section 138A provide that the provisions specified in subsection (1) may be added to, removed or modified by Order in Council.
The hon. Member for Carlisle (Mr. Martlew), who probably knows more than I do about the details of arrangements for the armed services, will be aware that their members already receive itemised pay statements.
§ ("( ) in Regulation 5 (effect of transfer on contracts of employment, etc)—
- (a) in paragraph (1), at the beginning, there shall be inserted the words "Except where objection is made under paragraph (4A) below,";
- (b) in paragraph (2) after the words "paragraph (I) above there shall be inserted the words "but subject to paragraph (4A) below,";
- (c) after paragraph (4), there shall be inserted—
- "(4A) Paragraphs (1) and (2) above shall not operate to transfer his contract of employment and the rights, powers, duties and liabilities under or in connection with it if the employee informs the transferor or the transferee that he objects to becoming employed by the transferee.
- (4B) where an employee so objects the transfer of the undertaking or part in which he is employed shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor."; and
- (d) in paragraph (5), for the words "Paragraph (1) above is" there shall be substituted the words "Paragraphs (1) and (4A) above are".")
§ Mr. Galbraith
I beg to move, as an amendment to the Lords amendment, amendment (a), in line 19, leave out'not be treated, for any purpose'and insert'be treated, for all purposes'.I fear that peace broke out for only a short time and that we are about to engage in battle again. The Minister and his hon. Friend do not like that idea at all; it frightens them. We are about to discuss the aspect of the Bill that the Minister and the Government probably hate most—the question of the European acquired rights directive on the transfer of engagement. It is more commonly known as TUPE, or the Transfer of Undertakings (Protection of Employment) Regulations 1991.
The Government have always opposed the directive. They have always tried to cover up its significance and have attempted to fiddle the law in order to do so. When they were caught, instead of saying, "It's a fair cop, guy," their line was, "We never did anything. We did not steal the car; we were just borrowing it. If they wanted it back, they could have had it back at any time—honest, m'lud. We were not trying to mislead the public in any way." According to the Government, their proposals were always intended to apply to competitive tendering. We are now dealing with an amendment to the regulation involved.
The amendment was prompted by a case in the European Court of Justice. It is known as the Kastikas 924 The Ministry of Defence is reviewing the policy that denies married quarters and boarding-school allowances to unmarried parents; I am sure that the hon. Gentleman is pleased about that, as I am.
Peace has broken out in our consideration of these Lords amendments. I commend Lords amendment No. 31 to the House.
§ Question put and agreed to.