HL Deb 21 March 2002 vol 632 cc263-320GC

Thursday, 21st March 2002.

The Committee met at four of the clock.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]:

The Deputy Chairman of Committees

Perhaps I may remind Members of the Committee to speak standing and that there are no Divisions in Grand Committee. If there is a Division on the Floor of the House, we shall adjourn for 10 minutes.

Lord Rotherwick

Today the Government are to make a Statement in the House on hunting with dogs. It is the result of the debate on Tuesday in your Lordships' House on hunting, which culminated in more than 400 Peers voting. The large number of Peers voting indicates the importance of the debate.

It would seem important that all noble Lords should have an opportunity of listening to this significant Statement, which has so much bearing on this nation and those who work in the countryside. It would be crass, in my opinion, to refuse to adjourn the Grand Committee in the light of the importance of this Statement.

Baroness Turner of Camden

Although normally I would he happy to agree with a requirement to adjourn by Members of the Committee on the other side, I cannot agree that the Committee should be adjourned for a Statement on the Floor of the House on hunting.

The Employment Bill is a measure of considerable concern to many thousands of workers. My noble friends and I have spent a good deal of time upon it and my noble friend Lord Wedderburn in particular has worked very hard on it.

I therefore could not support the request for an adjournment. We need all the time available to discuss the Bill. I believe that that is also the position of my noble friends.

Lord McCarthy

That is certainly my position.

Lord Sharman

I rise to support the proposal of the noble Lord, Lord Rotherwick. It seems to me that the issue does not relate to the importance of the Bill: we all agree that it is a very important Bill.

On Tuesday, more than 400 Peers voted on the subject to which the Statement relates. The amount of media coverage further confirms it as an important matter. I would like the opportunity to listen to that Statement. We have already had four days in Committee on the Bill and are scheduled to have more days next week. It is not a case of giving the Bill less time.

Baroness Miller of Hendon

I take on board what was said by the noble Baroness, Lady Turner of Camden. However, we were initially given three clays in Grand Committee. We were then given an extra day and we are now being given two more. Our debate is not being guillotined in any way. In any event, I very much doubt that the two additional clays we have been given next week will complete the Bill. We probably would have to have some more time after Easter.

The idea that we are suggesting that we shorten debate on the Bill in order to hear something else is not correct. But that is all. As far as I am concerned, my noble friends Lord Rotherwick and Lady O'Caithan will go downstairs to listen to the Statement. I shall be sad not to, but that is a fact of life if noble Lords opposite feel unable to agree.

The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)

We on this side regard it as a matter of principle that one should always try to accommodate people in these circumstances. However, I believe that establishing a precedent that Grand Committees are brought to a halt if Members consider that Statements or other business taking place in Parliament is of more interest to them would be a very unfortunate one to set. Therefore, we on this side would want to oppose the application.

Baroness Miller of Hendon

I understand exactly what the Minister is saying. It is not a question of establishing a precedent. The fact remains that when a Statement is made in the Chamber, the current business is suspended to allow it to be made. I understand exactly that that occurs because no other space is available, but that is the precedent: when there is a Statement, the current business is suspended so that noble Lords can hear the Statement. I believe that many Members of the Committee opposite, like many of us, did not wish to deal with the Bill in Grand Committee. We would rather have dealt with it on the Floor of the House, in which case we would have had no problem with hearing the Statement. We were pushed into that, as it were. I do not know about Members opposite, as the noble Lord, Lord Wedderburn, is not looking in my direction, but I suspect that, with the amount of work that he has done, he would prefer to be discussing the Bill in the Chamber. However, we have made our point; it will be reported in Hansard. I think it is most unfortunate.

Lord Rotherwick

I do not wish to push this too far but the precedent has already been set. The noble Lord, Lord McIntosh, brought the proceedings to a halt at an earlier point in order to go down to the Chamber for a Statement. So this has already happened. It was convenient for the government side to bring a halt to these proceedings. However, when we wish to do similar, it is not perceived as convenient. I would just make that point.

The Deputy Chairman of Committees

Anyone can move to adjourn the Committee but, just as an amendment, that Motion cannot be voted on and can be agreed only if totally unopposed. Some noble Lords could leave and the quorum of a Committee is three. Therefore, if three noble Lords are still here, including the Chairman, the Committee can carry on, but obviously those who leave the Committee will miss their amendments.

Lord McCarthy

Of course, the business in the Chamber has to be suspended to hear a Statement; otherwise, the Statement could not be heard. The Chamber does not have an option. However, we have an option. The fact that we accepted what I considered a rather bad precedent when we adjourned the Committee the other day does not mean to say that it should be set in stone. I believe that we should continue with the Bill. If we do so, perhaps we shall finish the Committee stage in the two days that have been allocated next week.

The Deputy Chairman of Committees

Let us see what happens when we come to it. I have explained the position and it is up to the Committee to decide what to do.

Schedule 2 [Statutory dispute resolution procedures]:

Lord Wedderburn of Charlton

moved Amendment No. 124A: Page 66, line 19, at end insert— "PART 4FAIRNESS 14 Nothing in the provisions contained in this Schedule shall affect the operation of section 98 of the Employment Rights Act 1996 (c. 18) (general). The noble Lord said: I only say that I am sorry we see this matter differently from Members opposite but we must push on.

Amendment No. 124A is virtually undeniable in its wisdom because it rests upon the statement of my noble and learned friend yesterday when he said in relation to Schedule 2, The statutory procedures seek to set out a minimum requirement that employers (in relation to dismissal) and employees (in relation to grievance) have to go through. It is not intended to affect in any way at all the principles that govern reasonableness".— [Official Report, 20/03/02; col. CWH 201.] It may be that it is not intended to affect them, but there is a widespread doubt shared by a large number of people, including people very experienced in the law to be applied in employment tribunals, that there could be some effect upon the principles as to unfair dismissal and reasonableness which we have tried to summarise by referring to Section 98 of the Employment Rights Act 1996. I could give the Committee many examples of communications but my noble and learned friend may know that we have received a large number of communications which express this worry, let us say.

If my noble and learned friend is saying that everybody who has formed such a doubt is so wrongheaded that, if they pleaded such a point, it would be struck out, he takes upon himself a very high burden of proof. I repeat, if they ever mention such a point in pleadings, they will be struck out. Then, of course, there is no reason to insert a provision which, in one sense, is no more than a provision for the avoidance of doubt. If, however, he does not take that burden upon himself, if he is saying that everybody else is so wrongheaded that they would be, as it were, struck out, and if he accepts that it is possible that he may be wrong at the margins at least and that there could be a possible doubt about the matter, it is in the interests of the principles that he pressed upon us so strongly earlier in relation to Schedule 2—namely, the principles of certainty and clarity and of leaving nothing to be litigated that could be avoided—he should at least consider the wisdom of the amendment. It says what he said; that is, that nothing in Schedule 2 is to affect the principles of reasonableness of cases that go to a tribunal hearing.

Of course, we pointed out to the Minister that Schedule 2 is part of the apparatus that may stop cases getting to a tribunal hearing, but he did not like our arguments on that point and insisted that that was so. The amendment accepts what he said and it would build what he said into the Bill—it does no more and no less than that. I hope that my noble and learned friend will therefore accept it. I beg to move.

Baroness Turner of Camden

I rise to support my noble friend—the amendment also appears in my name. It would be to the benefit of everybody, in a sense, if Section 98, which is clearly headed "Fairness" in the Employment Rights Act 1996. was restated in this Bill.

On a number of occasions during discussion of the Bill, we have said that there is a widespread view which repeatedly appears in the press and often from people who are normally very well informed. That widespread view is that this section and these parts of the Bill are intended to be obstacles to workers who seek to enforce their rights.

The Minister has informed us on a number of occasions that that is not so—that that is not the Government's intention. One way of asserting that it is not would be to refer to the relevant part of the Employment Rights Act 1996, which sets out very clearly the reasons that are regarded as fair and which an employer has to show before an employee can be dismissed. Section 98 states that a reason falls within its provisions, if it … relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do", or if it, relates to the conduct of the employee … is that the employee was redundant, or … is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment". That is a very clear statement, which is headed "Fairness", Our amendment would also import the word "fairness" into the Bill. It would be a good idea if the Government were to think seriously about accepting this amendment.

4.15 p.m.

The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton)

The amendment seeks to ensure that the statutory procedures have no effect on the operation of Section 98 of the Employment Rights Act 1996, as my noble friend Lord Wedderburn has said. That section sets out the general tests to be applied by a tribunal in determining whether an employee has been unfairly dismissed.

As has been stated on a number of occasions in the course of the passage of the Bill, the inter-relationship between the statutory procedures and unfair dismissal is covered explicitly in Clause 34. There is no need to go over the same ground in relation to the schedule. That would unnecessarily complicate the procedures and introduce inappropriate legal language into the procedures which, as I have said on a number of occasions already, the language seeks to avoid—it tries to be clear.

The amendment is also unacceptable in another sense because it confuses the effect of Clause 34. It seems to ignore the fact that Clause 34 in fact introduces significant changes to unfair dismissal law relating to the statutory procedures that favour the employee. In particular, the clause makes it automatically unfair for an employer to dismiss an employee if the relevant statutory procedure has not been followed. It is an important change, as has been acknowledged. It is brought about by introducing new Section 98A into the Employment Rights Act 1996. The proposed new section in the amendment makes a cross-reference to existing Section 98, but ignores new Section 98A altogether.

The amendment is unnecessary because, in direct response to the point made by my noble friend Lord Wedderburn of Charlton, the statute is sufficiently clear to deal with all the points that he made. It would make it more difficult to understand the schedule and it would make the law more complicated, as would many of the amendments that have been suggested by my noble friend. It would create confusion about the effects of Clause 34 and it could possibly undermine the additional protections given to employees by new Section 98A.

I hope that in the light of my remarks, the noble Lord will feel able to withdraw his amendment.

Lord McCarthy

I intervene to make it clear that the amendment does not appear with my name is because they did not put it on. It is not that I do not agree with it in any way.

I turn to the comments of the noble and learned Lord, Lord Falconer of Thoroton, on a very modest little amendment. That amendment sought to put on to the face of the Bill that there should be an investigation to establish the facts. We were, therefore, gratified when the Minister of State, though turning down our amendment, made this very generous statement: The statutory procedures seek to set out a minimum requirement that employers (in relation to dismissal) and employees (in relation to grievance) have to go through. It is not intended to affect in any way at all the principles that govern reasonableness. As I made clear on Monday afternoon, if there is not an investigation, in virtually every case, the test would make the business unfair".— [Official Report, 20/3/02; col. CWH 201.] However, his generous statement was in fact a more profound and more general statement.

Our amendment seeks this time to build on what the Minister has actually said. I do not believe that anyone would find it confusing; they would learn from it 'what they might not be certain of if they simply read the Bill; that is, that you could not use the minimum procedure in order to get round the way that the criteria between fairness and unfairness and reasonableness, and so on, had been built up on the basis of the other Employment Rights Act and the decisions of tribunals. I do not see any way that anybody would be confused if the very words of the Minister were in effect included as the basis of this statement.

Lord Wedderburn of Charlton

I am sorry that my noble and learned friend Lord Falconer of Thornton will not accept even the spirit of the amendment, although most of his objections were based on its form. As for it being legalistic and therefore not appropriate to Schedule 2, I will make a plea to my noble and learned friend. I plead with him not use this word "legalistic" because nobody is sure what it means. It is rather like "gross negligence", which is negligence with the addition of a vituperative epithet. "Legalistic" is "legal" with a few letters at the end to make it sound nasty.

There is much that is legal in Schedule 2. It refers to the test of conduct, characteristic or other circumstances in regard to what is to be alleged in regard to an employee's misconduct or breach of his obligations. That statement is taken straight out of Section 98 and will be interpreted by a court or tribunal quite properly by reference to the legal source from which it comes.

Similarly, almost every other phrase in Schedule 2 is couched quite properly in legal language, and so we drew up our amendment in proper legal language. Quite why the Minister thinks that it refers to Section 98A, or has somehow omitted to notice Section 98A which is introduced by Clause 34, I cannot for the life of me understand. It has nothing to do with Section 98A; it says it is to do with Section 98. I thought the Minister was going to criticise the amendment because it should have been moved in relation to Clause 29 and not to Schedule 2. That is a defect in the amendment and on Report we shall no doubt cure it by tabling a similar amendment to Clause 29, if, after reflection, we conclude that we should do so. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 30 [Contracts of Employment]:

[Amendment No. 125 had been withdrawn from the Marshalled List.]

Lord McCarthy

moved Amendment No. 126: Page 35, line 33, leave out", and not inconsistent with,". The noble Lord said: In moving Amendment No. 126, I shall speak also to Amendment No. 127. The amendments take us into Clause 30, which, as Members of the Committee well know, provides the mechanism for placing the statutory procedures of Schedule 2 into the individual contracts. The clause begins in a nice, unambiguous way by saying that they shall have effect notwithstanding existing agreements to the contrary. That is then reversed—I believe that in drafting terms it is a little cumbrous—by allowing the continuation of agreements, not inconsistent with, the requirements of the statutory procedure". Therefore, the statutory procedure has effect irrespective of what anybody has. However, that is not really the case because if something is not inconsistent with the statutory procedures, that is all right.

We consider the word "inconsistent" to be rather ambiguous. In what way would the requirement be inconsistent? We prefer to make it clear that we want the requirement to be consistent only in one way; that is, not more painful to employees. In other words, we want an agreement which is more favourable to employees. We want an improvement in the dispute procedure. That is difficult to imagine, although I suppose that it is just possible to imagine many existing procedures which are less favourable than the statutory procedures as most will be rather better and certainly more comprehensive. We are saying "Well, they can stand: if they are not less favourable, they can stand". In other words, we are saying that there is an inconsistency, conflict or ambiguity which would make us prefer the word "favourable" to "inconsistent".

Obviously if one says that—it is not the only example but the most obvious example of what one means—one is referring to any procedure based upon the ACAS code. Although we have done so before, it is worth again trying to bring to the attention of the Government and the Committee the differences between the existing ACAS code—many codes and procedures are better than the ACAS code—and the statutory procedures.

As I believe I have said before, the key to the ACAS code is a paragraph, which is not very long, setting out the 11 essential features of dispute procedures. I calculate that approximately five of those are not in the statutory procedure. Therefore, we have to ask ourselves whether they are inconsistent with the statutory procedure. Might it be argued that that is the case?

The first is in many ways the most important. If I were allowed to put one thing into the statutory procedures I might consider this one. However, my colleagues might not agree, and I do not believe that the Government would consider it for a moment. It would be the specification and limitation on the management's right to decide discipline; that is, the principle that not everybody can sack. Not everyone in a company or organisation can be allowed to sack people. There must he a specification so that we know who has the right to dismiss. There is nothing about that in the statutory procedure but it is, of course, in the ACAS procedure.

Secondly, and almost as important. is the principle which is observed in most procedures that I know of; that is, the relevance of the past record of the individual worker. One asks questions about the employee such as; is this the first thing that he did; does he have nine years of exemplary conduct; is this the first offence to come to light; and, if it is, has he received an informal, formal or final warning? If it is the final warning and if the worker commits the offence persistently, then dismissal may well be the appropriate penalty. One will not find any reference to the past record of conduct. Anyone who takes the procedure seriously and says, "That's all they're getting out of me" will say that anybody can sack on the first offence. Certainly, there is nothing in the Act that suggests that that involves rather bad industrial relations. I will not go into the utility of the suspension alternative, which we have debated. Most decent procedures do something about suspension. We have tried to add to the Bill the need for investigation, examination, explanation but nobody has considered that.

I turn to the special case of gross dismissal. One of the most novel things that the Government have done is to say that where there is gross misconduct justifying dismissal, there needs to be a shortened and simplified procedure. We have asked them to justify that but they have never really done so. I do not know of a precedent. The most complicated, difficult and ambiguous set of circumstances are involved. My noble friend does not even like the phrase, "gross misconduct but it is used in industry. Most people who use it appreciate that if they are going to sack somebody on the basis of gross misconduct. they had better investigate, take their time, look at the case in an independent way, may be bring some third party in and use suspension. There is nothing whatever in the stated procedure—the statutory procedure.

It is worth saying, at the risk of delaying the Committee, that behind all this—behind the differences between the ACAS procedure and many other procedures and the statutory procedure—is nothing less than the philosophy of the treatment of workers. It is not an accident that the idea of a statutory procedure—the essential elements of the statutory procedure—comes from the employers. Discipline is seen as something that can he done by anybody. Discipline does not have to be consistent; it does not have to be based on your past record; and it does not have to be placed on anything else but an exercise of managerial prerogatives. That is the philosophy. The alternative is that discipline could be consistent, that it should fit itself to the individual and that as far as possible it should be remedial and constructive. This is the philosophy of personnel management, not the philosophy of managerial prerogatives.

We say, therefore, that the approach is not an accident. If the Government are not to line themselves up completely behind the philosophy that regards discipline as something that only management is entitled to do and does not have to justify the use of—if you want to get discipline justified you have to go to a tribunal, because that is the only way you can get it justified—we say that they ought to be prepared to make this significant but small change to Clause 30. In place of "inconsistent with" we should have, less favourable to the employees". I beg to move.

Lord Falconer of Thoroton

These amendments seek to ensure that any agreed procedures must always be at least as "favourable" to the employee as the statutory procedures. Thus, the contractual or voluntary procedures can be entirely different, provided that they are at least as favourable. The existing wording of the subsection ensures that the contractual procedures must be "not inconsistent" with the statutory procedures. Both formulations are plainly seeking to achieve a similar objective, so this is purely a drafting issue. I believe that the existing wording is to be preferred. I recognise that the intention behind the amendments is to allow employers and employees a greater degree of flexibility in their choice of contractually binding procedures. However, there are problems with the amendments. Deciding whether a procedure operating in a significantly different way from a statutory procedure was or was not as favourable would be a difficult and largely subjective exercise. It would also be difficult to predict the outcome. These amendments introduce a lack of clarity and I believe they can only be undesirable here, if what one is after is clarity. Our test is significantly less subjective and ensures that the contractual procedures must be consistent with the statutory procedures, while allowing the flexibility for the procedures to contain more stages or set out more detailed requirements. I admit this test too involves an element of judgment but I believe that in practice it would be easier to apply. In the light of what I have said, I hope that my noble friend will feel able to withdraw his amendment.

4.30 p.m.

Lord Wedderburn of Charlton

I am interested in that comment by my noble and learned friend. It seems to me that he is in two difficulties. He says that judging whether something is not less favourable to an employee is far too uncertain, it lacks clarity and is subjective. My noble friend touched on one of the two answers to that; namely, that it is also a matter of judgment whether something is inconsistent with something else; it is not necessarily obvious. Of course, there is a judgment to be formed on both applications.

However, that which is not less favourable to the employee than a particular term or condition of employment has appeared in our employment law on previous occasions. I do not know what precedent my noble and learned friend wishes to cite to show that it was so hopelessly uncertain and lacking in clarity that it could not be applied. It is applied time and again. In Section 185 of the consolidation Act 1992 we come across terms and conditions of employment in an award which must not he ousted by subsequent terms and conditions other than if they are an improvement upon those terms and conditions. That formula is not very different from terms and conditions that are not less favourable. There is nothing in the argument that Amendment No. 127 is so uncertain that it could not he applied.

My noble and learned friend even appears to accept the argument that the procedures put forward and operated in a place of work by an employer could possibly he less than the statutory procedures in Schedule 2. Perhaps he will give me an example of a procedure less than the modified procedures, for example, which he believes would he a fair procedure for an employer to operate. My noble and learned friend indicates that he did not say that.

If the employer should not introduce procedures which are worse—I use the word "worse" generally—than Schedule 2 then there is nothing wrong with the formula which states that they should be not less favourable to the employee. They should be as good for the worker as the Schedule 2 procedures, which are, heaven knows, bad enough, especially in the modified procedures, and they must not be worse than the dreadfully unfair procedures that the Government are implying into every contract of employment. That is the sense of Amendment No. 127. I hope that it will he printed in Hansard that instead of the words "not inconsistent with" there should be the words "which is not less favourable to the employee". Nothing could be more just and reasonable than that.

Lord McCarthy

I want to raise one point with the Minister. He intervened during my noble friend's comments and said, if I have this right, that lie believed that there could be procedures which could not he worse. He was then asked to give an example and he said he did not say that. Hansard will tell us what he said.

However, I believe that the real question is whether the Minister can cite a procedure which would he inconsistent with the statutory procedures. I cannot think of one. If he cannot think of a procedure which is inconsistent, then the phrase means nothing.

Lord Falconer of Thoroton

One example would be not having to send a letter. This argument, which is absolutely riveting, has been on the issue of whether we should use the words "not inconsistent with" or "not less favourable to the employee". It is an important argument on which time should be spent, and both sides know what the issues are.

Lord McCarthy

Perhaps I may withdraw the amendment and say a few words. I do not mind the Minister saying that the amendments lack clarity: I do not mind him saying that they are subjective; and I do not mind him saying that they are designed to help employees—of course, they are. However, at one stage he said that they were in fact doing the same thing. That is just nonsense. The fact is that we want a lot more put in. Most people would accept—I think the Minister would accept this—for example, that to have different stages in a procedure is a significant change and that to have specification of the use of a suspension is an additional change. That is why the CBI does not want these things included.

We may not be clear and we may not be objective, but we are different. To say that what we want put on the face of the Bill is the same as what the Government have done is not only inconsistent with saying that we are trying to benefit employees but is also complete nonsense. I do not mind the Minister saying we are silly but he should not say we are the same. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 127 not moved.]

Baroness Turner of Camden

moved Amendment No. 128: Page 35, line 34, at end insert— ( ) The employer shall explain to the employee in writing the effect of the requirement imposed by any relevant procedure under subsection (1) and the obligation of the employee shall be limited to an obligation to comply with the requirements of either—

  1. (a) the relevant statutory procedures, or
  2. (b) the relevant statutory procedures as explained to him in writing by his employer where that explanation describes steps more beneficial to, or less onerous upon, the employee."
The noble Baroness said: I beg to move Amendment No. 128 which is on a rather similar point. Clause 30, which we are now discussing, says in subsection (1) that: Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure. If obligations are imposed upon an employee, the employee should really be informed about them. One of the reasons for the amendment is that we want the employer to explain in writing to the employee—I stress the words "in writing"— the effect of the requirement imposed by any relevant procedure under subsection (1) and the obligation of the employee shall be limited to an obligation to comply with the requirements of either— (a) the relevant statutory procedures, or"— and then we go a little further and say— (b) the relevant statutory procedures as explained to him in writing by his employer where that explanation describes steps more beneficial to, or less onerous upon, the employee". In other words, we accept that there are many instances—and people have written to me about this—where existing procedures are actually better and more beneficial to an employee. A number of people have written to say that they have read about the new Bill but that they are rather better off as they are.

The object of the amendment is to make sure that an employee shall be told of his obligations as regards the relevant procedure and also as regards any procedures that have been freely negotiated and accepted by both sides in the particular enterprise concerned.

I hope the Government will agree that this is quite obviously a necessary amendment. If people are going to accept obligations, they must know what those obligations are and they must have those obligations in writing. It seems to me it would be entirely legitimate for the Bill to require the employer to explain that matter to the employee. I hope the Minister will be prepared to accept the amendment. I beg to move.

Baroness Miller of Hendon

Before the Minister responds, may I say that I do not think this is a sensible amendment; in fact, I totally oppose it? This would put a huge burden on small businesses. There are many small businesses employing people—in fact, most businesses are small businesses. I read very carefully what the amendment says. It says that the employer will explain in writing the effect of this matter. However, there will be many cases where the employer himself may not understand it very well. There used to be a concept that everybody understood what the law meant, or was presumed to know what the law meant.

If this measure is absolutely necessary, then I am sure ACAS must have a budget to deal with it. Posters or leaflets could be placed in employment offices and so on. However, it is absolutely ludicrous to say that the burden should fall upon the employer.

Lord Falconer of Thoroton

I am on the side of my noble friend Lady Turner in this. My only problem in relation to the amendment is that it is unnecessary because the obligation already exists.

The noble Baroness's Amendment No. 128 seeks to impose a requirement on employers to inform employees about the existence of the statutory procedures or of their contractual procedures where they are more beneficial to, or less onerous upon, the employee". Put aside the fact that we might have a complaint about the uncertainty of the last hit of that phrase, as occurred with Amendment No. 127. As I say, the principle is right but the measure is unnecessary. Under Section 3 of the Employment Rights Act 1996, employers must include details of their disciplinary and grievance procedures, where they are operated, in the "note" included in the statement of employment particulars. Clause 36 of this Bill removes the existing small firms exemption in Section 3—so it will apply to employers of all sizes.

Clause 30 ensures that the statutory procedures will be incorporated into contracts as an implied term where employers do not already operate more elaborate procedures. This means that all employers and all employees will henceforward have disciplinary and grievance procedures. By the same token, employers will therefore be required to inform all employees about these procedures in the note in the written statement. We have thereby ensured that employees will be made aware of the application of the statutory procedures. In the light of that explanation, which I hope my noble friend will agree exactly delivers the purpose of the amendment, I hope that she might feel able to withdraw her amendment.

Lord Wedderburn of Charlton

I wonder whether my noble and learned friend Lord Falconer of Thoroton would pause for a moment on Section 3 of the Employment Rights Act 1996 on which he relies. Section 3(1)(a) says that the employer shall include in what he gives the employee a note, specifying any disciplinary rules applicable to the employee"— that was the bit that I understood my noble and learned friend to rely upon— or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee". So the employer does not actually have to set out the disciplinary rules. His note can say, "You are governed by Schedule 2 of the Employment Act 2002". In fact, many notes do refer to other documents. For example, they refer to works' rules and very frequently they refer to procedures which are in other documents.

I hesitate to complicate my noble and learned friend's notes but this matter relates also to Amendment No. 192. I wonder whether he will be resisting our Amendment No. 192 because that says that the employer must set out an explanation of the relevant statutory procedures. If my noble and learned friend does not want to comment on it now, we will come to it, but it links up.

As the Minister said before, this is a very important introduction, a novel legal introduction, into the contract of employment and into the employment relationship. We wonder whether it is sufficient that the employer should be allowed simply to refer to the provisions of the 2002 Act which is reasonably accessible to the employee. He does not want to be what he calls "legal" or "legalistic", but the employee has to go off and read the Act, and look at Schedule 2 if that is what the note says.

I do not think that is sufficient. It is certainly not true to say that what we say in this amendment is the equivalent of Section 3. We have very carefully not adopted the option of Section 3 of just referring to any other document that the employee then has to go off and read.

I am sure that my noble and learned friend will agree that this amendment is not the same as Section 3, and perhaps would at any rate give it a little further consideration.

Lord Falconer of Thoroton

Let me respond The effect of Section 3 is as my noble friend read it. It means one has to give a note or refer to a document which is reasonably accessible to the employee.

The purpose of Section 3 of the other Act is plainly intended to ensure that the employee has a note or reasonable access to the description of the procedure, which is the purpose I believe my noble friend Lady Turner of Camden had in her amendment.

4.45 p.m.

Baroness Turner of Camden

I thank the Minister for his response to the amendment and I am very pleased that he accepts in principle what we have to say. As for the noble Baroness, Lady Miller of Hendon, I have to say to her that she has her usual concern for small businesses, but I am sure that there will be plenty of information available once the Bill becomes an Act, to enable small businesses to cope with any new requirements that emerge as a result of the legislation. I do not think that we need bother too much about the burden on businesses, which I do not think will be extremely onerous.

As to what we will do with the amendment, I would like to read in Hansardwhat the Minister has said because of a very interesting point raised by my noble friend Lord Wedderburn. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 129 not moved.]

Clause 30 agreed to.

Lord Wedderburn of Charlton

moved Amendment No. 130: After Clause 30, insert the following new clause— "TERMINATION OF CONTRACT AND NON-COMPLETION OF STATUTORY PROCEDURES Where a dismissal falls within section 97(1)(b) of the Employment Rights Act 1996 (c. 18) (effective date of termination; termination without notice), the effective due of termination shall not take effect before any applicable statutory procedure has been completed. The noble Lord said: Amendment. No. 130 raises a point which I think has not been addressed in the debates on the Bill so far. A large number of legal consequences and consequences in life are dependent upon what is the moment at which a contract of employment terminates.

The amendment seeks to address a problem which is consequent upon the insertion into the contract of employment, as statutorily implied terms, of the procedures in Schedule 2. Indeed, Government spokesmen have made much of the fact that both sides to the employment contract will now have the advantages. That is as they see it because they do not accept any of the comments on Schedule 2 that its procedures are unfair in various ways. They see the Bill as providing the advantage—and they are right if it solves a single dispute at the work place level, but at what cost?—of having these procedures as the implied obligations of the contract on both sides. The employer must operate his disciplinary procedures in accordance with Schedule 2. The employee must operate the grievance procedures in Schedule 2. They become an inherent part of the employment relationship based on the contract.

If that is so, normal principle would suggest that the employment contract should be worked through before anyone can arbitrarily bring it to an end. It will be most inconsistent—to use the Minister's word on the previous amendment—to suggest that the employer and employee cannot oust the procedures by agreement while allowing the employer to oust the procedures before the employee has had the benefit of them in terms of his own dismissal.

On that basis, one could have moved an amendment to suggest that no dismissal should actually reach the effective date of termination—that is in the legal sense—until the procedures have been exhausted. If these are so beneficial at the place of work as the Government seem to think, we really ought to have them worked through, not just before anyone goes to a tribunal but before the employment relationship is shattered.

In fact, our amendment does not go as far as that. Our amendment concentrates on those parts of the dismissal scenario which fall within Section 97(1)(b) of the Employment Rights Act 1996. When a dismissal is terminated on notice, the effective date of termination is normally the date on which the notice expires. However, under Section 97(1)(b) dealing with summary dismissals, the normal view—and I say "normal view" because there is a doubt here—is that the employer can rupture the employment relationship at the moment of a summary dismissal. I am sorry to detain Members of Committee about that point but there are a number present who will not appreciate what the doubt is.

The doubt is that under the old law of master and servant, the summary dismissal of an employee, or the summary dismissal of a servant, took effect there and then. There has, however, eventuated a development of contract law that the termination of a contract does not come about in face of a breach on the other side, except it be accepted or elected to accept by the other party.

There is a whole string of cases on that to which I wish to refer. The most convenient way to refer to them would be to cite a passage in the recent case of Cerberus Software Ltd v Rowley. In spelling it out, Members of the Committee will remember that I try to help Hansard as we do not have a shorthand writer. The case verges on the sticks of legal principle. Lord Justice Sedley in the Court of Appeal ([2001] IRLR 165) —it is not in the Library but I have managed to obtain a copy and I am sure the Minister does not have it—said this: In contract law generally, an unaccepted repudiation may be, as Asquith LJ said it was (Howard v Picklbrd Tool Co Ltd [1951] 1KB 417, 421), a thing writ in water; but in the case of a summary dismissal the conventional wisdom is that it is carved in stone (Sanders v Ernest Neale Ltd [1974] IRLR 236), since an employee cannot make his employer give him work any more than his employer can compel him to work. There is in consequence a longstanding and formally unresolved debate as to whether the contract of employment should be regarded as a legal exception to the general rule. But the useful discussion of the 'automatic' and 'elective' theories of job termination in Deakin and Morris, Labour Law"— and he cites the passage, includes this telling passage at pp.417–418: 'There is also support for the elective theory from the point of view of authority. It was accepted by a majority of the Court of Appeal in Gunton v Richmond-upon-Thames London Borough Council [1980] IRLR 321 and was approved after extensive analyses at first instance in Thomas Marshall (Exports) Ltd v Guinle [1978] IRLR 174 and Dietman v Brent London Borough Council [1987] IRLR 259. Numerous decisions in which employees have been granted declarations or injunctions to prevent employers acting in breach of disciplinary procedures also depend on the application of the elective theory'.". I pause to say that this is directly in point as regards procedures. He goes on: 'including the decision of the House of Lords in McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594; it is not clear if or how far these decisions constitute some kind of exceptional category. In Rigby v Ferodo Ltd [1987] IRLR 516, the House of Lords declined to decide the matter, in a case not directly concerned with dismissal but with a cut in wages imposed, in breach of contract, by the employer. However, Lord Oliver said: 'I entirely fail to see how the continuance of the primary contractual obligation can be made to depend on the subjective desire of the contract-breaker and I do not understand what is meant by the injured party having no alternative but to accept the breach … I can see no reason in law or in logic why, leaving aside for the moment the extreme case of outright dismissal or [on the other side] walk-out, a contract of employment should be on any different footing from any other contract… Lord Justice Sedley goes on to say: Despite this, the application of the elective theory continues to be controversial, and it is unfortunate that the House of Lords did not choose to clarify the law when it could arguably have done so in Rigby v Ferodo Ltd. More recently, in Boyo v Lambeth London Borough Council [1995] IRLR 50, a unanimous Court of Appeal took the opportunity to cast fresh doubt on the elective theory, while at the same time feeling bound to apply the majority ruling in the earlier judgment of the Court of Appeal, Gunton v Richmond-upon-Thames London Borough Council. Gunton, according to the Court in Boyo, had produced law distinctly lacking in rhyme and reason, and was not to be preferred, in principle, to the judgment of Sir John Donaldson P, the president in Sanders v Ernest A Neal [1974] IRLR 236 laying out the case for the automatic theory. Given such dicta, the future of the elective theory can hardly be regarded as assured". It is important to understand the present position which that represents, because it is a mess. Therefore, in pursuit of the principles which the noble and learned Lord has put before us—namely, of pursuing certainty and clarity—that uncertainty, which will give rise to new litigation and even greater litigation under Schedule 2 even than the present position, really should be cured. It should be cured in favour of the principle that is put into legislation. Indeed, it is the Government's choice to put these procedures in Schedule 2 into the contract of employment by law. That is curious because they could have done so by regulation. They did not have to mention the contract of employment and it would have been a simpler Bill if they had not done so.

They may well have been right to do so because today statute is implying more terms into contracts and, if they take Schedule 2 so seriously—overlooking its unfairness—I can understand why they did it. However, if they do so, they should recognise the fact that these procedures should be completed before at least a summary dismissal—possibly any dismissal but our amendment says "a summary dismissal"—is effective and before its effective date of termination is in law expressed in the simple fact. What is the simple fact? The simple fact is that the worker is losing his job. If this amendment is resisted, he can lose his job with summary dismissal and with consequences not merely—

The Deputy Chairman of Committees

Would the noble Lord come to the end of his sentence quickly?

Lord Wedderburn of Charlton

I am so sorry. I was saying with the consequences not merely upon the contract of employment and his wages but also, as my noble friend Lady Turner said the other day, upon his social security provision—a matter on which she may well wish to expand to the Committee on this amendment. I beg to move.

The Deputy Chairman of Committees

A Division has been called. The Committee stands adjourned for 10 minutes until 5.8 p.m.

[The Sitting was suspended_ for a Division in the House from 4.58 to 5.8 p.m.]

The Deputy Chairman of Committees (Lord Geddes)

Before continuing discussions of Amendment No. 130, I have to advise the Committee that the Chief Reporter has asked me to announce that unfortunately Westminster Sound, due to a technical fault, did not record the opening speeches concerning the Statement on hunting. I will therefore, with the agreement of Members of the Committee, read back into the record the advice of the noble Lord, Lord Brougham and Vaux, regarding the procedural position: "Anyone can move to adjourn the Committee but, just as an amendment, that Motion cannot be voted on and can be agreed only if totally unopposed".

The Committee may now continue discussion on Amendment No. 130.

Lord Wedderburn of Charlton

Is it working now?

The Deputy Chairman of Committees

I am advised that the answer to the noble Lord's question is yes.

Lord Falconer of Thoroton

This amendment seeks to provide that where an employee is dismissed without notice, the "effective date of termination" shall not take effect until the applicable statutory procedure has been completed. The effective date of termination is used in a number of places in the unfair dismissal provisions of the Employment Rights Act 1996 and determines, for example, whether the employee has sufficient continuous employment to claim unfair dismissal and the date from which the time limit for making a claim runs. It is an important date.

We have already discussed gross misconduct in relation to the amendments tabled to Schedule 2 and how the procedures will apply in such cases. Where the full procedure is used, employers should not in any event dismiss until the meeting required by step 2 has taken place.

The amendment in practice is presumably aimed at the case where we intend that the modified procedure should apply; that is, where the employer dismisses more or less instantly, probably for what he believes to be gross misconduct, without giving notice. It would artificially divorce the "effective date of termination" in such cases from the time when the dismissal really takes place. It will not have the result that the dismissal is made unfair if it would otherwise be fair. However, it would, if I understand it correctly, benefit some employees at the margins by securing that they have the necessary continuous employment to claim unfair dismissal when they would not otherwise do so. I have to say that the uncertainty generated by this amendment seems a high price to pay for that small benefit to a marginal number of employees.

However, the thrust of the argument of my noble friend Lord Wedderburn is that there is uncertainty of a legal sort. He read to us an extract from the Cerherus case, which indicates that there is a doubt in the law about whether one needs to accept a repudiatory breach of a contract of employment by an employer, where one is an employee, to bring the contract to an end. That uncertainty in law, he says, means that you should bring clarity to the issue by specifying that the effective date of termination should be once the statutory procedure is completed.

In effect, that would separate the legal date of the termination of a contract from the effective date of termination in the law which, in itself, would bring additional uncertainties. Where one is dealing with summary or instant dismissal, in practice I here is very rarely a difficulty about when the contract came to an end. I therefore do not think that the uncertainty which my noble friend identifies is as had in practice as to justify what would be a quite significant change in the law. If the intention is to prevent dismissal without notice, the amendment does not succeed in that aim in any event.

On the basis, however, that it does succeed, I can only say that we have no intention of going beyond what is in the procedures and providing that the effective date of termination will be delayed until the procedure has been completed or of preventing all dismissals without notice. Our intention is not to prevent summary dismissals but to ensure that, where a dismissal takes place, suitable internal procedures are followed. In our view, different procedures are suitable where a dismissal is instant.

So far as the drafting of the amendment is concerned, as I read it, it says there is no effective date of termination before any applicable statutory procedure has been completed. This would mean that the employer could prevent there ever being an effective date of termination, thereby preventing the employee ever getting to an industrial tribunal, which cannot be the intention of my noble friend.

5.15 p.m.

Lord Wedderburn of Charlton

I was struck by my noble and learned friend's first description of the effects of the amendment; namely, that it affects matters such as continuous employment. He said that its effect would bring a small benefit to a marginal number of workers. What an unthinkable consequence! If that is so—I adopt for the moment the hypothesis that his description is correct—I am not ashamed to move such an amendment.

As my noble and learned friend explained, there are workers whose jobs are being destroyed by summary dismissal. He did not even bother to say it had to be lawful summary dismissal because, of course, the old master and servant rule treats summary dismissal as the end of the job. If that is his understanding of the law, despite the uncertainty in the case law—if the Government are suggesting to us and advising us that the rule is in summary dismissal as it was in the old master and servant cases and as it was repeated in Sanders v Neale—we have to listen very seriously to that.

It is no surprise in the light of that advice that the amendment would bring a small benefit to a marginal number of workers. If I were to exercise judgment on the proposition of the noble and learned Lord, I would think that perhaps the number would be more than marginal and there could be cases where the benefit was more than small. As for the idea that the amendment would stop a case from getting to employment tribunal. I think, with great respect, that that is quite fanciful because, where the job has purportedly been destroyed by an employer who will not go through the procedure, the employee could sue in the county court, quite apart from the tribunal and recover his wages until the end—

Lord Falconer of Thoroton

Is my noble friend saying that that would destroy the unfair dismissal claim?

Lord Wedderburn of Charlton

I do not believe that it would destroy the unfair dismissal claim, but I do not want to prolong the argument on that. I am saying that the employer would still have a remedy and he would be advised he had a remedy—if my noble and learned friend were to advise him, his advice would be that he had a remedy. It is playing about with things to suggest that that is an objection to the amendment. It really will not do to tell me that that would improve the position of workers on their continuity of employment, which is absolutely fundamental to their position at work, that it would preserve their job because the effective termination would be postponed and that these very important procedures would have that great protective effect, whether a marginal number or a large number is involved, but that it cannot be made clear in the Bill that it will have that effect. "We will imply it in your contract", say the Government or the CBI or whoever it was who first thought up this dreadful schedule and this dreadful Bill in this particular part. "We shall put it in your contract, but don't think you can come along to us and make it clear on the face of the Bill that the small benefit that it might bring you will really get to you. You're just a marginal number of workers".

The philosophy of the Bill, which has been promoted under the guise of helping industrial relations, is in fact going to help neither that marginal number of workers nor—I tell the Government about this sincerely—will it help industrial relations because people will rumble it. Someone who is summarily dismissed is going to say, "Well what about this procedure? Why should I be thrown out on the street and thrown to the social security office, where the employer is going to inform the social security authorities that I was dismissed for misconduct. which I deny? It's no good that. I shall have benefits withdrawn from me if I'm dismissed for misconduct. What about this procedure?" "Oh no", say the Government, "Your date of termination of your employment must be immediate. We can't wait for our procedures. That might bring you a small benefit". If that is not the reason, what other reason is there? It is not that the employee cannot get to a tribunal. Here we have the Government saying, "This amendment is preposterous because it will stop a tribunal claim". They were out to stop 40,000 tribunal claims; that is the object of the Bill. My noble and learned friend shakes his head, but if he looks at the Government's response to consultation, he will see that it is stated four times that the effect of the Bill will be—with a time lag possibly of one year—the reduction of employment tribunal cases by 30,000 to 40,000. They also set out the millions of pounds that will be saved. He really cannot shake his head when I mention this inconvenient fact.

This is a most serious step by the Government. Workers will blame their employers unless their unions bring to their minds the effect of a misconduct, summary dismissal, without necessary investigation. We are not now into the question of whether the tribunal finds it unfair. We are dealing with the procedure and the procedure can take place without investigation. Sometimes my noble friends and I forget that we must remind people what happened yesterday. Yesterday it was made absolutely clear that the Government would not insert into the modified procedure the principle of prior investigation. They refused and, therefore, the employer can dismiss summarily for misconduct without investigation. He need not—indeed, no one need—complete or initiate the procedures because they are no good to the employee; his job is finished and he is out on the street.

I doubt that my noble and learned friend was smiling at what I said, but something amused him. I am not amused, and I do not believe that my noble friends—both those who put their name to the amendment and those who did not—will be amused either. This is a most serious matter. At present the law is obscure, although the Government have expressed the view, through my noble and learned friend, that the principle of Sanders v Ernest A Neale Ltdapplies and that Lord Justice Sedley is wrong in saying that the position is obscure and uncertain.

That is a most important statement which no doubt we shall have to consider. It will no doubt be cited in relevant cases as the Government's intention behind the Bill on this matter. First, they want Sanders v Ernest A Neale Ltd to apply; secondly, they do not want to agree to an amendment which would cure the uncertainty; and, thirdly, they do not want to cure the uncertainty in a manner which they fully admit would bring a small benefit to workers.

I do not understand why Ministers cannot simply say to us, "We shall take it away and look at it". Were it not my own Government, I would say that it was arrogant. On many occasions in the 1980s I said that propositions that were put to us were arrogant. When Ministers rejected the existence of some causes of action which were in all the books, I said that that was arrogant.

On this occasion, were it not my own Government, I believe I should have to say that it was arrogant to say, "Yes, it is an uncertainty, but we are curing it because Sanders v Ernest A Neale Ltd applies. If you had your way, you would cure the uncertainty which perhaps you say exists, and it would bring a small benefit to workers". No other reason has been given for not at least dealing with the obscurities of when the effective date of termination of contracts of employment and dismissals arises.

No doubt the Court of Appeal will one day be presented with this record. I am grateful to the Deputy Chairman of Committees for making it clear that the recording machine has not broken down again. This record will show just how clearly the Government are committed to every single line of the Bill. It is not only cast in stone; it will be a millstone around their necks unless they go away and reconsider the matter. It will be a gravestone to industrial relations in some areas because workers will know that the Government could not give them a small benefit and, as a result, they are marginalised and out on the street.

I can do nothing except beg leave to withdraw the amendment. However, I hope that the Government will consider the matter on Report, and I hope that at that stage we shall be able to present them with a more acceptable amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

Before calling Amendment No. 131, and before reverting to the statement that I made at the resumption of this session of the Grand Committee with reference to the breakdown of the recording, I have received a request from the noble Baroness, Lady Miller of Hendon. The recording equipment was also not working when she made her request, as I understand it, at the beginning of this afternoon. On consideration and after consultation, it would seem fair and reasonable—I hope that the Committee will agree—that the noble Baroness, Lady Miller of Hendon, should be allowed to repeat the request that she made but restrict herself only to repeating that request without discussion thereon.

Baroness Miller of Hendon

I am grateful to the Deputy Chairman for allowing me to speak. I am afraid that I do not remember what I said. I do not make speeches and remember them. Therefore, if my speech was not recorded, it was not recorded. I simply want to take the opportunity to say, once again, a few words on that issue.

I feel quite upset. Noble Lords opposite will know that many of us did not want to be in Grand Committee but wanted to be in the Chamber downstairs. Had we been, there would have been no question that we would have had an opportunity of listening to the Statement and participating in the debate on it if we wished. As it was, we were made to come here. I understand perfectly well that this Grand Committee will always adjourn when there is a vote—we recently did so. I am sorry that I was not back in time to hear what the Deputy Chairman of Committees said. I also understood that if there was anything of a serious nature, that would be taken into account. I believe that a Statement of this kind, with so many having voted on Tuesday, is a serious matter.

I want to make another point. My noble friend commented on the point made by the noble Lord, Lord Sainsbury, who said that there is no such precedent. When the Minister—and indeed the noble Lord, Lord Razzall—had to participate in a Statement, we adjourned without any problems for a while in order for them to do that.

I turn to the comments yesterday of the noble Lord, Lord Wedderburn, about the fact that we do not have a shorthand writer here. We pointed out the difficulties of that. We are in a difficult position. I shall sit down soon—I understand the wish of the Deputy Chairman of Committees not to have any further discussion— but Members opposite will know what they said. I think that they were concerned not to waste time because so many of them had taken a lot of trouble with this Bill. I would not like anyone to think that we criticise anyone for the time taken. However long anything has taken, that is how long it has taken, and we have sat here. Fine; that is what democracy is. I say to them, "You are entitled to do work and go through your amendments in whatever way you wish". We appreciate that. The time spent attending the Statement would not have been time lost to the Committee because we still would have gone through everything.

I just want to place on the record the fact that I am very upset that my wish was not granted.

Lord McIntosh of Haringey

I appreciate that the Deputy Chairman of Committees wanted no discussion of the matter. However, it is necessary for me to say a word on behalf of the Government Whips, if not the usual channels. Clearly, the issue raised by the noble Baroness, Lady Miller, about adjourning the Committee, will have to be resolved. I undertake to ensure that the usual channels will take note of what she has just said.

Secondly, on the question of the breakdown of recording: that is extremely serious and we shall have to look into the question of back-up recording facilities. That will have to be done urgently.

The Deputy Chairman of Committees

The statements of the noble Baroness, Lady Miller, and the noble Lord, Lord McIntosh, are on the record. I call Amendment No. 131.

5.30 p.m.

Lord Wedderburn of Charlton

moved Amendment No. 131: After Clause 30, insert the following new clause— "NON-BREACH OF CONTRACT In the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), after section 238A there is inserted— "238B NON-BREACH OF CONTRACT A stoppage of work by an employee in the course of industrial action which is protected action within the meaning of section 238A(1) of the Trade Union and Labour Relations (Consolidation)) Act 1992, shall not constitute a breach of his contract of employment." The noble Lord said: This amendment is grouped with Amendments Nos. 262A and 264, in the name of my noble friend Lord Lea of Crondall. All three amendments are about the problem of the dismissal of those who take part in strike action. My noble friend, I think, agrees that it would be quicker for the Committee to understand the meaning and thrust of the amendments if Amendment No. 262A were moved first, with the leave of the Deputy Chairman of Committees. I would then move Amendment No. 131. which will make it absolutely clear how and why we are doing this. With the leave of the Deputy Chairman of Committees, I ask that that amendment, which is grouped with Amendment No. 131, be moved first. I will then move—or, at least, speak to—Amendment No. 131 and explain how it is different.

The Deputy Chairman of Committees

It is not possible to move Amendment No. 262A—I assume that is the amendment to which the noble Lord, Lord Wedderburn, is referring—before Amendment No. 131. The procedure is that Amendment No. 131 must either now be moved or withdrawn.

Lord Wedderburn of Charlton

Very well. I apologise for trying to improve our procedures.

Both of these amendments—all three amendments in the group—concern a problem which, some people suggest, is a problem of the past and not of the present. However, events of the past two years—indeed, in view of the situation in Wales, events of the past two weeks—have shown that this is a matter with which there is considerable concern. It involves workers being dismissed from their jobs by reason of taking part in industrial action, even where that industrial action is protected on the part of the liability of the trade union by reason of there having been a ballot, proper notice and other procedures under the Trade Union and Labour Relations (Consolidation) Act 1992. It is important, especially because we are coming at the matter this way round, that I speak to the amendment carefully and make it clear why I have put it on the Marshalled List and why it comes about now in addition to the amendments of my noble friend Lord Lea. I have found by experience over many decades that making the sort of proposal that is in both amendments leads to misunderstanding—it frequently leads to misrepresentation—particularly because of the insular debate that takes place in the United Kingdom, although the matter would not raise an eyebrow across the Channel in most jurisdictions—indeed, in all jurisdictions—of Western Europe. Let me explain.

When a worker takes part in collective industrial action, in the eye of a large number of international standards, which I shall cite in a moment, and of every civilised national jurisdiction of law except the United Kingdom, the person does not break his contract of employment. The reason for that is that a right to take part in collective action is regarded internationally and in most national systems as a basic human right. That is a human right that is effective collectively but which inheres in the individual worker. It is a human right that has been recognised at the international level but never in the United Kingdom. The reason it is not recognised in the United Kingdom is that since 1906 our law has proceeded upon the basis that it is adequate to promote the protection of those who organise strike action or those who induce strike action—that provision was inserted into the Act of 1906 by that great Liberal statesman Sir Charles Dilke.

The difference, of course, between protecting the inducement or organisation for strike action and the action itself in the worker is that, if the trade union or the organisers are protected in a trade dispute as in the United Kingdom, the worker is not; it remains a breach of his contract of employment. In a trade dispute in an action in tort, if all the conditions are satisfied—they are many and complicated today—if there has been a ballot, if there has been adequate notice and if the action is in furtherance of a trade dispute, the union or its officials who organise the action may be protected, but the worker remains in breach of contract. Such a consequence seems obvious to the English mind. It is not obvious to the French mind, the German mind, the Italian mind or, indeed, any other legal mind in Western Europe. What happens in those systems?

Where workers collectively take part in industrial action as defined by the national system—definitions do change—"What is a strike?" is a favourite area for writing in the vast literature on this subject, which I am sure is all known to the Government. What a strike is is a difficult issue about which lawyers argue—usually passing like ships in the night—since what appears to the Italian mind to be a strike may not appear so to the French mind. The British mind tends to pass both of them because they include almost all industrial action within the compass of these rules.

The other systems suspend the contract of employment in relation to strike action. The French principle, introduced into the Code du Travail, is that, a strike does not break the contract of employment unless the employee is guilty of serious misconduct". Perhaps my noble and learned friend will be pleased to see the word "misconduct" in a legal provision. Of course, here it is interpreted to mean, in Article 521. action which is not within the normal course of industrial action. A striker cannot break up the works and then say, "Oh well, it's not a breach of my contract of employment or other fault because I did it in a strike". However, in itself, the strike does not break the contract of employment; the contract of employment is suspended.

It will be an objection to the amendment that we do not say what is to happen, having said that it should not be a breach of contract. It will of course be necessary, if the spirit of the amendment is accepted, to say what happened with regard to the contract of employment in a protected strike. The amendment—I break off to remind the Committee—speaks of a stoppage of work in the course of industrial action which is protected within Section 238A of the 1992 Act. It would be necessary to introduce a provision whereby the contract of employment was suspended. And it would be necessary to provide, as other systems do, that during a strike wages should not be payable and that the employee should not be obliged to carry out the terms of the contract, and so on. Of course, further provisions will be needed.

However, I am emboldened to introduce this issue as a probing matter of principle because in another place on 12th February the Minister, Mr Johnson, said, first. that a review would take place of this whole matter. Then he said: The review will include an examination of the law on the dismissal of strikers. We are committed to introducing any resulting legislation within the lifetime of this Parliament".—[Official Report, Commons, 12/2/02; col. 155.] Therefore, it is on the agenda. It is true that it will come in in a review, but it is time that the debate began. As my noble friend Lord Lea will also explain in a slightly different amendment, the Bill raises the issue fairly and squarely before Parliament, and it is time that Parliament began to debate it.

It is time that Parliament began to debate the matter, in particular, because the principle that the right to strike is a right and should not amount to a breach of the individual worker's contract of employment is recognised in a variety of international standards. It is recognised in the United Nations International Covenant on Economic, Social and Cultural Rights; it is recognised in the Council of Europe's Social Charter; and it is recognised in the International Labour Organisation Convention on Freedom of Association 1948, Convention No. 87.

The bodies in the ILO, such as the Committee on Freedom of Association, the Committee of Experts and the governing body, have always held, since decades past, that one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests as guaranteed by the Convention", is the right to strike. All except the United Kingdom have adopted the Social Charter of 1989, which affirms: The right to resort to collective action in the event of a conflict of interest shall include the right to strike". The Charter of Fundamental Rights 2000 of the European Union, Article 28, affirms: Workers and employers, or their respective organisations, have in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action". It is true that that includes the phrase "in accordance with national laws and practices", but a right which is given by the charter in accordance with national laws and practices, is not, most people believe, intended to be abolished by national laws and practices as it is abolished at the moment in the law of the United Kingdom.

The Council of Europe Social Charter has been interpreted, it is true, as not including certain limited forms of industrial action. It means a complete cessation of work, and that is why we have used the phrase "stoppage of work" in the amendment.

It is also true to say—and this is a most serious issue for the Government—that the matter has been considered by the Council of Europe's experts and governing authorities and especially many, many times by the International Labour Organisation's committee of experts and its governing body. The United Kingdom has been condemned by both bodies in respect of its failure to observe the fundamental principle of the right to strike. Indeed, I refer to a recent article in the International Journal of Comparative Labour Law and industrial Relations for 2002, one of many journals in the scholarly literature which have again and again tried to bring this matter to the attention of the authorities.

Professor Tonia Novitz and Dr Paul Germanotta write at page 75 in spring 2002 as follows: UK defiance in the face of international criticism would seem to flow from two complementary and inter-related factors. The first is the limited status of international conventions under UK law: there are no means by which to seek the enforcement of ILO Conventions and the European Social Charter in the national courts. The second is the perception that economic dictates must take precedence over international obligations. This can he attributed to the pressures that UK governments have felt to attract and maintain international investment". They there refer to some of the excuses given by some people for not observing our international obligations.

The French system is clear. The Italian constitution has the strongest right to strike known in western Europe. The German basic law has been interpreted from the beginning as including a right to strike in the proper sense. Furthermore, as my friend, Professor Giugni, has written—and I translate the Latin which he used—a right to strike means that you do not cause legal injury to anyone when you exercise the right. You may do if you go outside it or do something extra, but by exercising a right, you cannot be said to cause legal injury to others for which you can be made liable in the courts.

That scarcely does justice to a voluminous literature, and a vast number of calls upon the Government which have been ignored by both administrations. The worst replies to the ILO and to the European Social Charter were made in the 1980s, which can only be described as quite arrogant refusals to look at our international obligations. In the last decade, there has hardly been a better response from the present Government, I am ashamed to say.

The breach of the contract of employment in Britain, as the Donovan report recognised in one passage, will normally result from industrial action. It is very rare that industrial action does not break the contract of employment. In fact, most people believe that the only occasion in which that can eventuate is where workers take collective action to avoid voluntary overtime, since they are not obliged to work the overtime. Other than that, it is almost impossible to find such a case.

That this has remained for so long is quite astonishing. What I hope to obtain from the Government from this probing amendment is an assurance that they will look carefully at the need to observe our international obligations, of which we have been in breach for so long, and that we will institute if not a right as good as that in the Italian or German constitutions, at any rate something better than total absence of a right for individual workers in the present case. As I said, it is a very practical matter. There have recently been cases where workers have been dismissed and deprived of the rights which the 1999 Act tried to give them with regard to unfair dismissal in Wales by reason of the employer instituting a lock-out.

How did that arise? It arose in respect of the amendment to which my noble friend Lord Lea will speak; namely, that we amended the law of unfair dismissal—of which I have not spoken at all—to say that in the first eight weeks of an industrial action, if it were protected under the rules of our ballots and the like, workers would be protected by reason of the application of the rules concerned with unfair dismissal. My noble friend will forgive me addressing his amendment before he has moved it but I want to explain why we put our amendment down and did not support his.

5.45 p.m.

Lord Lea of Crondall

Carry on.

Lord Wedderburn of Charlton

I know that the TUC has given some support to the form in which he puts it but I do not have to agree with the exact legal formulation of a proposal, even though the spirit of the two amendments is common.

The problem with my noble friend's amendment, which does away with the eight weeks and protects strikers in regard to unfair dismissal without limit of time, is not only the difficulties that that may give rise to in itself but the fact that it will leave those strikers in breach of contract of employment. By not grasping that central nettle, the protection in regard to unfair dismissal will leave them in a highly ambiguous situation.

I understand the argument that employers have put forward that such an amendment would protect workers who go on strike—protected strike and lawful strike as far as the union is concerned. Those who join in that will be protected against unfair dismissal but they will still be in breach of contract of employment. It is, as it were, to close that logical gap that the principle, which is inherent in our Amendment No. 131, says that the breach of contract should be cured. If that could be done, there would be no objection to the amendment of my noble friend Lord Lea. I would join with him in his Amendment No. 262A once that logical gap was closed. It is with that quite inadequate presentation to the Committee of what is involved in this very important. central issue of labour law and labour relations that I beg leave to move.

Lord Lea of Crondall

I rise to speak to Amendment No. 262A in echoing my noble friend Lord Wedderburn. There are unique features of the history of the right to strike in Britain. Indeed, we do not find there is a right to strike. We find that there is protection in the 1906 Act, as he has said, against inducement to breach of contract of employment in consultation or in furtherance of a trade dispute and so forth. That is the line that we have all been brought up to understand. But, of course, it runs into all the difficulties to which my noble friend has referred when it comes to unfair dismissal.

One of the things that can be said and no doubt will be said is, "Well, this sort of thing may be true in theory but it does not really happen in practice, does it?". Perhaps I may remind the Committee about the specific case to which my noble friend has referred.

Friction Dynamics is a company in the Caernarfon area. There has been a year long dispute which involves the whole community in that area. Indeed, April is the first anniversary of this dispute. It has not received a great deal of press attention but it certainly is exercising people in that area very considerably. It exemplifies the inadequacies of our employment law. We were pleased to hear Alan Johnson say in the other place that this matter will he reviewed and that action following that review will be taken in the life of this Parliament.

Let me say what happened in this dispute. It involves 87 workers who were sacked by their employer after taking part in a lawful strike. By the way, it is worth reminding ourselves that we now have a very restricted right to strike in a number of other respects in addition to what has been mentioned. I refer to the ballot etc. However, this is a lawful dispute and they were on strike. The industrial action was called by the Transport and General Workers Union, in which I declare an interest as a member of that union, following the serious deterioration in working conditions at the plant, including the proposed removal of statutory health and safety rights, reductions in holiday allowances and changes in shift patterns.

Following the strike, the workers returned to find that they had been locked out of the factory, placed on an enforced holiday and 50 temporary staff had been recruited to fill their places. After eight weeks of stalemate the workers were given an ultimatum to return to work or face dismissal. They were sacked. Members of the Committee will agree that this raises the question in a rather acute form and the example proves it is not theoretical. If it is unfair to dismiss an employee for taking part in a lawful strike during the first eight weeks of a dispute, why is it not equally unfair for the remainder of the strike? The fact is—and we know the history—that eight weeks is an arbitrary figure. It has nothing, on any obvious reasoning, to do with fairness or to do with equity or common sense.

One is conscious it can be argued that this whole matter is not really the territory of the Bill. I have to say I was sympathetic to that argument and, until recently, I was very sympathetic to it. However, the more we have gone into the whole question of unfair dismissal in the previous two or three Sittings, the more it has led me to think we should table this measure even though it entails, as I am advised by the Public Bill Office of the House of Lords—although, oddly enough, that did not seem to be the view of the Public Bill Office in the House of Commons—a change in the Long Title, hence Amendment No. 264. I am certainly on a learning curve on esoteric matters such as that. However, it is important to emphasise that the right to strike in this country is an indirect right to strike. In no other European country is there such a restriction on the length of a strike as we have in this eight week rule. I am not even sure that we can find it in any other part of the world, but I have not done my research sufficiently to do a total dragnet.

The amendment is a probing amendment and the Government have indicated that a great debate has to take place on the matter. I trust that it will not simply be a case of splitting the difference between eight weeks, 10 weeks and 12 weeks. The time has come when we could take a more logical view of where the right to strike fits into our legal structure than has previously been the case. It is in that spirit that I speak to the amendment.

Lord Falconer of Thoroton

These three amendments draw us into a debate about the effectiveness of the protections against dismissal for taking certain types of industrial action, which were introduced in the Employment Relations Act 1999.

As my noble friends Lord Wedderburn of Charlton and Lord Lea of Crondall have said, the issue has come to prominence again because of the dismissal of a group of employees at Friction Dynamics last year. I refer to proceedings that raise the legal issues arising out of that dispute.

This matter was debated at length during the Report stage in the other place. Important undertakings were made in that debate. They are worth mentioning again. The Government believe that the Bill is not the right place to change the law on the dismissal of people taking industrial action. This law has been in place for a relatively short time—in fact since April 2000. The Government fully understand the difficulties experienced by the sacked workers at Friction Dynamics. However, it would be wrong in our view to change the law on the basis of one, unresolved case.

That said, the Government are committed to undertake a review of the Employment Relations Act. We will I begin the review in May or June this year. The Government will include within the review an examination of the Act's provisions on the dismissal of strikers. We will consult in full on the issues, in the course of that consultation dealing with the point made by my noble friend Lord Wedderburn of Charlton, who will be free to raise the issues of convention obligations. This should give us a far better basis on which to assess the law's effects.

This is an important undertaking given by my honourable friend Mr Alan Johnson in another place. Should the review contain recommendations to change the law in this or other areas, the Government have committed themselves to come forward with the necessary legislation in the life of this Parliament. In that context, these amendments are premature.

Amendment No. 131 would in effect make it unfair to dismiss any person taking protected industrial action because it would remove the main grounds for dismissal; namely, that the striker has broken his contract of employment.

This is a very radical step. It would in principle overturn long established law on the effect of industrial action on contracts of employment that my noble friend Lord Wedderburn of Charlton set out in full for us. It would make it considerably more difficult for employers to protect what they would regard as their legitimate business interests during prolonged periods of industrial action. It is therefore not an approach that readily commends itself to the Government, but again I refer to the review.

Amendments Nos. 262A and 264 also seek to make it unfair in all cases for the employer to sack those taking protected industrial action. As my noble friend Lord Lea of Crondall said, it achieves this end directly by introducing a new clause into the Bill which would remove parts of Section 238A of the 1992 Act which currently qualify the protection against dismissal in these circumstances. The Government have similar concerns to those referred to in relation to the amendments of my noble friend Lord Wedderburn. We have similar concerns about this amendment; namely, that it is premature and probably goes too far.

The text of 238A was inserted by the Employment Relations Act 1999. It was introduced following prolonged and difficult but productive talks with interested parties. Yes, it is possible to say where something is the result of long, difficult and productive talks, it does not measure up to what either side would regard as equitable and fair, but that is the nature of things that come out of long, productive and difficult talks. It represents a compromise that was acceptable to employers and unions at that time. The amendments would unpick that carefully constructed compromise. If a new settlement on this issue is to be reached, we need to involve all parties in deciding which way we should go. As I have stated, the forthcoming review of the Employment Relations Act is the correct place to engage other parties in this exercise.

In light of my remarks, I invite my noble friend Lord Wedderburn to withdraw his amendment and, when the time comes, the noble Lord, Lord Lea of Crondall, not to move his amendment.

6 p.m.

Lord Wedderburn of Charlton

Of course, I am not surprised that the Government did not fall into raptures and accept even the probing spirit of all these amendments. However, I am a little disappointed by the terms in which the Government have addressed themselves to the problem at this early stage. It may not be the right place, in their view, in the Bill.

The problems, in my submission, are not based on a law that has been the law for a short time. Law on breach of contract, if one can transpose it into earlier language of status and property, has been the law since the Statute of Labours 1351. There has been a long time to think about it and a long time to get employers to see what French, German and Italian employers seem able to see. They did not all see it at one point—they have of course resisted it. In the different histories of the industrial legal systems of these countries, employers resisted the application of international human rights to labour relations, but it is not an issue in those countries now. Why are English employers—British employers—thought to be so deficient in common understanding of international human rights that they could not possibly accept what employers elsewhere accept?

Of course, there is a surrounding panorama of legal provisions which deal—for example, in France—with replacement workers. That is a very relevant point of the dispute—the astonishing and outrageous treatment of workers—to which my noble friend Lord Lea of Crondall referred. There was a case in Wales recently in which replacement workers were used and then the workforce was dismissed after waiting for eight weeks. It is remarkable that British employers still engage in that sort of activity. It happens elsewhere, I have to admit, but when it happens the breach of law is immediately apparent.

Here it seems—although no doubt there will be further consultation on the legal position of this dispute—that it is something that the Government, at the moment at any rate, are happy that they can get away with. The approach in my amendment, said my noble and learned friend—I apprehend I have him right—is not one that readily commends itself to the Government. That will not be good news in Brussels in light of the Charter of Fundamental Rights. It will not be good news in Geneva for the International Labour Organisation, which is fed up with the way in which the United Kingdom Government constantly defy the most basic principles of the Convention on Freedom of Association. It will not be good news to British workers or to British trade unions, which have to cope. They are the people who have to cope with the mess that is caused by this absurd antediluvian, stone-like attitude to international human rights in regard to collective action. I appreciate that there is more protection than there was. In 1999, the Government made a step forward both in regard to recognition and to unfair dismissal. It is a small, teetering little step that does not address the fact that this country is virtually alone in Europe—not, of course, in Latin America—by being in breach of the most fundamental principle of the International Labour Organisation. When the review comes, I hope that it will commend itself to the Government to face that very simple fact and to do something about it. This is an early stage. We have put the matter on the agenda. We give notice to the Government that we expect better of a Labour government than merely to look at such principles and have them not commended to themselves at an early stage. Let them keep an open mind on whether they should observe those standards, which are internationally applicable. At the present stage, there is nothing more to be done. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Non-completion of statutory procedure: adjustment of awards]:

Lord Wedderburn of Charlton

moved Amendment No. 132: Page 36, line 17, at end insert— ( ) The non-completion of a statutory procedure shall not be attributable to a failure by the employee by reason only that he fails to take a step at a time after the date of termination of his contract of employment, unless it appears to an employment tribunal just and equitable to determine otherwise. The noble Lord said: We now come to Clause 31, which raises the question of the non-completion of statutory procedures with the sanction of the adjustment of awards of compensation if an employee does not complete the steps that he is obliged to take. This is a simple little amendment that addresses problems that occur in real life. The employee may not have sent a letter because he was ill. Yet he may have been treated outrageously and deserve a case and a remedy in the tribunal. His family may have been ill. His wife may have left him. His wife may have come back and caused equal problems! All sorts of difficulties may arise in life and the worker may find himself in a situation in which it is just and equitable to say that he can be forgiven for not taking the bureaucratic step that is required of him before he has access to the portals of judgment in an employment tribunal and before his award is then to be cut down under Clause 31.

The amendment simply states, if it appears to an employment tribunal just and equitable, a failure to take the step that is necessary after the date of termination of his contract of employment is not to be regarded as attributable to a failure on his part. He may have lost his job, his contract of employment may be terminated, he may be in family difficulties or suffering other problems of a real kind that are personal. Although he has a remedy, he can suffer massive cuts in the compensation that is his due. This is a simple little amendment to give the tribunal a discretion. Tribunals are very good at exercising discretion. Employers do not, I think, complain—this is rather important in terms of the opposition to some of our amendments. Employers complain that too many cases get to tribunals. We have already suggested that the statistics on that do not bear out any rational case. But as I understand it, employers have not complained overall about the exercise of discretion by tribunals—at any rate, not in the more sensible literature of which I am aware. Giving the tribunal a little more discretion would not do a great deal of harm here.

If my noble and learned friend says we have got the words wrong in the amendment, or it does not quite apply in the right area, then no doubt he will take it away and look at it. We desperately await the words, "We'll take this away and look at it". We do not hear them very often. I hope we will not get a stony refusal to the spirit of this amendment. I beg to move.

Baroness Miller of Hendon

With some diffidence, I rise to support the noble Lord in his amendment. I rise with some diffidence because I have noticed that when I support amendments from the Opposition side, they do not get very far. On the other hand, when I oppose the amendments that come from that side, it seems that the Government then agree with them. I therefore feel somewhat diffident in supporting the noble Lord's amendment, but I very much do so.

Lord McCarthy

I merely want to say that this is the beginning of a whole series of attempts to mitigate the consequences, as we see it, of the non-completion of the statutory procedure. The Government may well decide that they do not like this attempt, but there are many more. This is one of a series of amendments which are all designed in some way or another to mitigate the full consequences for workers of the non-completion of the statutory procedures, some affecting dispute procedures and some affecting grievances.

It may well be that the Government want to say, for the usual set reasons, that they cannot accept this amendment. However, I hope they will not take an equally obscurantist, tough and, as my noble friend says, stone-like defence to all the attempts. There is, after all, a statement or two from the Minister in another place, in which he says he will tell us about all kinds of cases where people will not be involved and where they will not have to complete the procedure or, if they do not proceed to apply part of the procedure, they may find their way to the tribunal. There is therefore some escape and one of the ways of escape is to accept this amendment. I hope the Government will give us the right answer.

Lord Falconer of Thoroton

Clause 31 is designed to encourage the parties to an employment-related dispute to use the statutory procedures set out in Schedule 2. It does so, as my noble friend has indicated, by providing for any award made to be adjusted where an employer or employee does not use them.

This is not about deterring claims from going to tribunals but merely about ensuring that parties use in-house procedures first, so making complaint to a tribunal unnecessary where the dispute is resolved satisfactorily. Surely, that must be sensible for all concerned—after all, few people relish appearing at a tribunal.

There will inevitably have to be some exceptions to the proposition that statutory procedures will have to be used and completed. Members of the Committee will be aware that those who have suffered harassment at the hands of the line manager who will be dealing with a grievance will understandably not be keen to take that grievance forward. Or if they raise a grievance about something and are harassed while attempting to use the procedure, it would be unreasonable to expect them to continue to use it. Regulations which will be made will cover this and other instances.

However, with these limited exceptions, employees and former employees will be expected to have used the statutory procedures or else be subject to the adjustment provisions. Therefore, someone who has been dismissed will normally be expected to have complied with and completed the appropriate procedure, as instigated by his employer, whether full or modified, which applies in his particular case. Regulations made under Clause 31(5) will specify the circumstances in which the procedures contained in Schedule 2 will apply. For example, it was said in the other place that we envisage that the modified procedure will apply to former employees. Where the employer does not instigate the procedure or does not follow it, the employee will normally have his award adjusted upwards.

Because we wish to encourage as wide a use of the procedures as possible, I cannot accept this amendment, which seeks to exclude former employees from having to comply further with the procedures, except where the tribunal determines otherwise.

6.15 p.m.

Lord McCarthy

Have I got the Minister right? He has said something very similar to something which the Minister in another place said. He said that they were going to exclude certain categories. One of the categories was an allegation of harassment. I have no desire to say anything which would lead the Government to take an allegation of harassment out and say that it must be completed. However, there is a kind of inconsistency. The regulations do not appear on the face of the Bill, but anything based on them are general exclusions. But they are allegations; we do not know whether they are factual or not. Anybody can allege anything.

I could allege harassment and one might examine it and discover that I was not harassed at all and that I did all the harassing. It is an allegation. The Government are prepared to exclude allegations, but we are not talking about an allegation. We are saying in the amendment that there has been evidence. The tribunal comes to the view that in fact there is some case for considering the point. Why can the Government not accept it?

Lord Falconer of Thoroton

I have just been saying that that is the same question again.

Lord Wedderburn of Charlton

My noble and learned friend Lord Falconer of Thoroton feels he has answered that. Very well.

There are two real problems about my noble and learned friend's reply. The Secretary of State is going to make regulations that will tell us all about this. All the problems we have raised are going to be dealt with in regulations. Our first objection to that is that we should have some indication on the face of the Bill in order to be able to discuss Clause 31. Clause 31 says that the employee's award will be reduced in certain circumstances.

Let me be more clear. Where a statutory procedure is not completed before proceedings have begun, Clause 31 (2)(c) provides: the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee—

  1. (i)to comply with a requirement of the procedure, or
  2. (ii) to exercise a right of appeal under it
it [the tribunal] must, subject to subsection (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount…up to 50 per cent". It has a discretion, but only a discretion one way; it can make it worse and worse and worse for the employee who has not exercised all his rights of appeal or completed all the procedures. I will not repeat that we regard those as unfair; I take it to be an assumption in anybody's mind that our case is that these are unfair procedures in a variety of ways. They are also rather uncertain. Let us put that aside for the moment and carry that assumption. Furthermore, if the employee does not exercise all his rights of appeal, the employment tribunal has the discretion.

All this amendment asks for is that the employment tribunal should have another discretion in its favour. The words in the Bill are "just and equitable". This is a very modest amendment and applies only when the employee's contract of employment has been terminated. The poor man and woman are out there without work. They are unable to complete the first requirement of the procedure or perhaps to exercise their right of appeal, and the tribunal says, "Well, there were special circumstances here; it was just and equitable in our view that they should be relieved of that, and the words "wholly" or "mainly" attributable to the failure of that employee should be understood to include the discretion in such hard circumstances that they are not to be penalised".

I cannot for the life of me see what is unreasonable about that, and yet we are not even to have the matter reconsidered. There is no expression of sentiment for the worker in such a circumstance. It is as though I was debating this with Mr Balfour, not my Labour Government. I do not think that we would have received such a hard response to all these amendments in 1901. It really will not do to tell us that there is nothing in this point. I appreciate that my noble and learned friend hinted that he considered the amendment to be rather too narrowly drawn since it applies to cases after the date of termination of contract. We could look at that issue again. We could look at the whole wording again, but surely the spirit of it is reasonable. I am left with no alternative but to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133 had been withdrawn from the Marshalled List.]

Lord Wedderburn of Charlton

moved Amendment No. 134: Page 37, line 3, leave out sub-paragraph (i). The noble Lord said: This is a very simple amendment and it will become more clear when we reach Schedules 3 and 4. As the Bill stands under Clause 31, the list of jurisdictions—that is, the list of the type of case to which this penalty provision applies—is set out in Schedule 3. When we come to deal with Schedule 3, we shall want to test each and every case in that schedule against, first, justice, secondly, common sense and, thirdly, our European obligations. I can speak to that only when we come to Schedules 3 and 4, which are now grouped together.

This provision tells us that the Secretary of State can add any other jurisdiction to the list in the schedule. That is why it is a little difficult to debate this matter before we reach Schedules 3 and 4. However, in our view, Schedule 3 is sufficient. If the Government believe that they will introduce some other employment protection right to which their Schedule 2 procedures will apply, they had better tell us what they think that might be. That is not an unreasonable request. There are things on the horizon. If they introduce employment rights in respect of age discrimination, will they apply the procedures to that? If they introduce other European directives which are on the horizon and implement them, will this provision apply to those so that the Government can add all future employment rights jurisdictions to the list of penalties? No doubt they will add the provision to Schedule 4 as well in respect of prevention of access to justice in the employment tribunals.

Therefore, the amendment seeks to ensure that the Secretary of State does not have the power, by regulation, to add a jurisdiction to the list in the schedule. When some new employment right is created, at whatever level, the Secretary of State should come to Parliament and propose, subject to amendment, in full debate that he wishes to increase his vast powers in this respect.

This provision represents another example of the power by regulation or order to add, in Clause 31, to the disadvantages to workers. It may be said that it is possible that disadvantages will also arise for employers under Clause 31. Theoretically at least. that is true, and I would not favour the Secretary of State having power to add a jurisdiction to the list to disadvantage employers further either. That matter should be fully argued. At this stage of the introduction of the new procedures and all the uncertainties that go with them. I cannot see that new jurisdictions—new employment rights—should be added to a list by a regulation which, as a matter of reality, will not be discussed properly and, more importantly, will not be open to amendment. I beg to move.

Lord Rotherwick

As we have already heard, the amendment seeks to prevent the Secretary of State adding of her tribunals to the jurisdiction of the Act. As Members of the Committee know, we are opposed to the extent to which the Government constantly add to the amount of secondary legislation, as distinct from primary legislation. No doubt the Minister will justify the use of secondary legislation in adding to the already formidable list of tribunals in Section 3 by saying that it will assist if new tribunals are set up in the future by new legislation. However, it only requires a stroke of the draftsman's pen to say in the new Act that Clause 31 and Schedule 3 of the Employment Act 2002 will apply to this new Act. Therefore, on the principle that we wish to encourage more primary legislation and less secondary legislation, I must apologise at this stage to the noble Lord, Lord Wedderburn. As my noble friend Lady Miller of Hendon said, every time we support an amendment, the Government do not give way but when we disagree with one, they go away and think about it. Therefore, I apologise to the noble Lord, Lord Wedderburn: we are going to support this one.

Lord Falconer of Thoroton

As ever, the fatal hand of the Tories shrivels the amendment. The amendment seeks to remove the power to add jurisdictions. As it stands, as the noble Lord, Lord Wedderburn, has said, Schedule 3 contains the main jurisdictions under which tribunal claims arise. We would want to assess how this clause works in relation to those jurisdictions before deciding whether to add or remove jurisdictions. If difficulties arise with particular jurisdictions, we may wish to remove them. If a new jurisdiction—this involves the case referred to by the noble Lord, Lord Wedderburn—is given to tribunals, we may wish to consider adding it to Schedule 3.

I see no sense in removing the power to add jurisdictions, which may be eminently suitable for inclusion in Schedule 3, as the amendment seeks to do. That is why the power is there. What did the Delegated Powers Committee think of it? It thought that it was sensible and proportionate. Accordingly, I cannot accept the amendment and I invite the noble Lord to withdraw it.

Lord Wedderburn of Charlton

I am grateful to my noble and learned friend for explaining the Government's position but we have not sought to get rid of the Secretary of State's power to remove jurisdictions from the list. What we have objected to is the power by regulation or order to add jurisdictions to the list.

If I caught my noble and learned friend's words correctly, he said at some stage—I think that I am quoting—"We may wish to consider adding a jurisdiction". I have no objection to their wishing to consider it; what I object to is their being able to do so by regulation. They can consider what they like but I object to them having the power to do that by regulation. They should argue their case properly and bring it to the Floor of the House and let it be amended.

As a matter of fact, the amendment point is particularly strong in this regard because we shall have exceptions under any of these jurisdictions. Harassment cases will be excluded perhaps not from all jurisdictions, perhaps in regard to sex discrimination cases, race discrimination and possibly unfair dismissal. We do not know; we have not seen the regulations, although now we have been assured in earlier sittings that we will all get 30 days' notice of them. We look forward to that. There are problems about certain jurisdictions under the Tax Credits Act. If a new Act is produced and jurisdiction is to be added to the list, it may be that there will be exceptions to cases under the new Act which are not to come within the purview of Clause 31 or, indeed, by parallel, the purview of Clause 33 and Schedule 4, which is a parallel case. So the case for regulation here is peculiarly weak. The case for saying, "We may wish to consider adding it", is peculiarly Tudor and peculiarly Henry VIII. It involves saying, "When I want to add, I shall add and you can't amend it. You can't move an amendment to my adding a jurisdiction to say that women workers who are harassed or other workers who are treated in a particular way do not fall within these penalties or this prohibition of access to justice".

This is a serious point; it is a matter not just of machinery but of how governments ought to behave. Labour governments in the past have not always demanded vast powers of regulation in Bills that go way beyond what they say at the time that they are going to use. My noble and learned friend will not even take this amendment away; he just rejects it again. Our amendments are just rejected; they are not even to be considered further. We shall consider the matter further before Report and see whether t would be right to put to the House the issue of deciding whether it should have the competence to consider and amend the detail of a new jurisdiction—a new set of penalties—which will he put upon working people in regard to Clause 33. At the moment, there is nothing more I can do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

6.30 p.m.

Schedule 3 [Tribunal jurisdictions to it hick section 31 applies]:

Lord Wedderburn of Charlton

moved Amendment No. 135: Page 66, leave out lines 22 to 26. The noble Lord said: This is a somewhat complicated group of amendments. Amendments Nos. 135 to 141 are grouped—they concern Schedule 3. But Amendments Nos. 171 to 178 are grouped with them, and they concern Schedule 4. Unless I am mistaken, the same considerations arise in respect of both schedules, although they apply to slightly different parts of the Bill.

Schedule 3 applies by defining the jurisdictions, as we have just appreciated, to which Clause 31 is applicable; that is, cases in which compensation awards can be reduced—or, indeed, in some cases, increased—where there has been non-completion of statutory procedures. I interpose the remark—almost a footnote, but it is important in relation to what has already passed—that in the case of the employee, it is said that he must exercise all his rights of appeal. The burden on the employer in Clause 31 is much smaller and his non-completion may be much smaller.

On the other hand, Schedule 4 is of course the definition schedule for the scope of Clause 33. Clause 33 says that an employee shall not be allowed to present a complaint to an employment tribunal under a jurisdiction to which that section applies if he has not completed a requirement in the relevant statutory procedures. Schedule 4 defines the scope of the range of Clause 33.

These are very serious and central parts of the mechanisms of the Bill. To what may these penalties and prohibitions on access to justice apply? I preface my remarks by pointing out that if I had to choose, I should say that Schedule 4 was more important than Schedule 3 because Schedule 4 can give rise to a prohibition on access to justice. Schedule 3 is bad enough but at least it can only give rise to reductions or increases of penalties.

To what is this set of penalties and prohibitions to apply? I invite Members of the Committee to look at the list—it may be easier to look at page 66 of the Bill than at the amendments because the amendments have to refer to a page and line number in every case. We can see the list more easily on page 66. This is the range of employment protection rights—a list of modern protection rights—across the board. First, it refers to cases on equal pay. You can lose the right to go to the tribunal if you do not do what is required under that provision. I add that this is a place where the right of the employee—the equality clause—is introduced by the 1970 Act into the contract of employment. It is interesting that the Government have used the same formula in this case.

That is the first matter—equal pay cases. Secondly, I refer to the Sex Discrimination Act 1975 and to cases where, under Section 63. a complainant who alleges sex discrimination can go to the tribunal. A penalty could apply or they can be stopped under Schedule 4 and Clause 33. Yet we are now told that exceptions are going to be introduced. Therefore, anyone who looked at the Bill would be misled unless they looked also at the regulations that are coming on the exceptions. In a future amendment we shall be arguing—my noble friend will move the amendment. I think—that some indication should be given on the face of the Bill of the areas in which this schedule and Schedule 4 will not apply. The Government cannot just leave the matter to regulations. They must tell people that there will be areas where, as the Minister said in another place, the provision will not apply even if they want to put the precise detail into regulations. I refer to Section 54 of the Race Relations Act 1976 and discrimination on the grounds of race.

I now turn to something different—Section 146 of the 1992 Act. This is not simply a matter of a right to bring an action in a tribunal and to get compensation by reason of a breach of the section. That is another section which gives a person a right to be a member of a trades union and a right to carry on trades union activities. This section deals with so-called detriment. Detriment, as I have said in a previous debate, is a polite name for victimisation. This is a case where a worker complains that he has been wrongly treated and deterred, from being or seeking to become a member of an independent trade union", or deterred, from taking part in the activities of an independent trade union by reason that he suffered victimisation, or, in the words of the statute, by reason of the imposition of a detriment". This is someone who has been victimised, yet he has to send a little letter, or a copy of it. saying, "Please, Mr Employer, don't victimise me any more. I want to go to the employment tribunal". And his compensation will be reduced if he does not exercise all rights of appeal, it seems. There is a whole list of jurisdictions here in the two schedules which deal not just with a substantive right to go to the tribunal in terms of the right itself, but the right to go to the tribunal to complain that detriment, or victimisation, has been applied to the employee in respect of the sections involved.

I now turn to Section 8 of the Disability Discrimination Act 1995. A disabled worker who has been discriminated against has to complete his procedures. He has to send a little letter and say, "Oh dear, I've got a grievance," or, more importantly, "Oh dear, Mr Employer, you have discriminated against me in the employment field", otherwise he cannot go near a tribunal. It is an extraordinary list.

Section 23 of the Employment Rights Act 1996 is a little different. This concerns cases where the employer has not paid the proper wages and has made an unauthorised deduction, as the statute makes clear. We have moved an amendment to suggest that while on the Government's own logic they will make the employee engage in completion of necessary procedures for one deduction, where the case falls under subsection (3) of the section—which is the case where there have been several, or a series, as the section puts it, of deductions from wages—the worker should be allowed to go straight to the tribunal and should not be subject to penalty. That is a rather different amendment but we have considered each of these separately. On the Government's own logic, they may be able to say that Section 23 cases should come within the purview of their rules but, where there has been a series of wage deductions, it is surely not reasonable to make their rules apply in quite the same way.

Section 48 is a most astonishing inclusion. I have to deal carefully with Section 48 because we have moved an amendment that goes to its heart. Section 48 gives the employee the right to complain to an employment tribunal on the grounds that he suffered a detrimentvictimisation—in contravention of Sections 44, 45, 46, 47, 47A or 47C of the Employment Rights Act 1996. The list, in fact, under Section 48, is very long indeed, and these are victimisation cases. What are all those sections about?

The fourth one is about health and safety. I am sorry if the noble Baroness opposite does not think I should explain this, but the Bill has all this detail buried away within it and it is necessary to bring it out and put it on the record. Section 44 concerns the case where an employee has been subjected to a detriment—he has been victimized—when he is a representative or other worker concerned with activities in connection with preventing or reducing risks to health and safety at work—a most important function. He comes along and says, "I've been victimised because I tried to enforce my right to see that the health and safety provisions were put into effect". He is made subject to the procedure and he is made subject to the possibility of penalty.

Section 45, which we deliberately did not cover in our amendment, is about betting workers and Sunday workers in shops. We thought that in that case there might be a possible reasonableness as regards making them take these steps. But Section 45A introduces even greater difficulties. It is concerned with the following. I quote from Section 45A of the Employment Rights Act 1996: (1) A worker has the right not to he subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker— (a) refused…to comply with a requirement which the employer imposed…in contravention of the Working Time Regulations 1998". A number of problems arise here. First, this is a victimisation case. I hope the noble and learned Lord will reply to the point as to why on earth special provisions should be put in, penalising and blocking the rights, subject to their unfair procedures, of workers who have been subjected to detriment. It is as though someone has just gone through all the statutes, looked through all the cases where you could get to a tribunal and said, "Let's knock that one out as well". It is extraordinary and, in this case as in other cases, doubly extraordinary.

I join my comments on that problem with the last one in the list on page 67 of Schedule 3 and page 68 of Schedule 4; that is, Regulation 32 of the Transnational Information and Consultation of Employees Regulations 1999. Again, this is a case of detriment where the worker has been victimised for pursuing rights under the European Works Councils Directive, which we have put into these regulations. Where the rights in these schedules rest upon European directives, it is more than doubtful whether the Government can be justified in subjecting them to special penalties and special prohibitions. Every directive requires that the nation state which is a member of the Union should implement the directives in its national system and provide appropriate and effective remedies for their breach—even more, one would be quite clear, effective and appropriate remedies for detriment suffered by the worker in his attempt to enforce the European standard.

I am more concerned with what the standard is than whether it is European, but there is legally a special feature in regard to European-based standards. The directive requires that they should be enforceable by effective and appropriate procedures and remedies. It is not simply my doubt but the doubt of a number of people whether something like the trans-national information consultation provisions, as they rest on that basis, could possibly lawfully, in European eyes, be subjected to these special provisions where the worker has been victimised for trying to enforce his rights that derive from a European level.

Going back to the foot of page 66, we see that these provisions are to apply to unfair dismissal. Much of what we have said about Schedule 2 in its application to unfair dismissal cases can be referred to in this debate. Simply to apply it to unfair dismissal without amendment of Schedule 2, we have already argued, is unreasonable.

At the top of page 67, using Schedule 3 as our agenda, we see that the next case is a case of redundancy payments. Where the worker does not complete those special procedures, his right under Section 163 to go to the tribunal in respect of any right to a redundancy payment, or a complaint about the amount of a redundancy payment, is to be specially dealt with.

There are many who regard this as the most important of the cases where Clauses 31 and 33 are objectionable. There are complicated arguments about the amounts of redundancy payments, especially under Clause 31, and this is a commonsense problem. Is it really necessary to impose these new hurdles upon a claim to a redundancy payment on the assumption that otherwise the worker's right to that amount is as he claims it to be?

Then we have the National Minimum Wage Act and, in addition, a worker who suffered detriment for daring to claim the wage. As a matter of fact. curiously enough, the national minimum wage is also a case where the right can inhere in the contract of employment. But at this level of Schedules 3 and 4, it is not perhaps centrally as important as it is in the Bill.

Under Section 24, however, A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of Section 23". Section 23 deals with a case where an employer has acted, or deliberately failed to act, on the ground that, any action…taken, or…proposed to be taken, by or on behalf of the worker with a view to enforcing his right to the minimum wage; or where the employer was prosecuted for an offence under the National Minimum Wage Act 1998, led to the worker being victimised in the ways that happen sometimes—not that often, but bad employers do such things. I cannot see what the logic is in subjecting the new penalties and the new prohibitions not just to the right to claim the national minimum wage but to the right to complain about the detriment caused by victimisation. The way the Government have constructed this list is quite extraordinary. Schedules are not debated much in Parliament. More is the pity because one can understand Clauses 31 and 33 only in the light of Schedules 3 and 4.

We then come to the Tax Credits Act 1999. I was astonished to see that mentioned because I must admit that either I did not know or I had forgotten that a worker who is victimised on the ground that he has tried to enforce his benefit or right under the Tax Credits Act also has a right to complain to the employment tribunal. I do not know why that poor worker—literally, in this sense—is subjected to these new rules.

The next entry, and the equivalent in Scotland, is the Employment Tribunal Extension of Jurisdiction Order 1994. This raises an important point because, of course, the special penalties and the special prohibitions of Clauses 31 and 33 can apply to cases in the employment tribunals. Only fairly recently the employment tribunals had a concurrent jurisdiction with the county courts and the High Court in breach of contract cases.

Therefore, the special prohibitions and the special penalties will apply here to employment tribunal cases, but they will not apply to precisely the same cause of action in the county court or the High Court. I mean precisely the same facts and precisely the same complaint: one in the employment tribunal, to which this will apply, and one in the ordinary courts, to which it will not apply. Quite why the Government want to increase the number of cases in the county courts and allow full recompense and compensation there but not allow it in the employment tribunals baffles me.

Finally, I turn to Regulation 30 of the Working Time Regulations 1998. It states.

A worker may present a complaint to an employment tribunal that his employer— (a) has refused to permit him to exercise any right he has under—", and then it sets out a list. There appears a whole series of basic regulations to the working time provisions, and, secondly, where the employer— has failed to pay him the whole or any part of any amount due to him under [the working time] regulations". This is a straight breach of regulations. It is not a detriment case. It is a straightforward right to go to the tribunal and claim that the working time regulations have been broken. Of course, the point also arises here—and I should have mentioned it before—that in so far as this is based upon a directive of which we have managed to contract ourselves out of a great deal—a situation which I hope will rapidly come to an end—it is more than questionable whether it is possible, under the provisions of what the Luxembourg Court will enforce as European law, that these limitations on the rights under Section 30 to enforce the working time regulations will be acceptable.

No doubt the Government will have prepared a case and I expect they will say that it is only objectionable when one destroys the right and not when one limits it. In reality, when one limits the right to the extent that Clause 33 can limit it and prohibits any access to the tribunal, one is coming very close to destroying the right altogether. Also, the imposition of penalties on what one can recover obviously has a deterrent effect and is arguably not an effective and appropriate remedy for the enforcement of these European provisions.

I apologise for going through each and every provision in these schedules, but when one goes through them, one sees what Clause 31 and, more particularly, Clause 33 really amount to. They are an onslaught not merely upon basic employment protection rights, and a question not merely against European standards, which we are obliged to impose and to have effectively remedied, but also in several cases they are penalties and prohibitions against the enforcement by a worker who suffered victimisation for trying to enforce his rights. What is the sense of that? "Oh", the Government may say, "because he must send a letter to the employer". Who is this employer by hypothesis in every case in which the word "detriment" appears? He is by hypothesis an employer who has—in the allegation of the employee—imposed victimisation on the employee that that employee wishes to have remedied and compensated. What on earth are the Government doing giving special barriers to the enforcement of remedies against detriment and victimisation? What justification is there in Clause 31 for saying that a worker who has been victimised must go through all the levels of appeal before he can get full compensation? The more one looks at Schedules 3 and 4, the more doubtful one becomes about aspects of all the items that are inserted within them.

It would not he much of a Bill if we just abolished Schedules 3 and 4 because Clauses 31 and 33 would become otiose. As a matter of fact, it is one reason why we left in betting workers and Sunday shop workers, because we are not destroying the whole of Schedules 3 and 4. It is a little unfair on betting workers and Sunday shop workers but, nevertheless, we have not moved their exclusion.

I look forward to hearing what my noble and learned friend can say against each and every one of those items. I beg to move.

Lord Falconer of Thoroton

That was a very helpful and comprehensive moving of the amendment because a number of clear strands and principles emerged. I hope that I can help the Committee with them. Before I do so, I shall put in context what the Bill does.

Clause 31, as it currently is, states that if you have not gone through the procedures, the tribunal must, subject to subsection (4), reduce any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount. So, with regard to Clause 31, the consequence of being one of the jurisdictions in which the whole procedure has not been completed is that the award must be reduced by 10 per cent and may be reduced, if it is just and equitable, by a further amount. As my noble friend Lord Wedderburn says, even that 10 per cent is subject to another exception in subsection (4). The duty under subsection (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase, or a reduction or increase of such lesser percentage as it considers just and equitable. So there are those provisions in Clause 31.

Clause 33, as my noble friend Lord Wedderburn has very fairly said, requires the employee, before he can make a complaint, to go through step I of the grievance procedure, which is to send a letter raising the grievance. In certain circumstances, the writing of a letter itself would be quite unreasonable to ask the employee to do.

An example where that can be suggested, as has been raised before, is someone who has been bullied because of their gender, their race, because they have raised a national minimum wage claim, or because they have raised a health and safety at work claim. If they are people who would be reluctant to raise the grievance because the offender, the bully, is the person to whom they would have to raise the complaint, then, of course, it would be wrong in those circumstances to bar them from the tribunal. That is understandable and we intend that regulations be made under Clause 31 to provide for exemptions from the need to complete procedures in these and other special circumstances. There may, for example, be some difficulties for people with particular disabilities. We shall have to consider that when we make the regulations. However, in the vast majority of cases I see no reason why Clause 31 should not apply to grievances taken up under these jurisdictions. There will be many cases where, for example, one is alleging discrimination on grounds of race and gender, of trade union membership, of raising health and safety at work complaints or the minimum wage, where the person to whom one raises the complaint is not the person against whom the complaint is being made. There will be cases of detriment because of, for example, raising a national minimum wage issue, where the grievance procedure does not require the complaint to be made to the person who is alleged in the examples given by my noble friend to be the person who is bullying the victim. Is there any reason in those circumstances why a letter should not be written before the complaint is made under these jurisdictions? It is difficult to see why not. The purpose of these particular clauses is to encourage employees and employers to seek to resolve disputes without resort to tribunals or courts. We believe that this provision promotes that.

Of course, we must take care to ensure that people who legitimately would not want to write a letter because of fear, bullying, harassment or other misconduct by an employer should not have to do so. We will seek to do all we can to ensure that. We will be happy to discuss it with my noble friends to ensure that it can be done. Remember that in relation to Clause 33 writing a letter to raise a grievance is not a bad thing to do, particularly when that procedure can, for example, get the issue pushed up to another level of management. That was referred to by my noble friend Lord Gladwin of Clee in relation to an earlier amendment.

It is not a bad proposition and it does not have the consequences that my noble friend, in his submission, suggested. The only case that my noble friend really posited was the bully and in those circumstances we will make provision. The fact that an assertion of detriment is made does not mean that such an issue cannot be resolved in certain circumstances.

Another issue to which my noble friend referred was redundancy payments. As far as this is concerned, he was absolutely right to say that they often give rise to complicated disputes, issues or misunderstandings between parties. The employee has a legal right to his redundancy payment, as specified by law or by a collective agreement. That does not mean that it is not sensible to write and raise the issue about redundancy to see if it can be resolved. Our intention in these particular jurisdictions is not to allow bullying and harassment to prevent claims being made. It is to seek to encourage resolution of disputes by internal procedures. Our regulations will seek to ensure that the proper distinction is made: not to punish somebody who reasonably did not raise I he matter through the grievance procedure—which we think will be the exception, not the normal case; on the other hand, we should make sure that where it can be raised it should be.

All the points made by my noble friend Lord Wedderburn of Charlton fall into the category of "You shouldn't have to and it's not fair to do so". I have dealt with all of them. There is no point in going through each of the individual jurisdictions and I am not going to do so. Every one of them fell within one of the points that I have just made.

We have listened very carefully and will discuss very fully with my noble friend and anyone else the details that he would like to see in the regulations to ensure—he rightly referred to this—justice in relation to those who should not be required to write a letter before they have the right to go to a tribunal. However, I do not think that if one sat down and went through it, we would disagree very much.

7 p.m.

7 p.m.

Lord Wedderburn of Charlton

I am sorry about that. I think I disagree very profoundly with my noble and learned Friend Lord Falconer of Thoroton about much of this. I am not sure whether he referred to cases of detriment or victimisation. He referred to cases of bullying.

Lord Falconer of Thoroton

Could I help? I was meaning to refer to the health and safety and minimum wage cases where there is provision for one not to he victimised. My noble friend called it "detriment"—that that is what it is called in the statute—and I meant to refer to those detriment cases.

Lord Wedderburn of Charlton

I appreciate what my noble and learned friend says. I can only say that the matter is here in the schedules. Cases of victimisation and detriment are put squarely within the new rules on penalties and prohibitions, and I do not see how regulations will take them out. Perhaps if someone is very badly victimised, the regulation will let them go in some special cases. Frankly, I do not agree that normal rights should be given only in very bad, bullying victimisation.

I believe that, in any case, one should have normal rights if one is victimised for trying to enforce one's basic employment protection rights. If a person tries to do that, he may be deprived of overtime, he may not be promoted or he may be victimised in some other way at his place of work. Why on earth should special rules apply to a person's ability to go to a tribunal and say, "That's not fair"? Some workers will say, "I'm not going near that employer again. Look what he did to me last week. Why shouldn't I go to the tribunal and say, 'That's not right'?" By hypothesis, let us assume that the worker is correct in his allegation. What is wrong with enforcing the right not to be victimised, but without special penalties and without special prohibitions?

With the greatest respect, I shall read very carefully what my noble and learned friend said. I do not believe that the defence of Schedules 3 and 4 is particularly effective. He said not one word about the European situation. I do not know whether the Government are remaining silent on that because, once again, they are confident that they will not be judged badly in the European Court of Justice in Luxembourg, but I wonder whether that is so. My noble and learned Lord said nothing whatever about the European dimension. Perhaps we are trying to take that issue off the agenda these days.

Lord Falconer of Thoroton

It was entirely my fault for not referring to the European dimension. We shall of course consider the issue of compliance with European law, but we are perfectly confident that we are complying with it.

However, I believe that this matter goes back to the essential point that I made at the beginning—that is, whether the obligation comes from European law or domestic law, the principle should be the same. If there is a good reason why one should not write a letter—for example, if one is being harassed or bullied—that would be dealt with in regulations. If not, then we do not see the justification. We are also saying that in every one of those detriment cases it would not be the case that there was a good reason for writing a letter.

Lord Wedderburn of Charlton

I see. Therefore, if someone were badly bullied, it would be unsatisfactory for a penalty to be placed on him by the employer if he tried to enforce his European rights, implemented into our law, but not if he were bullied just a little. People will read this and will ask what it means. They will go to an adviser and ask what this is about. The adviser will say, "I cannot tell you that until we have the regulations". He would be able to say, "I might be able to obtain a draft 30 days before the regulations come in". But he will then read Hansard and will charge an extra fee for that. He will say, "The noble and learned Lord, Lord Falconer, says that if you are bullied a little bit, then you are subject to all these penalties and prohibitions. If you are very badly bullied, then you may not be. But I cannot be sure until I see the regulations".

That is not at all satisfactory. These are shoddy legislative proposals. It is not good enough for citizens of the country to be subject to schedules of this kind concerning important limitations on their access to justice. There is nothing that we can do about it this evening. I am not sure what we can do this evening, but at present the best that I can do is beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 136 to 141 not moved.]

Schedule 3 agreed to.

Clause 32 [Consequential adjustment of time limits]:

Baroness Turner of Camden

moved Amendment No. 142: Page 37, line 17, after "State" insert ", after consultation with the Advisory, Conciliation and Arbitration Service,". The noble Baroness said: In moving Amendment No. 142, I shall speak also to Amendments Nos. 143 to 145. We now reach Clause 32, which makes provision for the Secretary of State, in relation to jurisdiction listed in Schedules 3 and 4, which we have just been discussing, by regulations to make provision about the time limit for beginning proceedings in respect of a claim concerning a matter to which a statutory procedure applies. Our amendment stipulates that the Secretary of State should exercise this power after consultation with the Advisory, Conciliation and Arbitration Service. This is important because ACAS is the body which has the expertise and experience in this matter. We are dealing with the imposition of time limits and the imposition of time limits within which a claimant may make a claim is a matter of some concern to that individual.

We are suggesting that it would be right to say that the time limit should not be less than three months. The employee concerned may be distraught by what has happened. He or she may need assistance and advice. For a member of a union, that would present no difficulty but many employees covered by this legislation will, as we know, be working in firms where there is no union and they may not at first know where to go for advice.

We have a workforce that is increasingly multiethnic. There may be language difficulties and such people tend to be very vulnerable. Although one can say, as a former union official, that everyone ought to belong to a union, nevertheless that is not always realistic. There is a duty upon politicians, in my view, to do what they can to protect vulnerable people. Our amendment provides that as regards the time limit, that should not be less than three months. That is referred to in paragraph 2 of Clause 32. We want "not less than three months" inserted there.

In tabling Amendment No. 145, we believe that there should be provision for the exercise of a discretion by the tribunal to extend the time for beginning proceedings. That is sensible because, again, the tribunal will have the experience of dealing with such cases and such people. I believe that it can be trusted to exercise discretion in a reasonable way.

We believe that these suggestions are sensible. We hope that they are regarded as constructive by the Government. We are intending, as I and my noble friends have stressed throughout our discussion of the Bill, to be as constructive as possible and I hope that the Minister will agree that this is such an amendment. I beg to move.

Baroness Miller of Hendon

To the extent that these two amendments seek to prescribe in the Act itself the time limit for the commencement of proceedings, we certainly sympathise with that idea. However, what we find unacceptable is that the limit should be not less than three months, only because this would entitle the Secretary of State to prescribe any limit of any length—even years and even something outside the normal period prescribed by the statute of limitations for ordinary civil claims. We believe that the limit should be relatively short because of the difficulty of remembering the sequence of events in what would be an intensely personal dispute. I regret, therefore, that we would not support the amendment as it stands. However, if it were to come back in a different form at a later stage, with an upper limit of a reasonably short length, we would certainly be willing to reconsider the matter.

In the last group of amendments, the Minister mentioned that he would listen to his noble friends. Then he said, "or other friends". He did not say he would listen to Members of the Committee. I say that only because, as I said before, I have some diffidence in supporting in case it does some harm to what are clearly very good amendments, or could be very good amendments.

7.15 p.m.

Lord Falconer of Thoroton

Indeed, I was so carried away with the warm and comradely spirits of the Committee that I regarded everybody in the room as friends. I should have said "Members of the Committee. I specifically referred to my real friends over here, in parliamentary terms, but I meant all Members of the Committee.

Perhaps I may deal with the points made by the noble Baroness, Lady Turner, and make absolutely clear from the outset that we regard these as constructive suggestions. If and in so far as there is a disagreement, it is not about the principle; it is simply about the drafting issues.

First, there will be a thorough consultation exercise before any regulations are made. Those people who will be consulted will, of course, include ACAS but I do not see any need for consultation with ACAS to be spelt out on the face of the Bill. The regulations will be concerned with the adjustment of time limits in relation to those jurisdictions listed in the Schedules 3 and 4. The aim is to ensure that the parties have a reasonable time to complete the statutory procedures before a complaint has to be made to an employment tribunal.

I can assure the noble Baroness and all Members of the Committee that the time limit for beginning proceedings in respect of a claim to which a statutory procedure applies will not be less than three months.

I would also draw the attention of Members of the Committee to a statement made in the Government's response to the consultation. It said that it is intended to extend the time limits for applying to a tribunal by three months where a claim has been submitted, or where procedures have been started but not completed, within the existing time limits for presenting claims. There will be further extensions of up to two months if both parties want this. All this was reiterated in committee in the other place.

The regulations will also make it clear, picking up the third point made by the noble Baroness, that it will be the tribunals which will exercise the discretion for extending time limits mentioned in subsection (2)(b) of this clause. I thoroughly endorse the point made by the noble Baroness that, of course, the tribunals are particularly well placed to exercise that discretion.

The precise details of the regulations have yet to be worked out but I hope I have said enough to allay concerns of the noble Baroness and other Members of the Committee and that she will feel able to withdraw her amendment.

Lord Wedderburn of Charlton

Before my noble and learned friend sits down, did I hear him to say that extensions beyond three months will only he allowed up to two months more?

Lord Falconer of Thoroton

I said that the time limit for beginning proceedings will be not less than three months. It is intended to extend the time limits for applying to a tribunal by three months. Where a claim has been submitted or where proceedings have started but have not been completed within the existing time limits, there will be further extensions of up to two months if both parties want this.

Baroness Turner of Camden

I thank the Minister for his response. I am glad to learn that the principles in the amendment are accepted and that the intention is that this will all appear in regulation. I still believe that it will be very much better if we had something on the face of the Bill, because this has been the standpoint of myself and my noble friends throughout our discussions. However, I am grateful for what has been said. I beg leave to withdraw the amendment.

Lord Falconer of Thoroton

Before the noble Baroness sits down, what I am being told from behind me is that there can be a series of two months' extensions. So you can come back to the tribunal and in the tribunal's discretion it can extend further. That would be in its discretion even when one party is opposed—but only by agreement.

Baroness O'Cathain

Before the noble and learned Lord sits down, does that mean that it could go on and on and on? There would be a huge problem for both the employee and for the employer if something were dragged on ad infinitum.

Lord Falconer of Thoroton

The extension may be granted only with the agreement of both parties and in the exercise of discretion by the tribunal.

Amendment, by leave, withdrawn.

[Amendments Nos. 143 to 145 not moved.]

Clause 32 agreed to.

Lord Falconer of Thoroton

moved Amendment No. 146: Transpose Clause 32 to after Clause 33. The noble and learned Lord said: This is a technical amendment to swap the order of Clauses 32 and 33. Following our amendments to Clause 33 in the other place, it is clear that the clause should now come before Clause 32. Clause 33 deals with presentation of complaints to tribunals and it makes sense for this to come before Clause 32, which is about consequential changes to time limits for making complaints to tribunals. Further, Clause 32 refers in a consequential way to Schedule 4 but it is Clause 33 that introduces that schedule. I hope that Members of the Committee will feel able to agree to the amendment. I beg to move.

Lord Wedderburn of Charlton

I hope my noble and learned friend will not mind if we go on referring to Clause 33. At Report, any references to Clause 33 will have to be carefully explained, of course, which will take a lot longer. It is a pity that this sort of jiggery-pokery has to go on. I quite see the logic of it, but Clause 33 is Clause 33. It has a bad reputation that will stick with it no matter what number it is given. However, I understand him.

On Question, amendment agreed to.

Clause 33 [Complaints about grievances]:

Lord Wedderburn of Charlton

moved Amendment No. 146A: Page 37, line 34, at end insert ", and (c) the necessary condition is satisfied The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 147A. Amendment No. 149ZA has been grouped with these two amendments. It is the view of my noble friends and myself that this is inappropriate. I have to give notice that Amendment No. 149ZA will, in accordance with the usual principles, be moved separately.

Amendment No. 146A is concerned with Clause 33—I almost said, "The notorious Clause 33". Clause 33 applies to all those jurisdictions in Schedule 4 that we looked at and which caused a certain amount of doubt in the minds of some Members of the Committee. In all those jurisdictions and all the cases of victimisation and the rest of it, Clause 33 says: An employee shall not present a complaint to an employment tribunal under a jurisdiction if"— two conditions are satisfied. The first is that the matter concerns paragraphs (6) or (9) in Schedule 2; that is, setting out a grievance and sending a copy to the employer in writing or—I apprehend when we come to look at the Bill again—sending it or a copy, I hope, to the employer in writing.

Amendment No. 146A would add a third condition. I will not rehearse again the many cases in which we think it quite unreasonable that even that step should be required of many workers—it may be reasonable in some cases—but to present it as an absolute rule and then say one will allow a few workers not to be caught by it in regulations, seems to us quite wrong.

The general rule should be the addition of our third condition. We have said that the third condition—and I quote from Amendment No. 147A— is satisfied where in the case of a grievance connected with—

  1. (a) a dismissal or threatened dismissal, or
  2. (b) a detriment or threatened detriment that has been or may be suffered by the employee,
the employer has given to the employee an assurance that he has conducted an appropriate investigation into the case and has supplied to the employee a summary in writing of the steps he has taken in that regard and, where reasonably practicable, in a case falling within paragraph (a)"— I interpose that that is a case of dismissal or threatened dismissal in connection with which the grievance has arisen— of the reasons why the lesser step of a warning or a suspension is not appropriate". Everything that has been said by the Government in response to our request that the concept of investigation be built into Schedule 2—the noble Lord, Lord Sharman, also moved amendments in the same respect—is irrelevant to this amendment. The Government case previously was that the present law concerning the decision of cases in a tribunal still includes the requirement of an investigation by the employer, certainly where there has been a dismissal and in other cases of detriment as well. It might well be unreasonable of an employer to take disciplinary steps against an employee without proper investigation. It will go to reasonableness.

Neither we nor the Law Society like the idea of prohibiting access to justice. The Law Society gave us a brief in which it said that Clause 33 really should be struck out of the Bill. It is of the opinion that, given the Government's premises, Clause 31 would suit it very well and would be enough and that Clause 33 is unnecessary. But given that the Government wish to introduce some prohibition on access to justice, at this stage—I underline that—of affairs, an employee could only, even on the Government's hypothesis, be reasonably excluded from the doors of the tribunal where, in face of a threatened or actual detriment or dismissal, about which he wishes to raise, or in connection with which he wishes to raise, his grievance, where the employer has assured him that what has been done, or what is about to be done, has been done on the basis of proper investigation.

I see the case, although I would want to look at it very carefully, but, where an employee has been given an assurance of that kind, I can understand that it is arguable to say, "This has all been looked at with great care, and the following are the things you have done that I do not like and that I am going to impose a detriment for". If they receive such an assurance, it is arguable that he should take a step in a statutory grievance procedure, perhaps, and the tribunal should say, "No, unless you do that, we will not hear you, because we have seen the assurance of the employer".

Someone will raise a problem with that. It will be said, "Will they see the assurance from the employer?". First, they can see it if they put a little box on their new prescribed form under Clause 25. "Have you been assured by your employer that he has investigated the case—yes or no?"

Secondly, in another place, the Minister, my honourable friend Mr Johnson, said that the tribunal would know whether the employee was prohibited from presenting a case either from the ET1 form for the presentation or the communication of a complaint, or from the employer's response on ET3. In other words, the Minister in another place accepted that the tribunal would need to see some of the circumstances before it knew whether or not the employee was allowed to present a complaint, in the words of Clause 33. If the Minister tells me that that is not so, I can only ask him how on earth the employment tribunal is to know whether it is receiving a complaint which is prohibited from being presented.

Of course my noble friend Lord McCarthy will want to ask many more questions about the form, because it is via the form that we suspect the Government will allow the tribunal to find out, by new questions on the form about whether he has taken certain steps or not. If it is going to do that, then it can add another question although, as the president of the Employment Tribunals Service has said, these forms are likely to get pretty complicated and become something of a nightmare if a bureaucratic hand adds questions to them.

But this is an assurance that a worker who is to be prevented from having a day in the tribunal to enforce his rights is entitled to have. He is entitled to have at least the assurance that the case has been properly investigated. He is entitled to an assurance that he will not be given a small warning or a small suspension because the facts of the offence which he is alleged to have committed are those in the document or the communication which the employer has made available to him. Where reasonably practicable—we have attempted to be more than reasonable in the words of the amendment—he is entitled to be told the reasons why those lesser steps are not to be taken against him.

The amendment is moved on the basis that the Government's hypothesis is right: that the Government need Clause 33—which we dispute—and that it is right to enforce against workers' generally, whatever the small number of exceptions. We have been told that the exceptions will be Limited to a small number of cases. We object to the prohibition of access to tribunals. However, if those objections are to be overridden, workers must at least be confident that the Government do not intend to cut applications to tribunals by 40,000 cases by the imposition of unfair rules.

The distrust, which is widespread, could be somewhat assuaged by the inclusion of a rule of this kind—these are words which my noble and learned friend may wish to criticise—setting out that a worker should be assured that a great deal has been done to ensure that he has a case to answer and should therefore go into procedure. It is a good trade union principle that, if there is a case to answer, one goes into procedure, but if a person does not have the assurance to know that there is a case to answer, he will feel hard done by and he will be right. I beg to move.

7.30 p.m.

Lord Falconer of Thoroton

This matter involves a degree of complication that is very difficult to follow. My noble friend is saying that we should accept the hypothesis—which I do not—that, if one is an employee, one must first write a letter before going to the tribunal. Let us add another condition that, before the employee can go to the tribunal, not only does he have to write a letter to his employer but his employer must, by one means or another, assure the employee that the grievance raised has been properly investigated. That is what the amendment states; that is how it was introduced. It concerns a level of obstruction which is hardly worth addressing. One ends up with the situation in which the employer, simply by saying that he has not investigated and by not giving the assurance sought by my noble friend, can prevent the employee ever going to the tribunal. That is plainly not what my noble friend intends. Therefore, perhaps he would explain how it works.

Lord Wedderburn of Charlton

I am grateful to my noble and learned friend. I thought that I had explained, but my explanation was plainly inadequate. I shall read it. This is not about the assurance of the employer operating in the way he described; it operates in the following way. At present the clause states that the employee is prohibited from presenting a complaint to the tribunal unless the two conditions are satisfied. The first step relates to the grievance procedure, and he has not completed that.

Lord Falconer of Thoroton

He must send the letter.

Lord Wedderburn of Charlton

He must complete— I quote the clause, the requirement in paragraph 6 or 9 of Schedule 2 has not been complied with". Therefore, he should send a letter. He has not clone that. We say that if he has not sent the letter, he is still allowed to go to the tribunal. That is what the amendment states. It is not quite what my noble and learned friend understood it to mean. He was quoting the mis-type where I inserted the word "not" in the wrong place in my first draft, which he seems to have obtained. But it is not what is printed. He is not allowed to go to the tribunal where the necessary condition is satisfied. The necessary condition is satisfied if the employer has given him this most important assurance. He is entitled to know when he is stopped from going to the tribunal that the matter has been properly investigated. There is nothing complicated about that. It is very simple. I am baffled that someone with the experience and learning of my noble and learned friend should find this simple amendment complicated or difficult in any way. I shall read it again. It states: The necessary condition is satisfied"— that is to say, when he is prevented from going to the tribunal in these cases of dismissal, detriment and grievance— where…the employer has given to the employee an assurance that he has conducted an appropriate investigation", and so on. That is not at all what my noble and learned friend said. I shall read Hansard with interest as I may have misheard him but it is not at all what I thought he said. This is not fiendishly complicated. It says to the employer, "If you want to join in the abolition of the 40,000 cases and you want to stop the employee going to a tribunal, then you assure your workers that you conduct proper investigations into your cases of detriment and dismissal". What is wrong with that?

Lord Falconer of Thoroton

That is fine and very clearly put. The amendment says that you must give that assurance in relation to the letter that has been sent. But I accept what my noble friend says. All that we are saying in our procedure is that one has to write a letter raising the matter before. Presumably, it is not a grievance that has to be raised in writing. I am not quite sure how one identifies the grievance. In his amendment my noble friend has done it by reference to the letter at the first stage in the procedure. However, apparently we can ignore that now. It is just some unidentified grievance, saying that an assurance has to be given in relation to the case that a proper investigation has taken place. If, again, that is the proposal that he makes, again, it would appear that the employer can prevent the employee going to the tribunal, because what the employee wants is the ability to go to the tribunal. What the procedure involves is simply saying, before you do that, subject to the exceptions, you should write a letter.

Lord McCarthy

No. The amendment provides that you can go to the tribunal without the letter in the good old-fashioned way, unless the employer does something as well as you. What you have to do is write a letter; and what the employer has to do is to do what we are saying in Amendment No. 147A. It becomes, in a sense, a kind of parity. If the employer will not do it, he cannot stop you going; you go.

Lord Falconer of Thoroton

I see. The amendment therefore provides that, if the letter has not been sent, the employee can say, "I don't need to send the letter unless the employer gives the assurance that he has properly investigated the matter".

Lord Wedderburn of Charlton


Lord Falconer of Thoroton

I understand now and I apologise. It was entirely my fault for not understanding until it was explained so clearly by my noble friend. With respect, that is an unnecessary degree of complication. I do not really think that my noble friends Lord McCarthy and Lord Wedderburn believe that it is an appropriate degree; and they are saying sotto voce that they do not believe it is an appropriate degree of complication. It is a sort of— I am not quite sure what it is. We just have to address the question: are we right or are we wrong in requiring this letter in the first place? We think that we are, subject to those exceptions. I do not believe it really throws much light on the issue by this if, which we deny, you require this letter, there should be this procedure as well. It does not really advance the debate one jot.

Lord McCarthy

At least it completes the debate properly at half-past seven. The noble and learned Lord has used every reason to reject our amendments except that we do not believe what we say. So now he has completed it. there is nothing left.

Lord Wedderburn of Charlton

I can assure my noble and learned friend that we believe every word that we say. I made it quite clear. I moved the amendment on the basis of the Government's own hypotheses. They want a letter to be sent. I want this to be even-handed. This amendment introduces an even-handedness. I feel as though I am in "My Fair Lady" and want to say, "By Jove, he's got it!". He has suddenly understood the effects of the amendment.

My noble and learned friend now understands that an employer cannot stop an employee going to a tribunal. However, he can stop the employee going to a tribunal if he does not give the assurance, and so it is even-handed. It is not very complicated. He thinks if he introduces a degree of complication which is in the Bill, it baffles the lay mind. This would not. If the only objection to the proposal is that it is not to be an assurance in writing, I will happily by manuscript amend the amendment to include a written assurance rather than one that is not written. That puts an extra burden on the employer.

I was very gentle in my burdens on the employer. It is just an assurance, and if that is what the noble and learned Lord objects to, I hope he will understand that we can bring it back on Report and move it as a written assurance.

Lord Falconer of Thoroton

Let the whole House hear it.

Lord Wedderburn of Charlton

Yes, indeed, my noble and learned friend is quite right. However, since the debate has been prolonged on the basis that my noble and learned friend did not appreciate the effect of the amendment, he cannot expect me to say other than that we shall consider bringing it back in a better form on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton

For a variety of reasons, this may be a convenient moment for the Committee to adjourn until Monday next at 3.30 p.m.

The Committee adjourned at eighteen minutes before eight o'clock.