§ 7.45 p.m.
§ Moved, That the Bill be further considered on Report.—(Lord Drumalbyn.)
§ Clause 23 [Meaning of "dismissal"]:
§ LORD STOW HILL moved Amendment No. 47A:
Page 18, line 18, at end insert—
(c) his employer has by a consistent course of conduct in relation to that employee intentionally brought about circumstances in which it is reasonable for that employee to give notice terminating his employment and he has given such notice wholly or mainly in consequence of such circumstances.")
§ The noble Lord said: My Lords, I beg to move this Amendment which is designed to extend the definition of "dismissal" contained in Clause 23(2). At the moment, that subsection provides that an employee is to be taken to be dismissed if the contract under which he is employed is terminated by the employer with or without notice, or if his contract comes to an end and is not renewed. The addition which I seek to embody by the Amendment which I am moving is designed to provide for the situation in which perhaps there has been friction between an employer and a particular employee, and the employer in consequence wants to get rid of the employee. It is expressly to provide for the case in which the employer has, by a consistent course of conduct in relation to that employee, intentionally brought about circumstances in which it is reasonable for him to give notice and he has given notice because of those circumstances. One hopes that that is not a very common occurrence but if one is trying, as the Government are, in these clauses to work out a general code relating to unfair dismissal, it is the submission of this side of your Lordships' House that it is right, in order to see that justice is done overall, to provide for the kind of case even if, as 738 I have said, it is an infrequent one. Whether the drafting is satisfactory I leave to the noble Lord, Lord Drumalbyn, to judge.
§ I submit that the Amendment is properly conceived to apply to the circumstances, and only to the circumstances in which an employer has, on purpose and intentionally, brought about circumstances, a state of affairs, not on one particular day but by a consistent course of conduct, and that that conduct has been designed to affect that employee himself particularly, and that that conduct has continued to such an extent and with such effect that any ordinary person, looking at the situation from outside, would say, "It is reasonable for that employee to leave that employer." When the situation is such that the employee as a consequence of these circumstances gives notice to terminate his employment, then, if the House accepts my Amendment, the result would be that within the meaning of Clause 23 the employee has been dismissed, and if there were no circumstances justifying dismissal then he could claim compensation as for an unfair dismissal. This is a completely non-Party point and I submit that it completes the code in a not altogether unimportant particular. I beg to move.
§ LORD STONHAM
My Lords, I hope that the Government will accept this Amendment, which is most reasonable. It is not designed to deal with the good or average employer, but is aimed at the unscrupulous employer who will adopt any device to make life impossible for a particular employee, with the object of getting rid of him and, at the same time, disqualifying him from receiving the benefits to which he would otherwise be entitled; for example, employment pay or redundancy benefit, to which the employer would have to make a contribution. I cannot see that there can be any possible objection to giving employees this protection. It is no good saying that it does not or cannot happen. The Amendment describes particular circumstances in which some employees are dismissed. Life can be made intolerable for them in their employment, designedly so, to ensure that they are goaded eventually to resigning and leaving their employment. The position is very clear and is not to be answered by any sophistries.
§ 7.52 p.m.
§ THE LORD CHANCELLOR
My Lords, we had a very full debate on precisely this point in the course of Amendment No. 204 on the Committee stage. While I did not seek then to pretend either that circumstances of the kind envisaged in the Amendment could not conceivably take place or that, if they did, the conduct of such an employer would not be open to strong criticism, I made it plain that I did not think it was possible to give effect in this Bill to a direct remedy by way of compensation for unfair dismissal. I gave my reasons at some length in the course of three interventions in the Committee. I do not know—and I say this without disrespect to either of the noble Lords who have spoken—that I can usefully add very much to what I said then.
The noble Lord, Lord Delacourt-Smith, who at that time moved the relevant Amendment (No. 204), began by admitting with the candour one has been accustomed to expect from him that the Labour Government's Bill was in exactly the same position as ours. That fortified me in the conclusion that, despite the confidence of the noble Lord, Lord Stonham, that there could be nothing said against art Amendment of this type, the matter had been considered by the previous Administration, who had been driven, no doubt against their will, as we were, to the conclusion that Amendments of this kind were not really a feasible proposition. It is fair to the noble Lord, Lord Delacourt-Smith, to say that he expressed the confidence that had the Labour Government's Bill been, as he put it, "refined" in the fires of the Committee stage (a pleasant enough simile for those of us who have endured those fires) they would have managed to secure a solution; but he did not suggest any solution that would be attractive to the Government; or convince the Committee. I do not know that this Amendment in the name of the noble Lord, Lord Stow Hill, which puts the point very succinctly, puts the matter any better.
It is conceivable to imagine a situation, especially in a very small employment (though not so easily in a very large one) where an employer, as in a marriage, deliberately makes life unendurable for the employee, as a husband or wife in marriage can do to a partner, 740 with the direct intention of getting rid of her or him. It is an extremely difficult and complex inference to have to draw in matrimonial cases. I should be reluctant to introduce it into a Bill dealing with industrial relations. I cannot help mentioning, in parenthesis, that it seems to me to be quite extraordinary that in Amendment after Amendment the Party which condemns us so wholeheartedly for introducing a complex, legal framework within which industrial relations have to be carried forward in future should again and again propose Amendments which can only open the doors to an unlimited spate of litigation, arguing about problems the resolution of which was next to impossible.
I can only remind the House of what I said to the Committee. I said in the first place that one should remember that by providing a remedy for unfair dismissal the Government were proposing a new remedy with a new source of compensation over and above that provided by the law of contract. You begin to argue about compensation for unfair dismissal at the point where you assume that neither the employer nor the employee has directly broken the terms of contract of employment, but the employer has unilaterally terminated it. We, and also the Labour Government, thought that although the argument was complex enough, when you came to discuss what dismissals were unfair (and the two respective Governments arrived at solutions which were different, ours being slightly the more generous to the employee), the test of what constituted or did not constitute a dismissal should be as simple as possible. Clearly, even in relation to strike and lock-out situations it is difficult to define dismissal in terms which are incapable of argument. Fortunately, the great number of dismissals take place out of the context of the strike or lock-out situation. Therefore it is possible to define them in terms of a unilateral action by an employer against an employee. If you abandon that and start introducing cases where the contract of employment is terminated by mutual consent or mutual dislike, or is terminated by the employee either on terms of mutual dislike or because of unilateral dislike on his part, you open the floodgates to a series of hotly contested cases of litigation in precisely the situation in 741 which neither party can be said to have broken the contract.
As I pointed out in the Committee, in a sizeable minority of what I hope will be an extremely small minority of cases, the employer would have broken the contract, and if he had done so he would be liable to an action for damages at common law. At present under the county courts procedure, when Clause 112 is activated by the Secretary of State, the employee will be able to go to the industrial tribunal, at least as an alternative, but in a number of cases the law already provides a remedy. At the end of the day, I would firmly say that the decision arrived at in Committee was correct. Both Governments have come to the conclusion that this extremely rare type of wrong-doing is not capable of remedy within the framework of this Bill, though it may turn out that someone more ingenious than myself might find a remedy—but certainly not within the framework of this Amendment. I feel that the Amendment would lead to a vast number of cases in the courts, some of which would be difficult and some equivocal. At the moment, the Government do not know what load will be placed on the industrial tribunals. There are, I believe, some 10 million terminations of contract already. I could not willingly accept this Amendment, though I accept without resentment the extremely moderate way in which the noble Lord, Lord Stow Hill, has proposed it and the arguments advanced by the noble Lord, Lord Delacourt-Smith, when similar points were raised under different Amendments. I very much regret that I cannot give the noble Lord satisfaction by accepting this Amendment.
§ 8.2 p.m.
§ LORD DELACOURT-SMITH
My Lords, I do not wish to terminate the debate by intervening, particularly as my noble friend Lord Stow Hill may wish to address himself to the legal aspects of the argument on which the noble and learned Lord on the Woolsack relied. As the noble and learned Lord said, we traversed this ground on Committee stage, when the Amendments bearing upon this matter were withdrawn after discussion in the hope that by further consideration, although the noble and learned Lord was fairly discouraging at 742 the time, some solution would he found. It was in the 'light of our consideration of the Committee proceedings that my noble friends and I put down this Amendment, which we hoped might assist the position.
I should like to make one or two observations on the necessity for the insertion of some such provision if we are to make the arrangements for dealing with unfair dismissals as comprehensive as is reasonable in practice. I do not see all the difficulties. It seems to me desirable that we should have this third category in subsection (2). After all, this is a clause which defines dismissal. The remaining clauses deal with the issues of dismissal, but those do not begin to arise until a dismissal has been established. I recognise fully that it might be hard for an individual to establish that his resignation falls within the Amendment, but it is common ground among noble Lords who have spoken that such cases do arise. The harshest and hardest cases of this type tend to be cases of elderly men and women who have given a considerable period of service to the organisation from which they feel themselves under an obligation to resign. I appreciate the noble and learned Lord's point about the possibility of cases which did not have substance. However, I think that that is a consideration which applies to many proceedings which might arise out of this Bill, and the point has frequently been made that if there is any possibility of even a small number of cases of injustice arising, we should do our best to deal with them.
Although I appreciate the noble and learned Lord's desire to meet the point, I cannot feel that he has given a convincing answer. While I realise that it may be difficult for an individual to substantiate his claim, I still think that there is virtue in having the provision in the Bill, so that even in such a limited number of cases people are not left—even though there are possibilities of proceeding in other ways—without any possibility of establishing that they had in effect been dismissed and were therefore entitled to have their cases considered under the succeeding clauses of the Bill.
§ LORD STOW HILL
My Lords, while I thank the noble and learned Lord for his answer, I would have been glad had 743 he been able to say that he would give a little further thought to this. I think that we are agreed that injustice might result, if provision is not made for this sort of case. I accept that a counterbalancing consideration is that we may get a number of cases before the industrial tribunals in which an employee has left and the tribunal is called upon to decide the extremely difficult issue of fact as to why he left—whether as a victim of persecution, or in a pique because he was over-sensitive or (a much more obvious case) because he thought he could discern a better opportunity of employment in some other direction. I accept that the balance is difficult to hold.
My own view is that of my noble friend Lord Delacourt-Smith, that the resulting cases of hardship and injustice might be sufficiently numerous for another effort to be made to try to formulate some more satisfactory drafting terms. That is why I would have been glad to hear the noble and learned Lord say that he had not closed his mind. There is time between now and Third Reading. I do not think that, ordinarily, it would be so difficult for an industrial tribunal on an issue of fact to come to a reliable conclusion. The employee would have to say what circumstances he relied upon, they could be investigated and the tribunal would have to conclude on them, as on other issues raised in cases of unfair dismissal. However, there is the argument and the reply. I would be glad if the noble and learned Lord said that, even at this late stage, he would give some further thought to it. The tribunals are intended to be courts of justice, and I would have hoped that an Amendment could be drafted to provide for the cases I have envisaged.
§ 8.10 p.m.
§ THE LORD CHANCELLOR
My Lords, the noble and learned Lord has appealed to me. I can only utter again by permission of the House. I have not given the noble Lord the smallest encouragement either on Committee or now, but since he asks me to give further thought to this matter let me give him this general assurance: I will always continue to reflect on matters of this kind, but I do not think the difficulty consists in finding a form of words but in finding a solution which would be capable of practical application in the courts. There- 744 fore, I do not think it is a matter of drafting. If it were I would be much more optimistic but the noble Lord having made this appeal to me, I would like to tell him that there is nothing to which I shall close my mind even at this late stage although I do not want to give him the smallest encouragement.
§ LORD STOW HILL
My Lords, I ask leave to speak again, just to say "Thank you very much". I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 24 [Fair and unfair dismissal]:
§ THE LORD CHANCELLOR moved Amendment No. 48:
Page 19, leave out lines 10 to 14 and insert—
(" (1) In determining for the purposes of this Act whether the dismissal of an employee was fair or unfair, it shall be for the employer to show—
(1A) In subsection (1)(b) of this section the reference to a reason falling within this subsection is a reference to a reason which")
§ The noble and learned Lord said: My Lords, it would be possible to propose this Amendment in two ways, a long way and a short way. I propose to take the shortest route that I can to the objective. This and the next two Amendments arise from an undertaking given in Committee on what was then Amendment No. 203. Members of the Opposition considered that the unfair dismissal provisions did not clearly and unmistakably place the onus of proof on the reason for dismissal on the employer, and my noble friend the Leader of the House agreed to look again at the provisions of Clause 24.
The purpose of these Amendments is to make it absolutely clear that the onus of proof on the reason for dismissal rests fairly and squarely on the employer. I have used the expression "these Amendments". The Amendments are Nos. 48. 49 and 50, but there is a consequential Amendment No. 56. Your Lordships
will see that what is proposed in subsection (1) is to substitute a clear statement of what the employer has to show, and then, in subsection (1B), at the end of line 23, it is proposed to insert a provision that
Where the employer has fulfilled the requirements of subsection (1) of this section, then, subject to sections 25 and 26…
with which at the moment I shall not concern your Lordships—
the question whether the dismissal was fair or unfair shall be determined in accordance with the following provisions of this section".
Then, at page 20, line 5, it is proposed to put in this new subsection—
Subject to subsections (2) and (3) of this section, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances he acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee;
§ If I may add a word of commentary on the last of these insertions it is this: supposing you get a situation in which an employer has dismissed an employee for lateness, there can be circumstances, and there can be employments, in which the smallest degree of lateness might be a reason for terminating the employment. Ordinarily it is not. If an employee comes a quarter of an hour late very occasionally, and has a good reason for doing so, no sensible or reasonable employer would terminate the employment, although if it happened habitually every day, he might take a different view. On the other hand, there would be sensitive employments when a whole town might be put in danger and when a small degree of lateness would justify dismissal. These are questions of fact for the tribunal. That is why it is established by the last Amendment that before you can decide the question in the ultimate, you have to look at the actual conduct complained of, even if it is established, to see whether in the circumstances it is reasonable to terminate the employment on those grounds. I beg to move.
§ LORD STONHAM
My Lords, may I take it that in deciding whether the dismissal has been fair or unfair the employee will have full opportunities to state his case? The kind of example I have in mind is that of a man perhaps employed satisfactorily for some years and of whom little has been heard during the course of his employment. He 746 becomes a shop steward and it seems, both to his fellow work-people and to his employer, that his whole character has changed. From being a cog in the wheel he has become a thorn in his employer's side. This may be because he is properly and responsibly fulfilling his duties as a shop steward. The employer, however, may take a different view and may decide he does not want him in his employ. If he does so decide, there may be several ways in which he can achieve his objective—for example, in the selection of work. In such a case I have little doubt that the employee could prove that he had been unfairly dismissed. I should like to know whether such a case could be dealt with under this clause of the Bill?
§ THE LORD CHANCELLOR
My Lords, if I may reply to that with the permission of the House, the answer is Yes, he would have an opportunity of stating his case.
§ LORD DELACOURT-SMITH
My Lords, this Amendment is not an easy one for those of us who are not deeply experienced in legal matters to appreciate, but I am fortified by the assurance of the noble and learned Lord, which naturally I accept, that its intention and effect is to place beyond any doubt at all the proposition that the onus of proof is on the employer to establish that the dismissal was a fair one. I appreciate the actions of the Government in putting forward Amendments that are designed to make this clear.
§ Amendment moved—
Page 19, line 23, at end insert—
("(1B) Where the employer has fulfilled the requirements of subsection (1) of this section, then, subject to sections 25 and 26 of this Act, the question whether the dismissal was fair or unfair shall be determined in accordance with the following provisions of this section").—(The Lord Chancellor.)
§ Amendment moved—
Page 20, line 5, leave out from beginning to ("shall") in line 18 and insert—
("( ) Subject to subsections (2) and (3) of this section, the determination of the question
whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances he acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question").—(The Lord Chancellor.)
§ 8.20 p.m.
§ LORD DELACOURT-SMITH moved Amendment No. 50D:
Page 20, line 19, at end insert—
("( ) Where a registered disabled person is dismissed and the principal reason is shown to be the employee's lack of capability, then in deciding for the purposes of this section whether the dismissal shall be regarded as fair, the Tribunal shall take into account whether or not the employee was replaced by a registered disabled person.")
§ The noble Lord said: My Lords, I beg to move Amendment No. 50D standing in the name of my noble friend Lord Diamond. This is a simple Amendment the effect of which will I am sure commend itself to your Lordships. There is very little need to explain it; it largely speaks for itself. As will be seen, it deals with a situation in which a registered disabled person is dismissed and the principal reason given is that he is not able to perform the duties for which he has been employed. It would, in our view, be most material for the tribunal to be aware of whether in fact the employee in question had been replaced by another registered disabled person. I am sure that this general proposition—the desire to do something in respect of this point—will commend itself to the Government, and I hope that they will find themselves able to accept this Amendment or, at any rate, the substance and spirit of it. I beg to move.
§ THE LORD CHANCELLOR
My Lords, I wholeheartedly agree with the purposes which the noble Lord, Lord Delacourt-Smith, has in ensuring proper protection for registered disabled persons under the "unfair dismissal" provisions of this Bill. The difficulty that arises is this. Quite obviously, to my mind, if the employer purports to dismiss the registered disabled person on the grounds of capability (which for the purpose of discussing this Amendment is the relevant ground upon which he could do so 748 without being unfair) should the employee challenge the bona fides of this ground he would be entitled without any Amendment of this kind to draw the attention of the tribunal to the fact that the employer had in fact replaced him by somebody other than a disabled person. I have no real doubt about that. It would be a relevant factor, although it would not be a conclusive factor. To that extent the Amendment is not a necessary Amendment.
Difficulty arises from two sets of related circumstances. It may well be, to take one set of circumstances first, that an employer employs a disabled person with a particular disability and comes to the conclusion, after seeing him attempt to work, that it either is not safe or is not wise to continue with a disabled person to do that particular work. In those circumstances, I do not think anyone would wish to say that the employer was not entitled to terminate the employment without his action giving rise to a claim for unfair dismissal. In the second place, all disabilities differ in kind: there can be a disability of the eye, of the hand, of the leg. Therefore, whether one replaces a whole employee with a registered disabled employee, or replaces a disabled employee with a whole employee, is not a conclusive test of whether the previous employee is a person who was dismissed for want of capability.
Those circumstances would not in themselves be an insuperable objection to an Amendment of this kind—which, as I say, is more to be criticised on the grounds of its want of necessity than of its want of desirability—were it not for the fact that the Disabled Persons (Employment) Act 1944 provides, I submit to the House, the correct protection for employees of this kind, and the one which Parliament has designated for the purpose, and which is as a matter of fact designed for this purpose. It does not apply to very small establishments, but it applies to all employers with 20 or more employees, and requires such employers to give employment to a quota. Failure to employ the quota of registered disabled persons does not in itself constitute an offence, but there are two safeguards. The first is that an employer must not discharge a registered disabled person without reasonable cause—and I 749 use the phrase "without reasonable cause" because it is the actual language of the Act—if he is below his quota, or if the discharge would bring him below it. If he does so he renders himself liable to prosecution under Section 9 of the Act. Moreover, while an employer to whom the Act applies is below quota he may not engage anyone other than a registered disabled person without the Secretary of State's permission.
The view of the Government is that the provisions of this Act, which was I think one of the fruits of the Coalition Government, provide adequate protection in this field, and probably more suitably designed protection than that which the noble Lord has in mind. In addition to that, I would have argued and urged the factor to which I attach importance; namely, that I am myself quite convinced that if anyone wanted to challenge the bona fides of an employer's dismissal of a disabled person for the purposes of a claim for compensation for unfair dismissal before the industrial tribunal under these provisions, he would in fact be entitled to refer to the nature of the person who was engaged to take his place. For those reasons, and without any want of sympathy in the case, I would submit that the Amendment is not one which ought to be pressed.
§ LORD STONHAM
My Lords, I find myself in some difficulty over this Amendment because it says:Where a registered disabled person is dismissed and the principal reason is shown to be the employee's lack of capability…".But the employee's lack of capability is known when he is engaged, and therefore I find it difficult to see that that would be adduced as a reason for dismissing him. Disabled persons fall broadly into two classes: those who can do a particular job, in certain conditions as well as a person who is not disabled, and those who, by reason of their disability—blind persons, for example—have an output far below that of a well person. The degree by which the second class of disabled person falls below the output of a well person is quite remarkable.
On Saturday, at a meeting with a trade union organiser, one of the items discussed was the position of one of my own employees who is terribly disabled. I hasten to add that he was not in danger 750 of dismissal; it was a question of deciding how his wages should be increased. The trade union official himself suggested that this man should be regarded as doing a 20-minute hour; that is to say, his output, in the estimation of the trade union, was one-third that of a normal worker. That is how it was decided. I do not quite see how any employer on that basis could eventually discharge a disabled person because of a lack of capability. The man's lack of capability was assessed when he was engaged, and I do not sec how a dismissal in any case could he regarded as fair. I feel that the addition of these words will create dubiety in a situation where at present good will exists among the overwhelming majority of employers.
§ LORD SOMERS
My Lords, the noble Lord, Lord Stonham, has said that a man's lack of capability is known when he is engaged. But is it not true that that disability might increase during the period of his engagement? Supposing, for instance, it is a question of poor sight: it is quite true that during a year's work his sight may have deteriorated very greatly. Therefore I do not think one could say that his disability was known when he was engaged.
§ VISCOUNT HANWORTH
My Lords, I was going to make the same point as the noble Lord, Lord Somers, has just made; but I make one more. If the nature of the firm's business changes or increases in scope, it is quite possible to envisage circumstances where the disabled man will be no longer able, with the best will in the world, to perform these duties.
§ LORD SLATER
My Lords, while it may have been a short debate on this matter, I am grateful that the noble and learned Lord on the Woolsack brought out the position of the previous Act and the powers that exist under that particular section with regard to these disabled people in firms with 20 or more employees. However, on the point made by the noble Lord, Lord Somers, in regard to poor vision which may deteriorate and have an effect on the man's capabilities, there is something else which noble Lords must never forget. Within industry, where certain people rise in the ranks it is possible for a certain type of individual to be put into a position of authority. 751 He may be able to curry favour with a certain number of people, but not with the majority of people in that factory. Because of that, he must have an outlet somewhere, and that is in regard to the disabled person. I have seen that happen.
The outlet has the effect of his thinking that this man has not the capability, and he therefore recommends that the man be dismissed and be replaced by another disabled person, if only to brine the number up to the quota enforced by the regulations. I have seen a situation in which an individual, because he cannot get his own way with the language he has been accustomed to use with people with whom he has worked side by side, once he reaches that standard of promotion is able to talk only to the disabled person because he knows what answers he will get. This disabled person has to be very cautious and wary; he must watch his step, because he knows that the first wrong move, so far as this individual is concerned, will mean that he will be given notice arid will be dismissed from service. I have seen this operate, and I have had to take action. In many cases I have taken action against the recommendation made when I was in a particular Ministry. That is one instance where I have had experience.
Apart from the advice, which I believe is reasonable, given to us by the noble and learned Lord, the Lord Chancellor, I do not know what is the attitude of mind of my noble friend who has moved this Amendment.
§ LORD DELACOURT-SMITH
My Lords, the position of the registered disabled is always a somewhat complex one, and it is of great human importance in industry. Noble Lords who have contributed to this short debate have touched on a number of aspects, but if one looks at the actual Amendment which is before this House I am certainly disposed to say that what has been said by the noble and learned Lord on the Woolsack is perhaps the best line for the House to take at this stage on the matter. In the light of the statement which he has made, and the advice which he has given to the House, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.752
§ Clause 26 [Dismissal in connection with a strike or other industrial action]:
§ LORD STOW HILL moved Amendment No. 50A:
§ Page 21, line 25, leave out ("not be regarded as unfair unless it is shown") and insert ("be regarded as unfair if it is shown").
§ The noble Lord said: My Lords, this is a short and simple Amendment. My only purpose in proposing it is really to do no more than simplify the language by removing one double negative. As at present drafted, if the principal reason for dismissal was that the claimant took part in the strike or other industrial action, the dismissal shall not be regarded as unfair unless it is shown to be as in paragraphs (a) and (b). I seek to substitute for the words "not be regarded as unfair unless it is shown" the words "be regarded as unfair if it is shown". I have puzzled over those words; I do not think that they alter the meaning and I think they are easier to read and to follow. It is for that limited purpose that I propose this Amendment.
§ THE LORD CHANCELLOR
My Lords, at this stage this Amendment, unless it is related to some other Amendment, appears to be purely a matter of drafting and to have no significant effect on the Bill at all. That is the advice that I have received. Should I turn out to be wrong about it, I should like to come back and tell the noble Lord that I have erred, but I tend to resist the Amendment on the Report stage on the grounds that it would make no significant difference to the Bill.
§ LORD STOW HILL
My Lords, I moved this Amendment separately for that limited purpose, but if the noble and learned Lord feels that the change is not really desirable or helpful I do not press it. As the noble and learned Lord has suggested, there are other Amendments on the Order Paper which at first sight might be thought should be read with this Amendment. I desire to move them separately because they deal with a separate aspect of the clause, but perhaps I may leave that aspect until we come to it. I do not press this Amendment; it is simply a small change of language which, speaking for myself. I should have thought would make the clause easier to 753 read. In the circumstances, I beg leave to withdrawn the Amendment.
§ Amendment, by leave, withdrawn.
§ 8.39 p.m.
§ LORD STOW HILL moved Amendment No. 50B:
Page 21, line 33, at end insert—
(c) that the dismissal took place in circumstances which involved a conflict with any of the provisions of the Workers' Representatives Recommendation 1971 adopted by the General Conference of the International Labour Organisation in June, 1971,").
§ The noble Lord said: My Lords, I submit that this is an Amendment of considerable importance. Before explaining its purport, may I remind the House of the general purport of Clause 26. Previous clauses dealing with unfair dismissal have dealt with cases of dismissal for various reasons. This clause is limited to the case in which a worker is dismissed because he has taken part in a strike or in other irregular action short of a strike. Obviously, therefore, from its very nature it is a clause of considerable importance because it deals precisely with what is sometimes loosely referred to as "the right to strike".
The structure of the clause is this: if the reason for the dismissal of the complainant is that he took part in a strike, that is to be deemed to be an unfair dismissal if one of two things is shown. The first is that he was dismissed whereas others who were in exactly like case and who also took part in the strike were not dismissed, or that they were offered re-engagement and he was not. That is the first thing that has to be shown: in other words, that there was a srtike and that afterwards the complainant was not kept on (if I may use a neutral phrase) whereas others were. He had to go and they were allowed to stay. Prima facie that raises a case of unfair dismissal. But it is not enough by itself, because as the clause is drafted it goes on to provide that the dismissal is, nevertheless, not to be regarded as unfair unless something further is shown, and that further element in the proof is contained in the lines which follow from line 34. Broadly speaking, if I may summarise from line 34 to the top of page 22, line 1, that
requirement is as follows: it must be shown, in addition to the fact that he was dismissed and others were not, that the reason for his dismissal was that he was—and I quote
exercising, or indicating his intention to exercise, any of the rights conferred on him by section 5(1) of this Act:
§ Your Lordships will remember that Clause 5 is the clause which, subdivided under particular sub-headings, gives the worker the right to be a member of the union that he chooses, or the right to be a member of no union, and, in paragraph (c) of subsection (1), where he is a member of a trade union, the right to take part in the activities of the trade union. Therefore, before he can win his case it must be shown that he took part in a strike, that he was dismissed when others were not, and that the reason why he was dismissed and others were not was that he had carried out his intention of taking part in the activities of the union. That is what has to be shown. But the puzzle does not end there, because there is a proviso to that which has the following effect. Even if he can show that the reason for his being dismissed was his indication that he proposed to take part in the activities of the union, he does not succeed in his claim if the activities which he said that he wanted to take part in—I summarise again, and I hope accurately—really consisted in taking part in the strike after the strike had begun.
§ If that is approximately a summary of this really very complicated provision, I submit that it needs careful consideration. It means that a worker who has struck and has been dismissed will not be able to claim compensation for unfair dismissal if the fact is that he continued to be involved in and took part in the strike after it had begun. That is clearly penalising him for exercising what is loosely called his "right to strike". He renders himself liable to dismissal if he does not immediately desist when the strike begins. I submit that is the effect of the clause.
The Amendment which I am moving at the moment is Amendment 50B, which would seek to add to the paragraphs in subsection (2) of this clause a further provision, which would be that the worker succeeds in his claim that he was unfairly
dismissed if he can show (in the terms of the Amendment)
that the dismissal took place in circumstances which involved a conflict with any of the provisions of the Workers' Representatives Recommendation 1971 adopted by the General Conference of the International Labour Organisation in June 1971,
That is a document with a number of different articles, but I think it is sufficient to call your Lordships' attention to Article for this purpose. It reads:
Workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities of a workers' representative, or on union membership or participation in union activities in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.
§ I submit to the House that if I have summarised with approximate accuracy the content of this clause, it does conflict directly with that Article 1. It penalises a striker who continues to take part in the strike after it has begun. In other words, it offers a direct challenge to the right to participate in a strike. That is not one of the activities of the union, once the strike has begun, in which you may participate without jeopardising—and indeed putting an end to—your claim for compensation if you are dismissed as a result of engaging in the strike. As I have said, that involves a direct conflict with Article 1 of that recommendation. I submit that it is right on general priciple that when we, in this country, are framing a general code of industrial relations (as this Bill is intended to be) we should not so frame it as to run directly counter to this recommendation of the which, in my submission, impinges directly on the situation and is designed to safeguard precisely that right to strike as the clause as at present drafted intends.
§ My Lords, it might conduce to a saving of your Lordships' time if, with the agreement of the House, I refer to the content of Amendments 50C and 51, because they really both have the same effect. They leave out that part of the clause which contains the language which I have submitted to your Lordships is the offending language. If one leaves out from line 34 on page 21 to the top of the next page, one leaves out all those words to which I have referred and in consequence produces the result that the clause 756 as it would be left after the omission of those lines no longer offends against that I.L.O. recommendation. Even if it did not offend against the I.L.O. recommendation, I would submit to your Lordships that in any event that part of the clause should be left out. It is surely most unfair if, when you say that a striker may take part in a strike as part of his union's activities, you qualify that by saying that his participation must not continue in effect (if I may summarise) after the strike has begun. In my submission that is illogical and difficult to justify, but that is the effect of the clause, and I would submit that in any event those words should be deleted. But, technically, at the moment I am commending to your Lordships Amendment No. 50B, and for the reasons I have given I ask your Lordships to agree to it. I beg to move.
§ THE LORD CHANCELLOR
My Lords, the short answer to this amendment is that I am going, when the noble Lord moves it, if he does move it, to accept Amendment No. 51. Of course, if Amendment No. 50C were to be accepted (and I am not going to accept No. 50C) he would not be able to move No. 51, because it would have fallen. But my intention is to accept 51, but not 50B or 50C, and the reasons I may give later when the noble Lord moves No. 51.
§ LORD STOW HILL
My Lords, if the noble and learned Lord would permit me, would it be of help if I said I shall be very content to ask leave to withdraw No. 50B if the noble and learned Lord will advise the House that No. 51 should be accepted. The only caveat, if I may respectfully say so, is should it not be, with respect, No. 50C. Because if one does not accept No. 50C one leaves in the first three lines of subsection (3) which would seem not to have a very satisfactory effect. But I would be quite content, if the noble and learned Lord feels able to advise the House to accept No. 51, speaking for myself, to withdraw No. 50B.
§ THE LORD CHANCELLOR
My Lords, I do certainly say that I will accept No. 51, but I can only do it on condition that No. 50C is not moved, or not accepted if it is moved, because I am advised by the Table that if No. 50C were to be agreed No. 51 could not be moved.
§ LORD STOW HILL
My Lords, I hope the noble and learned Lord does not think I am being tiresome, but I am trying to help. I shall be perfectly content, if the noble and learned Lord feels able to advise the House to accept No. 51, to ask the leave of the House to withdraw No. 50B, and when No. 50C is called not to move it.
§ LORD STOW HILL
My Lords, in those circumstances, unless any other noble Lord wishes to intervene, may I beg leave to withdraw Amendment No. 50B.
§ Amendment, by leave, withdrawn.
§ 8.53 p.m.
§ LORD STOW HILL moved Amendment No. 51:
§ Page 21, line 42, leave out the proviso.
§ The noble Lord said: My Lords, I have deployed the reasons for this Amendment. If the proviso is left out I think the clause no longer offends against the I.L.O. recommendation to which I have already referred. I have already given my reasons for submitting to your Lordships that, even apart from the fact that the proviso offends against the recommendation, it is one which in any event on the merits is difficult to justify, and in my submission is not justifiable. I do not think I shall assist your Lordships by repeating the reasons. I beg to move.
§ THE LORD CHANCELLOR
My Lords, as I promised, I am going to accept this Amendment. We did re-examine this after the Committee stage, partly, admittedly, because of possible difficulty with the I.L.O. Convention, which was at that time very new, but not directly on that question, but on the merits. Our present Clause 26 is, we believe, considerably more liberal than the corresponding clause in the previous Government's Bill. But I came to the conclusion when I analysed it that the proviso would serve no useful purpose, and my advice to the House is to accept Amendment No. 51 without qualification.
§ LORD DELACOURT-SMITH
My Lords, might I ask the noble and learned Lord—and I am sure he would receive the leave of the House to do so—if he could comment on one or two matters? If it were in order for him to do so, perhaps he could indicate why he would have regarded Amendment No. 50C as unacceptable although he is advising the House to accept No. 51. Further, could he give a very firm assurance to the House that the clause, as it will stand with Amendment No. 51 in effect, will not in any way be in breach of the convention to which my noble friend has referred? The noble and learned Lord will appreciate that there are aspects of the convention which we may yet think it proper to draw attention to on later clauses, for example, when we come to questions of reinstatement after dismissal. But they do not arise at this stage, and the assurance I am asking for in respect of the I.L.O. Convention is limited solely to the subject-matter of the present Clause.
§ THE LORD CHANCELLOR
My Lords, to answer the question which the noble Lord, Lord Delacourt-Smith, has posed to me, and if I may speak again by leave of the House, I shall have to explain first of all why we originally put in the proviso in order to explain why we then took it out again. I should begin, therefore, by explaining why Clause 26 was formulated as it is. The unfair dismissal provisions are meant to safeguard individuals as such, and are not really appropriate to collective confrontations which are involved in either strike or lockout situations. We wish the unfair dismissal proposals to protect the rights of individuals, but to be neutral in what one might call industrial confrontations, either of the one category or the other.
Most strikes, of course, are settled on the basis of an agreement to avoid victimisation, and this is what we would wish to remain. An agreement on non-victimisation will, one hopes, be honoured by both sides who are parties to it, and this is what we would wish to encourage. The particular phraseology of Clause 26 applies to the minority of cases where this is not done. We have to have in mind two situations. The first is where, as part of the ritual of the 759 strike situation, the employer dismisses all the strikers, but as a way of putting pressure on them to come to the bargaining table; this is not affected by the Amendment. Secondly, we do not wish to handicap those employers who from time to time have dismissed persons they regard as irresponsible, and in respect of whom no non-victimisation agreement applies. We came to the conclusion that the proviso goes too far in seeking this second objective. The cross-reference in Clause 26 applies only to trade union activities which will be interpreted as taking part in the activities of a registered organisation. In view of the requirements as to registration, the activities of a registered union will be limited to what one might call the respectable activities in accordance with the rules of a union; the activities of a union would not include the activities of a group of, say, completely unofficial trouble makers.
Clause 26 in essence only enables employers to dismiss strike ringleaders without the risk of legal proceedings; it does not free them from the risk of industrial action jeopardising the settlement of the strike; and they are only likely to get that freedom to dismiss strike ringleaders with the co-operation of the trade union leadership. This is because, as I say, the ordinary end of the strike is a non-victimisation agreement. Under neither Bill, neither the Labour Bill nor ours, would employers who are found to have unfairly dismissed strikers for taking part in trade union activities during a strike have to face compulsory reinstatement, only compensation. Having reconsidered the question, I came to the conclusion, and so have the Government, that the proviso in subsection (3) should be withdrawn.
I would, however, stress that the Secretary of State, in deciding to omit the proviso, has come to that conclusion primarily on the merits of the case, and not as a result of any possible difficulty in regard to the I.L.O. Convention, although he is mindful of his international obligations and desires to maintain our excellent record in the ratification of International Labour Conventions. In reply to the other two questions put by the noble Lord, Lord Delacourt-Smith, I can only say that the advice that I have received is that 760 this is the only point at which we could be in possible breach of that Convention, and I found that an additional reason why we should accept Amendment No. 51, which removed that possibility. If there are, or can be, other situations in the course of the Bill to which the noble Lord wishes to draw my attention, I will of course consider them in that context.
§ LORD STOW HILL
My Lords, I only intervene to thank the noble and learned Lord for accepting that Amendment. I had myself independently examined the recommendation, in order to form a view on whether the clause conflicted with it in any sense apart from the proviso. I have arrived at the same conclusion as that which is indicated by the noble and learned Lord. The noble and learned Lord has been so good as to say that if both he and I are mistaken about that the matter can be reconsidered; but I hope we are both right, that with the removal of the proviso there is no contradiction of the recommendation.
§ Clause 27 [Excluded classes of employment]:
§ 9.2 p.m.
§ BARONESS WHITE moved Amendment No. 51A:
§ Page 22, line 18, leave out paragraph (a).
§ The noble Baroness said: My Lords, we did discuss this matter at an earlier stage and, as one would expect, had a most conciliatory answer from the noble Earl, Lord Jellicoe. Nevertheless, we thought that we should present this matter once more to your Lordships' attention, because we have received considerable pressure, especially on behalf of the agricultural workers, in this regard. The effect of the Amendment will be to leave out paragraph (1)(a) in Clause 27, which says that the safeguards against unfair dismissal (except in certain respects, which are referred to in what is now Clause 29) would be withheld where there are establishments with fewer than four employees who have been continuously employed for a period of not less than 13 weeks, and so on.
§ Any who have knowledge of farming at the present day will appreciate that the whole trend in British farming is to 761 reduce the number of men working on farms, and to replace them by machines. Therefore, there are a number of establishments in which there would be fewer workers, and they might not qualify under this proviso. The Agricultural Workers' Union have assured us that they are very anxious indeed about this. They are very well aware of the drive for greater productivity in agriculture, and they appreciate the reasons for it. It can cause hardship for some of their members who have to leave the land and change their employment, and this happens very often in areas where there may not be very much choice of other employment. This is a process which has been going on now for some years, and we think it is likely to continue.
§ They have put to us the situation which would arise when, at one point of time the workers would be protected, and then, because of a reduction in the labour force, they would be outside the protected category, and they think that this could lead to feelings of frustration and injustice. I do not pretend that we have had such strong representations from unions in other industries, but I know there are quite strong feelings about this matter in, for example, the distributive trades, where again the unit of employment in any one establishment can be quite small, and also in other service industries such as garages, and establishments of that kind.
§ One of the reasons why we are concerned about this is because it is precisely in such establishments that trade union organisation is apt to be at its weakest. In other words, the particular individuals, whose position may be just as deserving as those working with a larger labour force, are less likely to have the protection of their trade union organisation in these circumstances than those who work in larger establishments. It is for these reasons that we have put down this Amendment again because we appreciate, as the noble Earl said on the last occasion, that in the proposed legislation of the last Administration there was a limitation comparable with this one. We are also well aware that under what is now Clause 29 the Secretary of State is taking powers to add to, or vary, any of the provisions of Clauses 27 and 28 of the Bill, and we are fully apprised of this, and it is on the record.762
§ However, because we have had considerable pressure, particularly on behalf of the agricultural workers, we thought that it was only right to bring this yet again before your Lordships, so that there should be no doubt at all that we are concerned that everyone should have justice if his employer should dismiss him improperly, and that it should not be confined, at any rate for any length of time, to those who are working in the larger establishments. The ones in the small establishments are normally less well protected by their organisation, and they are in greater need of protection, not in less. Therefore, we think that we should take this very much into account. I beg to move.
§ 9.7 p.m.
My Lords, the noble Baroness very kindly said that I had spoken in a conciliatory vein when we discussed this—I suspect it was pretty early in the morning—at the Committee stage, and I should like to echo what she has said; I think she has put this Amendment in a very conciliatory and winning way.
§ BARONESS WHITE
My Lords, I am most obliged to the noble Earl. It was 7.10 a.m., and he was remarkably conciliatory for that hour.
My Lords, I am not certain whether it was my conciliatory nature or whether sheer weariness had affected me at that time, but I know that it was at a reasonably early hour of the morning. As the noble Baroness has explained, this Amendment would remove from the exclusions in Clause 27 employees in undertakings with fewer than four employees who had been continuously employed for 13 weeks or more. I think I explained at about 7 a.m. in mid-May what lay behind our feeling on this point. There are two main reasons why we feel it is right that Clause 27 should contain this exclusion. In the first place, this is really a question of the nature of the employment in the case of a very small concern such as a farm. One is there usually relying on very close personal and, indeed, intimate relations. Therefore, when there is a dismissal the circumstances usually turn on issues which may not lend themselves to a legal adjudication. If we were to include those cases, they would present 763 the tribunals with extraordinarily difficult problems of sorting out the rights and wrongs and of determining the right remedies; because in such cases the remedy of re-engagement would in many cases probably not be the right one. That is the first leg of the argument for the exclusion of the very small concern from the unfair dismissal provisions.
The second leg is a purely practical one. I explained this at Committee stage and perhaps we may come back to it on a subsequent Amendment. The exclusion of the very small concern would, to some extent, help to relieve the heavy case load which we anticipate is going to fall on the industrial tribunals. I do not wish to repeat the arguments and considerations which were in our minds at Committee stage and of which I know the noble and learned Lord, Lord Gardiner, is well aware. I will only summarise them here and say that, through independent research, we anticipate that unless we take some action to reduce the anticipated case load, the annual case load facing the industrial tribunals might be around 250,000 cases. That is our fear, as I think it was the fear of the previous Government, who, for this practical consideration among others, came to the same conclusion as we did on this question of what should be excluded and why it would be right to exclude the very small concern under Clause 27.
Then there is the question of the thirteen weeks. Perhaps I should touch on that, because it is a point which was introduced at Committee stage in regard to an Amendment which I think I moved myself. The underlying reason was that we felt it was right to exclude most casual or temporary seasonal workers from the aggregate, thus avoiding what would he an absurd anomaly, whereby a regular employee might be excluded from the unfair dismissal provisions for the greater part of the year, but could come within their scope for a very short period when the labour force was temporarily expanded by casual or seasonal labour. This happens in the agricultural field; for example, at the time of hop picking in Kent and in orchards and elsewhere. It would be absurd if regular employees in small concerns were able to pop in and pop out of the exclusion provisions, merely as a result of very temporary 764 and purely seasonal circumstances. Those are the considerations which we have had in mind and which underlie paragraph (a) which this Amendment seeks to delete. I suggest that they are valid reasons and I hope that your Lordships will accept them as valid, as I think they were accepted during the Committee stage. I hope that the noble Baroness will not wish to press this particular Amendment.
I would just add this, because it is something to which she herself alluded in moving her Amendment. I think we are right, and for the same reasons as I think the last Government, who had this particular provision in their draft Bill, were right. But if we are wrong, and if the last Government were wrong, in having this particular provision excluding the small concern, I would point out that there is the provision in subsection (2) of Clause 29, to which the noble Baroness referred, which will allow the Secretary of State to make variations in Clause 27 if he so thinks fit. I made it clear at Committee stage that my right honourable friend would not hesitate to use his powers under that particular subsection if he thought this was right and justified, and he would have in mind very much then the experience of the case-load of the tribunals as it works out in practice.
In summarising my argument, I would say that I think we are right here, but there is an escape clause if we find through experience that this is not so—and this is a matter on which I think we shall need much more experience than we have at the present time. If, through that experience, we find that we are wrong, then there is a way forward which will allow us to make the sort of change for which the noble Baroness is pressing in her Amendment.
§ 9.16 p.m.
§ LORD GARDINER
My Lords, the noble Earl knows that I am very ignorant about all this. May I just ask him: is the effect of this subsection, apart from the effect of any other subsection, that if a play runs for three months or for less than three months the manager has the right of unfair dismissal, but not if the play runs for more than three months? And, if so, does this not show that the Bill is not very well adapted to the theatrical profession?
My Lords, I hesitate to align myself with the theory that the noble and learned Lord is ignorant about this. But I should have thought it might depend on whether the play was Waiting for Godot, with a very small cast or a large cast.
§ BARONESS WHITE
My Lords, I think I should just say, in reply to the arguments put forward by the noble Earl, that the reason, as I understand it, why this exclusion was made in the draft Bill of the last Administration was because of the problem of the case-load and desire not to overload the tribunals, particularly in the initial stages and until one saw how it worked out. This was the reason for it, and that reason I think we would accept as convincing, particularly in the light of the provision that is made in Clause 29(2). I should, how-ever, like to put it on record on our behalf that the first leg of the noble Earl's argument does not appeal to us. Justice is justice wherever it occurs, and injustice is injustice; and the fact that it happens to be in a small establishment is no comfort whatever to the man who has been unjustly treated. So we really cannot accept that argument.
Let us be frank about it. Those who know something about country life know that the greatest injustice can sometimes take place precisely with the small employer and in conditions where it is very difficult for an employee to find other employment. If he is working in a large establishment he is much more likely to be in an area where there are other opportunities open to him. If he is in a small country town, or in the countryside, and particularly (if I may put it rather vulgarly) if his employer is in cahoots with other people, he may find it not at all easy to get another job, and so great injustice may be done. So I would not let it pass for one moment that we accept that part of the argument.
Also, I do not believe that it is beyond the wit of the tribunals to find out the truth. I do not think they would find it more difficult if there were only a few people concerned than if there were several hundred people concerned. Sometimes it is more difficult to find the truth when there is a large number of people concerned; and I am quite sure that any lawyer present would not say, if he were 766 in court, "I am sorry, but I cannot try this case because it concerns only four people instead of 500". So that argument, quite frankly, is one that does not appeal to us. But the practical one of the case-load on tribunals, especially, as we have indicated, in the earlier stages, when they will be feeling their way to some extent, I think we do accept. For that reason, having aired the matter again—because we attach importance to it—I do riot wish to press this particular Amendment, and I ask leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 9.20 p.m.
BARONESS WHITE moved Amendment No. 51B:
Page 22, line 40, leave out paragraph (f).
§ The noble Baroness said: My Lords, this is quite a different Amendment. This is to exclude paragraph (f) of Clause 27(1). This means that we would wish to bring within the purview of these provisions, that is to say, of possible appeal against unfair dismissal, those who are working less than 21 hours a week. Again we appreciate that this could add quite considerably to the case load. We are concerned with various groups of workers who we think could well be dismissed unfairly and ought to have some real redress. Our attention has been particularly drawn in this connection to the increasing number of contract cleaning workers, and I would draw the attention of the House to Report No. 168 of the National Board of Prices and Incomes, published in April of this year, on the pay and conditions in the contract cleaning trade where they estimate that there are now some 90,000 workers so employed, the greater majority of whom would be liable, at some period at any rate, to come under the exclusions in this clause.
§ Part-time workers are not easy to organise in trade unions. A great many of them, not all, are women. We have discussed in other clauses the difficulty of trade union organisation for these part-time workers. Once again we are dealing with groups of workers who may suffer injustice but who are less likely than full-time workers to have the protection of trade union organisation. We do not feel that the protection afforded to other workers should be withheld from workers in these circumstances. I do not wish 767 to repeat the argument: if you are unjustly dismissed, you are unjustly dismissed; and that rankles whether you are working for 18 hours or 22 hours a week. I think that this Amendment is something that we should press; because whereas we appreciated the practical difficulties in bringing in all the small establishments at the outset it seems to me that on this one, where you have quite a large body of workers on part-time work—and the Government are anxious to give them full rights in other connections where we thought that perhaps they were not so much deserved—the Government should at least be prepared to give them the full benefits of the protection afforded by this part of the Bill. I beg to move.
THE EARL OF BALFOUR
My Lords, one of the problems about these people employed for very short periods is the lack of standards, of knowing exactly what to pay them, of knowing what conditions they should be employed under and so on. Let us take the case of a typical country estate where people are employed in maintenance. The only yardstick that. I have to work on—and here I must speak from personal experience—is the Agricultural Wages Board. If it were not for that body I do not know where I would go for a standard. There are numbers of people employed in, say, school cleaning, the school meals service, cooking, and so on, for anything from 18½ to 27 hours a week. If it were not for the local authorities getting together with the various unions who cover local authority workers, what sort of standard would we have? Not one! I think the problem involved in bringing these people into the field of unfair dismissals is that their hours can be so irregular. The job may be so irregular, and I think it would be impossible, although I have sympathy for the Amendment, to include it in legislation.
§ 9.25 p.m.
My Lords, I do not feel that I should detain your Lordships long on this Amendment, if the noble Baroness, Lady White, as she half intimated, is proposing to press it to a Division whatever I say. I may, of course, have misunderstood her. Again my argument against this Amendment would be three-legged. The first leg is familiar to 768 your Lordships. The problem which we face is the size of the anticipated caseload on the tribunals. We are anxious to make this part of the Bill a success and that the tribunal should not be swamped in the initial stages. Therefore, like the last Government we fear to include in the provisions of the Bill—I will talk about the substantive merits in a moment—large categories which we feel would tend to swamp the industrial tribunals, at least in the initial stages of the operation of this Bill. I do not wish to lean unduly on that argument. The example given by the noble Baroness of the contract cleaners frightened me because she instanced the P.I.B. Report and the number involved of 90,000. I do not know how many people might be involved were the Amendment accepted. It might be a considerable additional case-load that we should be imposing on the tribunals. That is the practical leg of my argument.
There is the theoretical leg which the noble Baroness disputed when I advanced the same argument in resisting the last Amendment. We think there is a strong case on merit—apart from the practical grounds to which I have alluded—for excluding part-time employees who work fewer than 21 hours a week in a particular employment. It is our view that probably such part-timers do not rely on that employment for a substantial part of their livelihood, and it is questionable whether it would be right to bring the requirements of the unfair dismissal provisions to bear on relationships which may, in certain cases, be very tenuous. By her Amendment the noble Baroness is taking out paragraph (f) of Clause 27, but she is not substituting anything else. We say that 21 hours and under should be excluded, but she is not advancing any particular yardstick. So far as I can make out she is not saying it would be unreasonable to have a ceiling of 21 hours but that it might be reasonable if the figure were 19, 17, 13, 11 or 9. One may question whether one should trigger off the rather elaborate provisions of unfair dismissal at 21 hours, but I think it would be absurd to trigger them off on people who, however deserving, are in part-time employment for say only three hours a week. It seems to me that if your Lordships accepted the Amendment there would be no ceiling at all. Therefore, on these grounds, if on no other grounds, I cannot advise your Lordships to accept 769 the Amendment if the noble Baroness, who moved it in extremely winning terms presses it.
We are feeling our way in this particular area of the Bill. This is terra incognita to a certain extent, and I think there is a case for treading rather warily. I believe that we have it about right here. There are quite definite precedents. The 21-hour exclusion obtains both in the Contracts of Employment Act, 1963 and in the Redundancy Payments Act, 1965. I do not think it is in those Acts just by chance. This has been thought out and there are respectable precedents—the earlier Acts, and the Bill which was drafted for the last Government—but we have Clause 29(2) and, as I have said, the Secretary of State has made it absolutely clear—I was able to give this assurance to your Lordships—that, having got further experience, if he thinks it right and sensible to lower the ceilings of the exclusions, he will have no hesitation in doing so. On these three-legged grounds. I hone that the noble Baroness, having listened to the case I have deployed, which has become stronger to my mind as I have gone on, will not insist on the Amendment.
§ LORD BEAUMONT OF WHITLEY
My Lords, I think the point made by the noble Earl. Lord Jellicoe, that 21 hours has not been chosen just by chance, because it is repeated in a couple of statutes, may not necessarily be in itself a good one. What happens is that someone chooses an arbitrary time and this is regarded as a precedent and the more Bills that go through saying that it is a precedent, the greater the precedent becomes. Therefore I do not think there is anything magic about 21 hours. The noble Earl has not been able to produce a specific argument in favour of that figure. Nevertheless, the challenge which the noble Earl made to the noble Baroness, Lady White was a perfectly fair one. On the debate so far, the advice which I would give to my noble friends, if it came to a Division—and the noble Baroness said that it might come to a Division—would depend on whether she was able to produce an answer to his perfectly fair challenge on what she would put in place of 21 hours, and how she would justify that. 770 I think the Government ought to justify every single exclusion. As one noble Lord or noble Baroness on the Labour Benches said, it does not became any less an injustice because it is done to someone who does not work for very long. Nevertheless, I agree with the noble Earl, Lord Jellicoe, that it is probably necessary to protect the machinery of the Act from people who are working for only a very small number of hours a week. I agree that this right is important to every individual in every situation. Nevertheless, we are erection immense machinery in this Bill, and one has obviously to exclude a number of minor cases. When we come to the next Amendment I shall speak more about that. At the moment we are looking forward to hearing the noble Baroness's answer to the question as to where exactly she would put the exclusion and whether she proposes to put down an Amendment on Third Reading if, by chance, she manages to get this Amendment carried.
§ LORD GARDINER
My Lords, I hope that the noble Earl, Lord Jellicoe, did not think, when I asked a question, that I was seeking to be facetious. I am trying to see what the practical effect of this Bill will be on the members of the theatrical profession. Not the only, but certainly the main, benefit conferred on employees is the right not to be unfairly dismissed. Therefore people should not be excluded without some reason. Everybody in industry knows what the hours of work are—9 to 5, or whatever it may be. But has anybody ever seen a theatrical contract which specified the hours of work? They are for the run of the play. A normal play, with intervals, takes two and a half hours; six evening performances and one matinee come to 17½ hours, and two hours would make 20 hours. Again I only ask: has anybody ever applied his mind as to whether this subsection does or does not (one might have to include make-up time) exclude theatrical artistes from the right not to be unfairly dismissed? Or is this again just a case where it has never occurred to anybody?
§ BARONESS WHITE
My Lords, I am grateful to all noble Lords who have taken part in this brief discussion, and not least my noble and learned friend Lord Gardiner, who has indicated some 771 of the practical problems which arise from the Bill as now drafted. I think the noble Earl, Lord Jellicoe, and the noble Lord, Lord Beaumont, were quite right in indicating that perhaps we ought to have gone further in our Amendment than simply to try to exclude this paragraph. I agree that if one had no limit whatever, then the overloading of the machine would be almost inevitable. I think a good yardstick would be to leave out those who are not liable to pay insurance contributions on the ground that they are working too few hours—eight hours a week. That, I think, would be a reasonable limit. We cannot discuss it formally now, because we have not put down an Amendment in that sense, but that, I think, would bring in the kind of person about whom we are concerned and who is doing a substantial amount of work, even though not full-time. It would exclude those who are doing very brief casual work—mostly domestic work probably—and who could quite fairly, be regarded as people who, if they were included, would bring in numbers far too large, on the whole, in circumstances where possibly the provisions of the Bill might not be so important.
Having had this discussion, I think the best thing to do is to consider carefully the point quite fairly put by the noble Earl, Lord Jellicoe, and the noble Lord, Lord Beaumont, and to ask leave to withdraw the Amendment, on the understanding that we shall consider this between now and Third Reading, and put down a further Amendment, possibly on the lines that I have suggested; but I shall have to consult with my noble friends. I beg leave to withdraw the Amendment.
My Lords, if I may have your Lordships' leave to speak again before the noble Baroness withdraws her Amendment—and I am grateful to her for the reply—I, too, should like to avail myself of the opportunity to consider the point made by the noble and learned Lord, Lord Gardiner.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Exclusion of certain contracts for a fixed term]:
§ 9.38 p.m.
§ LORD BEAUMONT OF WHITLEY moved Amendment No. 52:772
§ Page 23, line 19, leave out ("104") and insert ("52").
§ The noble Lord said: My Lords, I beg to move Amendment No. 52 standing in the name of my noble friends Lord Byers and Lord Henley, and myself. The debate appears to have reached the stage of errors which it had reached at exactly the same point in the Committee stage. The noble and learned Lord the Lord Chancellor has gone, but why I moved before I made my speech was that I was in great danger of getting into a situation that a number of your Lordships got into, of making a very moving speech, with a terrific peroration, and the noble and learned Lord then saying: "Does the noble Lord move the Amendment?". Well, I have moved it at the beginning, which gives me considerable liberty.
§ Quite frankly, at 7.15 a.m. that morning we were not in very good order. The noble Lord, Lord Hoy, moved the Amendment at the time and the quotations I am going to make from our OFFICIAL REPORT for May 13, column 1500 et seq., speak for themselves. The noble Lord moved to leave out the whole of this particular part of the Bill which excludes people from the "unfair dismissal" arrangements if they have less than 104 weeks' service. The noble Earl, Lord Jellicoe, told us very fully and frankly the reason for this provision. He said that Clause 26 (which is now the present clause we are dealing with) was not one of his favourite clauses in the Bill; and he went on to explain that the Government administratively would want to move on from these particular exclusions to far less rigid ones. He told us there were something like, so far as his independent investigators could discover, 250,000 cases a year which could come under these particular provisions and give rise to appeals against unfair dismissal. That is a tremendous number, and one sees that even if the industrial tribunals are expanded as quickly as they should be and as indeed the Government have told us will happen, this would overload the machinery tremendously.
The proceedings had got to the stage at that moment that even the noble Lord, Lord Stow Hill, who is generally an absolute stickler for accuracy, misheard the number and put it at 450,000. We got it down again to 250,000 and then
reached the stage where the noble Earl, Lord Jellicoe, said:
I said that independent research indicated that there may be in a year anything up to 250,000, but independent research has also shown that something like 80 per cent. of those cases might fall within the first two years."—[OFFICIAL RIPORT, 13/5/71; col. 1504.]
§ It was not only at 7.15 a.m. that morning that I was unable to understand that statement: I was unable to understand it for quite a bit afterwards. I concede to the noble Earl that I was probably being exceedingly stupid and I now realise that what he meant was that about 80 per cent. of the 250,000 cases occur to employees who have been employed for less than two years, but it did not actually read or sound like that at the time.
My Lords, I must apologise to the noble Lord. I should like to make it clear that he has interpreted my views which, in view of the advanced hour of our debate then, I had necessarily compressed. I had thought that the Committee would immediately have realised what I was after, but I was using "shorthand" for that particular reason.
§ LORD BEAUMONT OF WHITLEY
My Lords, I am grateful to the noble Earl. I am glad that we now have this absolutely right. I entirely take the point which the noble Earl the Leader of the House makes about overloading the tribunals. On the other hand, these are terrifying things—250,000 a year coming under the unfair dismissals appeal machinery—and the fact that 80 per cent. of them may be excluded does not mean that I particularly wish to make this exclusion. We have every right to ask the noble Lord, the Leader of the House, to say what would, for instance, be the result of making the exclusion eighteen months or a year. How much would one overload the machinery in that way? How does this 80 per cent. break down in lesser periods?
The Government have taken on the tremendous responsibility of putting this Bill forward. On the whole, we on these Benches think it is basically a constructive Bill, although not nearly so forward-looking as it should be. We also think 774 that the Government should take the responsibility for the full results of what they are putting forward. In this case if they are really saying that to start with and, presumably, for the foreseeable future (although they have made reasonable pledges about reductions in these conditions in the future) they will not be able to cope with more than 20 per cent. of the cases which they themselves say will come under the unfair dismissal clause, we have a right to say to them that they must do better than this. This was our attitude on the Committee stage. Here I have to confess to the absolute nadir so far as I am concerned that we reached on that particular morning.
The Labour Front Benches moved an Amendment to do away with the exclusion, and the argument against overloading the tribunals was put forward by the noble Earl, Lord Jellicoe. At that moment I heard a discussion on the Labour Front Bench, when the noble Lord the Leader of the Opposition said. "Shall we go along with the Liberals?". At that moment we had also put forward exactly the same Amendment, which I must confess I did not move. I did not take the hint from the whisper on the Front Bench because I was so weak that I could not even get to my feet and say, "I beg to move the Amendment". We are now at a more reasonable hour of the night, and we have had time to digest the various discussions put forward on the Committee stage, and that is why we have put forward this Amendment again.
May I say one word to the Labour Party Front Bench about their next Amendment, No. 53? Whereas if our Amendment is defeated I advise my noble friends to support the Labour Party's Amendment, nevertheless I seriously think that unless we get a very good answer from the Conservative Front Bench our Amendment is the better one. In their Amendment No. 53 the Labour Party are setting forth an enormous number of problems to an Industrial Court or tribunal. It is better than nothing but (and I hope they will forgive me for the phrase) I regard this as a mucky Amendment. It is very vague indeed. If we are not supported, and if the Government do not give way to us, I would invite my noble friends to support the 775 Labour Party's Amendment because we must have some move in this direction.
I am sorry if I have detained your Lordships over long on this matter, but I should like to pose this question again: what would be the result to this 80 per cent. that we are told about of cutting the 104 weeks by half? What would be the result of cutting it by a quarter? There is presumably some kind of curve of cases on the time scale and I should like more information about it. We have another stage in front of us, Third Reading. We should like more information than the Government have been able to produce, although I had every sympathy with them at 7.15 on that Friday morning. I beg to move.
§ 9.50 p.m.
My Lords, I think that, with one possible exception, the shorthand answer on the two years which the noble Lord mentioned is this. I think he was being a little less than fair to your Lordships in putting it forward at 7 o'clock in the morning. I am not addicted to my own speeches, but I have just read the speech which I made on this Amendment on Committee stage, and it seemed to me everything a speech should be so far as clarity and cogency are concerned—I speak with my usual modesty but I realise we were debating this very early in the morning and it is right that we should come back to it. The noble Lord asked me a perfectly reasonable and pertinent question. The figure of 80 per cent. is one of the fruits of that independent research which we did—or rather which the last Government did, and we saw the fruits of that research. The estimate was that something like 80 per cent. of the anticipated case load of 250,000 might be excluded by the initial ceiling of 52 weeks. I am speaking in shorthand, but I think the noble Lord knows what I mean. My understanding is that if that ceiling were reduced to the one year it becomes under the noble Lord's Amendment, the estimate of 80 per cent. would fall to something like 70 per cent.
Precisely; I meant 104. I was wrong by a factor of two—that was all. It is 80 per cent. at 104 776 weeks, 70 per cent. at 52. I do not know what it is between 52 and 104, but I suspect that it must be something over 75 per cent. It seems to me from the shape of the curve that it must rise steeply in the first year. But if and when we come back to this matter I shall be glad to elaborate on this, and I think it might be helpful to noble Lords interested in this matter of the case load if I circulated the further figures on it. I think I could make these available. All I can do is to repeat what I said before, that the only reason why we wish to adhere to the 104 weeks is the purely practical one of case load.
The noble Lord referred to the assurance by my right honourable friend, which I was empowered—rather more; I was specifically asked—to give to your Lordships, and which the noble Lord described as reasonable. I think that it was rather more than reasonable, because I put it advisedly in the strongest possible terms, as my right honourable friend asked me to do so. If I may refer to it, I should like to do. I quote from Hansard of May 14, column 1497.I should like to make it very clear here and now that it is my right honourable friend's firm intention to institute a review of the operation of the unfair dismissals machinery at an early date. He wishes to do so as soon as it has developed far enough in order for us all to form a judgment on its ability to cope with a bigger through-put, and as soon as there is a possibility of invoking Clause 27 "—that is now Clause 29—I can give your Lordships a very firm assurance indeed that my right honourable friend will not hesitate to do so,…My Lords, that was more than a reasonable assurance—it was, I suggest, a cast-iron and watertight assurance from my right honourable friend, and I am glad to repeat that assurance.
§ LORD DIAMOND
My Lords, is not the noble Earl getting into dangerous territory in talking about cast-iron and watertight assurances in this House?
My Lords, I would say "touché". I can only reply to the noble Lord that it was a deliberately mixed metaphor applicable to both dry land and the sea. My Lords, I should like to repeat that assurance because it was not lightly given and I was specifically asked by my right honourable friend 777 to give it. I should like to repeat that in principle I have absolutely no objection to this Amendment. I, too, should like to see 104 become 52. I do not believe that there is anything sacrosanct about 52; I think it could well come down. I am certain that my right honourable friend would like to see the ceiling lowered, but there is the purely practical consideration of fears about the case-load which we anticipate. As the noble Lord said, this is a rather terrifying figure. I do not think we need take the figure as sacrosanct.
When we begin to operate the Bill we may find that our independent researches have thrown up a higher figure than we are likely to be faced with. In any case, it is my right honourable friend's intention, and the Government's intention, to extend the network of tribunals and their coverage as rapidly as posible. I would hope, as that machinery gets into operation, that their own throughput would be quicker. It is also our hope that the actual case-load will fall because of the voluntary procedures under a subsequent clause which will become more and more popular, and that, as a result, this will lighten the case load. If all these things do in fact come to pass, I am quite certain that my right honourable friend will use his powers under Clause 29(2) to reduce that ceiling as rapidly as possible.
Having said that, I would add that, for very much the same reasons as the last Government had in mind, I think it would be quite wrong for us, from all we know or all we can at the moment guess about the likely case-load, to impose a burden on the industrial tribunal machinery which might well break it at the outset. I suggest that your Lordships should be very careful indeed about accepting an Amendment with the principle of which I am entirely in agreement but which could have that result. My Lords, I cannot say any more than that. I am merely basing myself on such independent research as we have and upon a desire not to impose a greater burden on the machinery than I fear it might be able to bear. At the same time I am in full sympathy with the thought behind the noble Lord's Amendment, and I hope that he will not wish to press it. That is all I can say.
§ LORD BERNSTEIN
My Lords, it is rather sad that legislation should be based, even in one detail, on somebody's independent market research. I accept that market research has some place in modern life, but I still think that market research must be subject to the acid test that comes from a cold look by sensible and experienced people. I had hoped that the noble Earl was going to say that he was opposing the Amendment on grounds other than market research. You have an independent market research—independent of whom, I do not know, but we assume independent of the last Government and this Government—and on this basis a clause is introduced into the Bill which over a period of time could be very damaging to a great number of people.
§ 10.1 p.m.
§ BARONESS WHITE
My Lords, I fully accept what my noble friend Lord Bernstein has said about not being utterly wedded to market research. But, even if we accept the report, if I understood the noble Earl aright, what he said was that 80 per cent. would be included if we had the limit of 104, and 70 per cent. would be included if we had the limit of 52. In other words, there is only 10 per cent. between these two. When we were discussing this matter on a Labour Party Amendment in the earlier stages we wanted to eliminate this provision altogether. But, again one sees the practical problems. It seemed to me, quite frankly, that the Amendment was a fair and sensible compromise. I was reinforced in that belief by what I understood to be the information given us by the noble Earl; namely, that if the first year was brought in—in other words, if there were no limits; you did not have 52 in substitution for 104—then one might have a very, very heavy case load. But the difference between 52 and 104 is of the order of only 10 per cent. This really is not quite the picture which the noble Earl painted for us.
It seems to me that the Liberal Amendment is a sensible one. I know we have a later Amendment which my noble friend may or may not move according to what happens to this one. Again, I do not know whether the noble Lord, Lord Beaumont of Whitley, is going to press his Amendment. If he were to do so I would certainly hope that 779 my noble friends might support him, because, as I say, his Amendment seems to me quite a sensible compromise. The noble Earl has said there is no matter of principle in it; he accepts the principle. On the grounds of practicality, it seems to me that for that 10 per cent. we might come down on the Liberal side of the fence for once, because 10 per cent. is not going to make or break the machinery. It would be an extension of justice and we would then, for the time being at any rate, until the machinery had been running for some time, save the tribunals from the 70 per cent., which we are informed would be likely to arise if one had no limitation at all in the first year. In those circumstances, should the noble Lord, Lord Beaumont, wish to press his Amendment, as I say I hope my noble friends might be prepared to go with him.
§ LORD BEAUMONT OF WHITLEY
My Lords, I do not think I need to reply to the debate at length because the noble Baroness has made the real point which comes from those figures which the noble Earl, Lord Jellicoe, has given us. At one moment I felt hopeful that Lord Jellicoe was going to give way to us, so much did his argument appear to give credit to our arguments and so charming was his delivery. But it was not to be. He was adamant at the end.
I would make it quite clear that we on this side of the House do not underrate the problem. I am quite aware that if we reduce the case-load of cases from 80 per cent. to 70 per cent. we are actually putting up by 50 per cent. the number of cases which will be dealt with; I entirely take this point. If the independent research is right, the number will increase, presumably, from 50,000 to 75,000. But I still think that for the gain, possibly even for just the psychological gain which people will feel in security after a year, instead of security after two years—and the gap between one year and two years is not just a year, but is psychologically considerably more than that—it is worth reducing this. I hope that the Government, who are obviously not going to give way at this stage—
§ LORD BEAUMONT OF WHITLEY
Maybe they will; I hope they will. 780 However, I hope that the Government will take this away and think about it again. But since they have not given much thought to it at the moment I must ask your Lordships to decide, as a good prod to them to bring something back at Third Reading.
§ LORD DIAMOND
My Lords, I am sure the noble Lord, and indeed my noble friend, would much prefer the noble Earl to do what his natural liberal tendencies encourage him to do—namely, to begin by erring on the side of generosity. There are provisions for adjusting the matter, should it transpire that the administration argument was a solid one. What we are saying at the moment is that it does not appear to be a sufficiently solid argument to put against the other arguments, which are very substantial indeed.
As the noble Lord has made absolutely clear, it is not a question of only 52 weeks; it is a question not of degree but of kind when one comes to divide those two. All I say to the noble Earl, Lord Jellicoe is that he seems to me to be so anxious to meet what I hope I can say are the feelings of the House on this, that he has said he is prepared to think about it again. There are certain technical difficulties about thinking about too many things again, as we are now getting on in our consideration of the Bill. Would he not be willing to accept this Amendment to the Bill now, knowing that he if he errs on the side of generosity the matter can be brought under control almost, to quote Ovid (or was it Thucydides?) who said "at a stroke".
This is a purely practical point and I should like to be able to meet the noble Lord, Lord Beaumont, and the noble Lord, Lord Diamond, who have pressed me in the most agreeable way. But I should point out the practical considerations involved. It is quite true that it is a matter of simple mathematics to cut the 104 weeks by half; that, which we would all agree, would cut the anticipated case-load only by 10 per cent. But the noble Lord, Lord Beaumont, was quite right; with computer-like speed and accuracy he immediately realised that that would increase the anticipated case-load by something like 50 per cent. falling to be heard by the tribunal. However, the point I 781 should like to dwell on is that 10 per cent. of 250,000 is 25,000; and 25,000 more cases would, so I am informed, require anything from 50 to 60 more tribunals with full time and legally qualified chairmen. That is my understanding and my best advice at the present time. I think that is a very exigent requirement indeed.
The noble Lord, Lord Diamond, has pressed me to exercise my usual liberal judgment on this matter—and I am quite happy to have the small "1" as a prefix to my Conservative views; but at the same time I should also like to have a little "p" attached to those views, which is the word "practical".
I really think if I had to form a snap judgment like this (which is what the noble Lords, Lord Beaumont and Lord Diamond, are asking me to do) I would
§ err—and here I am not speaking from my brief; I am exercising my own independent judgment—on the safe side, because I think it is important that the tribunal should make a good start and should not be overwhelmed at the beginning. Because I am being asked to exercise that judgment I must, with regret—because I am in great sympathy with everything that lies behind what the noble Lord,, opposite have been pressing me to do—say that I could not advise noble Lords to accept this Amendment if, perchance, the noble Lord, Lord Beaumont, insists on pressing it to a Division.
§ 10.10 p.m.
§ On Question, Whether the said Amendment (No. 52) shall be agreed to?
§ Their Lordships divided: Contents, 20; Not-Contents, 62.781
|Ardwick, L.||Champion, L.||Rusholme, L.|
|Beaumont of Whitley, L. [Teller.]||Delacourt-Smith, L.||St. Davids, V.|
|Diamond, L.||Shackleton, L.|
|Bernstein, L.||Garnsworthy, L.||Stow Hill, L.|
|Beswick, L.||Henley, L.||Wade, L. [Teller.]|
|Brockway, L.||Hoy, L.||White, Bs.|
|Byers, L.||Hughes, L.||Wynne-Jones, L.|
|Aberdare, L.||Dundee, E.||Mowbray and Stourton, L.|
|Ailwyn, L.||Elliot of Harwood, Bs.||Nugent of Guildford, L.|
|Allerton, L.||Exeter, M.||Oakshott, L.|
|Balfour, E.||Falkland, V.||O'Neill of the Maine, L.|
|Belhaven and Stenton, L.||Ferrers, E.||Orr-Ewing, L.|
|Berkeley, Bs.||Goschen, V. [Teller.]||Rankeillour, L.|
|Bessborough, E.||Gray, L.||Ruthven of Freeland, Ly.|
|Brabazon of Tara, L.||Hailes, L.||St. Aldwyn, E.|
|Bradford, E.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||St. Helens, L.|
|Bridgeman, V.||St. Just, L.|
|Brooke of Ystradfellte, Bs.||Hatherton, L.||Sandford, L.|
|Buccleuch and Queensberry, D.||Jellicoe, E. (L. Privy Seal.)||Selkirk, E.|
|Carrington, L.||Kemsley, V.||Selsdon, L.|
|Conesford, L.||Kilmany, L.||Sinclair of Cleeve, L.|
|Craigavon, V.||Kinnoull, E.||Skelmersdale, L.|
|Craigmyle, L.||Latymer, L.||Terrington, L.|
|Crathorne, L.||Lauderdale, E.||Thomas, L.|
|Daventry, V.||Lothian, M.||Tweedsmuir, L.|
|De L'Isle, V.||Macleod of Borve, Bs.||Tweedsmuir of Belhelvie, Bs.|
|Denham, L. [Teller.]||Macpherson of Drumochter, L.||Wakefield of Kendal, L.|
|Drumalbyn, L.||Monck, V.||Windlesham, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ 10.18 p.m.
§ LORD STOW HILL moved Amendment No. 53:
Page 23, line 26, at end insert—
(" (2) For the purposes of sub-paragraph (a) of subsection (1) of this section, the Industrial Court or an Industrial tribunal before which proceedings are brought by an employee on a complaint that he has been unfairly dismissed from any employment may treat the employee as having been continuously employed for a period of not less than 104 weeks ending with the effective date of termination if in all the circumstances it seems to the Court or tribunal as the case may be, just and equitable so to do and the employee has been employed in that employment for riot less than 80 weeks whether continuously or otherwise.")
§ The noble Lord said: My Lords, I apologise for reverting on Report to an Amendment in similar terms which I moved on Committee, and I will, if I may, move this one quite shortly, and I will indicate the reason why I ask your Lordships' indulgence to look at it again on Report. What it purports to do is as follows. If an employee claims compensation on the basis that he has been unfairly dismissed, we have just been discussing a situation in which he has to show that he has been employed continuously for not less than 104 weeks up to the date of the termination of his employment. If one looks at Clause 150 of the Bill, one finds there set out how one is to determine whether employment has been continuous or not.
§ Clause 150 refers one to the Schedule to the Contracts of Employment Act 1963, and one is directed to answer the question whether employment has been continuous in accordance with the provisions of that Schedule, and any order there may be, which I think cannot have effect in this case, under Section 7 of that Act. Prima facie, without further examination, that might seem to be a satisfactory resolution of the position; if an employee comes before an industrial tribunal, and a question arises whether his employment has been continuous or not, one looks at the Schedule to the 1963 Act and one finds the answer.
§ The only difficulty is that the answer provided by that Schedule is not a very satisfactory one, for this reason. If I understand it correctly and it is contained in this enormous volume (which I 784 do not propose to read in full), if the employee, in the course of the period about which you are inquiring whether it was continuous employment or not, has taken part in a strike, if that strike has caused a cessation of work, even for a short time, his employment becomes discontinuous. Equally, if I understand the Schedule correctly, even if the strike has not resulted in an actual cessation of the employment, nevertheless if he has struck in breach of the terms of his employment—that is to say without giving the appropriate notice—that also results in a discontinuance of his employment.
§ There are other situations described in the Schedule which involve a discontinuance of the employment. However, for these purposes I think that is the most important one; namely, the one which consists in a cessation owing to a strike or, in the alternative, a strike in breach of the terms of a contract of employment. I submit that is not a really very satisfactory position in which to leave the matter. If an employee exercises his right to strike, particularly if he has given the due notice, then if there is a cessation that should not produce the result that he is not enabled to say that his employment has been continuous. What the Amendment purports to do is to give the tribunal before which the case comes, a discretion; the discretion of being able to say that, notwithstanding the fact that the employee could not show that his employment had been continuous for the necessary number of weeks, nevertheless if he had been in the employment of the particular employer for not less than 80 weeks, if it were just and equitable in all the circumstances the tribunal could treat him as if he had had continuous employment for the necessary period.
§ That is simply what the Amendment does. I suggest it to the House as being something that should form a permanent feature of Clause 28. That is to say, it should be applicable, whatever the period named in the clause is; whether it is 104 weeks, or something less, or something more. I say "something less, or something more" because under Clause 29 the Secretary of State has power either to increase it or decrease it. As I read that clause, he would not have the power 785 to change Clause 150, or to change the Schedule to the 1963 Act, but he could always change the figures. Therefore, if there is a build-up of cases before the Court and I recognise the problem that was discussed on the last Amendment, and obviously it is a serious practical problem the Secretary of State could, under the provisions of Clause 29, either enlarge or abbreviate the 104 weeks, and equally enlarge or abbreviate the period of 80 weeks during which the employee must have been in the employ of that employer.
§ I submit that it is desirable in principle to give the tribunal some discretion, for example, in those strike cases; but there would be a number of other cases in which his discretion might have to be exercised despite the provisions of Schedule 1 to the 1963 Act. There might have been a difference of opinion between the worker and his employer; a dispute, friction, anything of the sort, which might have resulted in the employee having left his employment for a very short period of time in circumstances in which the tribunal could, and ought to, come to the conclusion that it would be just and equitable to overlook that break in the employment.
§ Otherwise, really unfortunate positions might result. A man might have been in employment for 20 years, and if some break of that sort happens in the last 104 weeks he cannot claim his compensation for unfair dismissal under Clause 24. That would be a very unfair situation in which to leave an employee, and I hope the House will say that, whatever figure is fixed upon—whether it be 104 weeks or 52 weeks—by the Secretary of State hereafter under the provisions of Clause 29, there should be as a permanent feature in Clause 28 this discretion which I seek to outline in this Amendment. My Lords, I beg to move.
§ 10.26 p.m.
My Lords, the noble Lord has expressed his concern about the position of certain employees who have worked for an employer over a 104-week period, but who have suffered breaks in their employment for one reason or another. I understand his concern about 786 this matter, and I should like to explain how, in my view, the Bill makes reasonable provision for those cases most likely to excite the sympathy of your Lordships which are likely to fall within the provisions of the Bill as drafted. The noble Lord has directed our attention to Clause 150 and, although this matter was ventilated in Committee, I should like to dwell on two points in reply.
In the first place—and the noble Lord did not in any way gloss over this—I should like to draw attention to the fact that subsection (2) of Clause 150 provides thata person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous.Thus, where an employee who has suffered a very short break in his employment during the 104-week period makes a complaint of unfair dismissal, his employment will normally be held to have been continuous unless his ex-employer successfully challenges his eligibility to claim. Secondly and, again, the noble Lord did not gloss over this; he referred to the large volume beside him which I must confess I have not read in full—the clause provides that the provisions of Schedule 1 to the Contracts of Employment Act 1963 shall apply for the purposes of this Bill in determining the period for which the employee may be held to have been continuously employed. That Schedule incorporates detailed provisions for this purpose.
I do not wish to weary the House, any more than did the noble Lord, Lord Stow Hill, with an overlong recital of that. But, putting it as briefly as I can, the Schedule describes various circumstances in which a contract of employment will be regarded as continuing; for example, where an employee has a continuous contract of employment involving employment for 21 hours a week and, in some cases, where he works for less than 21 hours. It also instances spells of absence through sickness, temporary lay-offs and so on. These do not break continuity for so long as the contract continues. This position, as I understand it, is totally safeguarded under the Bill because of the applicability of Schedule 1.
My Lords, we consider that Schedule 1 to the Contracts of Employment Act 787 makes reasonable and adequate provision to safeguard the continuity of the employment of employees in all reasonable circumstances, and that it provides a reasonable basis for calculating continuity in relation to the clause which we are discussing, Clause 28(a). Although I have listened carefully to the noble Lord, Lord Stow Hill, I cannot in the present state of our discussion really advise your Lordships to accept this Amendment. It would, again, have the effect—it might be fairly marginal in this case; I am not quite certain—of reducing the qualifying period and thereby helping to overload the tribunals. But I believe—and this is the main burden of my argument that Schedule 1 to the Contracts of Employment Act, which is specifically made to apply by Clause 150, provides a very reasonable safeguard for almost all the situations which are likely to confront the tribunals.
§ LORD STOW HILL
My Lords, I do not want to prolong the discussion, hut, with very great respect to the noble Earl, I submit that the Schedule is really not satisfactory. The noble Earl referred to cessation of work. Subsection (3) of Clause 5 specifically says that that shall not apply to a temporary cessation of work on account of a strike in which an employee takes part. That is one obvious fallacy. It does not apply to the case where an employee and his employer have a difference and the employee walks out for a day, or something of that sort.
The noble Earl also referred to subsection (2) of Clause 150, which I certainly had in mind. That says:For the purposes of any proceedings under this Act a person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous.I should have thought that that could have practically no effect. An employee goes before the tribunal, and the first question he is asked is, "Have you worked continuously for 104 weeks?" and he says, "Six months ago I had a bit of a row and I walked out". He is asked, "How long were you out?" and he says, "I was out for half a day, then I thought better of it and I came back". That immediately destroys the presumption. The presumption does not work 788 there because the plain evidence before the tribunal is that there was a cessation, that there was an interruption. Therefore, the presumption has no effect.
I should have thought that the presumption provision might just as well be taken out of the Bill. All it means is that if neither side knows, the presumption is that work has been continuous. If the employee has a very bad lapse of memory and cannot remember, then the presumption is in his favour. But it really has no effect. However, the Government have obviously considered this and have obviously taken a view against it. I would be grateful if the noble Earl could give the matter some further thought because I think that justice requires something of this sort; but, obviously, there would be no advantage in asking your Lordships to divide upon it in view of the stance that the Government have taken. Therefore, unless any other noble Lord wishes to contribute to the debate, I think the best course I can adopt is to ask your Lordships' permission to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 32 [Revocation of exclusion under section 31]:
§ 10.35 p.m.
§ EARL JELLICOE moved Amendment No. 54:
§ Page 25, line 26, after ("effect") insert ("and shall have an extended time for presenting a complaint under Part VI of this Act in respect of a dismissal where the effective date of termination falls within that period").
§ The noble Earl said: My Lords, I should like to suggest that it might be for the convenience of your Lordships to take this Amendment and Amendment No. 55, which is linked with it, together. I should like to start the few words I am going to say on these two Amendments with an apology.
§ These Amendments are, in fact, consequential upon Amendments being proposed to paragraph 5 of Schedule 6 of the Bill. Those Amendments are not yet before your Lordships' House. I realise that this is rather unsatisfactory and I should like straightforwardly to say that I am sorry that this is the position. But as noble Lords know, for one reason 789 or another we had a week less between the Committee stage and the Report stage and this has not made things easy; there have been practical difficulties involved. I should like to say that the blame rests on me and not upon the very hard pressed officials.
§ Having said that, I must give the House a preview of what those Amendments will be because otherwise these Amendments are meaningless. I think that they are very virtuous. I do not think that noble Lords opposite will dissent from their purport. The Amendments which we shall be proposing to paragraph 5 of Schedule 6 will provide that, instead of having a broad discretion to extend the time limit for making complaints under Clause 106 "for special reasons", the tribunals will have to be satisfied that in the circumstances it was not practicable for the complaint to be presented before the end of the four-week period. Therefore, the issue wil be confined simply to one of practicalities. Regulations made under paragraph 5 of the Schedule will be made subject to any order made by the Industrial Court under Clause 32.
§ The Amendments to Clause 32 which we are now discussing are designed to accord by providing that an order under that clause may direct that employees dismissed during the transitional period prior to the date of the order shall have an extension of the time limit for making a complaint under Clause 106 and that the tribunals shall comply with such directions. These Amendments, therefore, linked with the Amendments which will be shortly before the House (if they are not so already), ensure that the employee's right of appeal against unfair dismissal is fully preserved when an exempted voluntary procedure breaks down and ceases to provide a satisfactory alternative to the statutory machinery. I am sure that this is something which will commend itself to noble Lords on all sides of the House. I think it is clearly to the advantage of the employee who is likely to be affected in this way. I should like to commend these two linked Amendments to the House, coupled with an apology that they have not been made more intelligible by the Amendments which they are designed to bite on being also provided at the same time. I beg to move.790
§ LORD DELACOURT-SMITH
My Lords, we are grateful to the noble Earl for explaining these Amendments, Needless to say, we fully accept the explanation that lie has offered of the rather unusual circumstances in which these Amendments appear. We accept the intention behind them and we should not wish to quarrel with it; although we shall want to look at the provisions of the Amendments to the Schedule when they are before the House.
My Lords, may I say that if, when noble Lords opposite have the substantive Amendments before them, they wish to quarrel with these Amendments, I should not in any way hold their acceptance at this stage against them.
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 25, line 36, leave out from beginning to ("shall") in line 39 and insert ("a complaint to which those provisions apply")—(Earl Jellicoe.)
§ On Question, Amendment agreed to.
§ Clause 33 [Pressure on employer to infringe rights of workers]:
§ THE LORD CHANCELLOR
My Lords, this Amendment is consequential on Amendment No. 48. I beg to move Amendment No. 56.
§ Amendment moved—
§ Page 26, line 1, leave out ("good reason") and insert ("reason fulfilling the requirements of section 24(1)(b) of this Act").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 26, line 21, at beginning insert ("knowingly").—(Lord Gardiner.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 26, line 28, at beginning insert ("knowingly").—(Lord Gardiner.)
§ On Question, Amendment agreed to.791
§ Amendment moved—
§ Page 26, line 30, at end insert ("knowingly").—(Lord Gardiner.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 26, line 34, at beginning insert (" knowingly ").—(Lord Gardiner.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 26, line 37, at beginning insert (" knowingly ").—(Lord Gardiner.)
§ On Question, Amendment agreed to.