HL Deb 20 January 1997 vol 577 cc453-8

7.50 p.m.

Lord Monkswell

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Monkswell.)

On Question, Motion agreed to. House in Committee accordingly.

[The VISCOUNT ALLENBY OF MEGIDDO in the Chair.]

Clause 1 [Right to dignity at work]:

Lord Monkswell moved Amendment No. 1: Page 1, line 9, leave out subsection (2) and insert— ("(2) Subject to section 5 of this Act, an employer commits a breach of the right to dignity at work of an employee if that employee suffers during his employment with the employer harassment or bullying or any act, omission or conduct which causes him to be alarmed or distressed including but not limited to any of the following—

  1. (a)behaviour on more than one occasion which is offensive, abusive, malicious, insulting or intimidating;
  2. (b) unjustified criticism on more than one occasion;
  3. (c) punishment imposed without reasonable justification; or
  4. (d) changes in the duties or responsibilities of the employee to the employee's detriment without reasonable justification.").

The noble Lord said: I beg to move the amendment standing in my name. This amendment is to leave out Clause 1(2) and insert the redrafted subsection (2).

During the Second Reading debate a number of comments were made which suggested that there was some lack of clarity about this subsection. I am grateful to my advisers, and in particular to the noble Lords, Lord McCarthy and Lord Wedderburn, for their instructive advice in drafting this amendment.

The new subsection (2) identifies that harassment and bullying would constitute a breach of the right to dignity at work, and also gives some examples, which are not exclusive, that could be construed as conduct breaching the right to dignity at work. This right pertains during the employee's employment rather than in the course of his employment. I am advised that this will prevent legal difficulties.

Subparagraph (a) lists some aspects of behaviour which should have no place in a work context, which, if repeated, would constitute harassment or bullying. Subparagraph (b) identifies criticism which, if justified, would be acceptable in a work context, but if unjustified and repeated would breach the right to dignity at work.

Because these things can happen accidentally, it is felt that they should have to occur on more than one occasion to fall foul of this legislation. However, subparagraphs (c) and (d), which identify discrete situations with specific consequences—in fact, punishment without reasonable justification or changes in duties or responsibilities to the employee's detriment without reasonable justification—do not have to be repeated to be construed as breaches of the right to dignity at work.

Lord McCarthy

I am sure the Committee can agree to pass this stage of the Bill. At Second Reading the Government did not seek to deny, and the noble Lord, Lord Lucas, said positively, that it was a real and growing problem with which the Bill seeks to deal. He did not think that we should have this Bill, indeed perhaps any Bill, but it was accepted in the House at Second Reading that the Bill is attempting to deal with a real and growing problem. The only criticisms which were of any substance at that time did relate to the clause which is now amended. I am bound to say that those criticisms have now been effectively met by the amendment which has been put forward by the noble Lord.

We were worried that the list of examples might be thought to be all inclusive, or even additive, so that somebody might argue that you had to offend against more than one of them. That is made quite clear on the face of the clause now and it cannot be objected to on those grounds.

On this side of the Committee it was also thought that some forms of unlawful bullying were described in rather different ways. Some had to be done persistently, and some could be justified and some could not be justified, and we could not see quite why the noble Lord had put it in this way. Now he has clarified that so we can see quite clearly why he thinks that some examples require persistence, more than one incidence, whereas others are capable of justification.

The noble Lord also said—in some ways this was the most important point to make—that there was a great deal to be said for an effective general definition, of what a breach of dignity was to be in terms of the Bill, and we now have an excellent definition, a general definition, of what a breach of dignity is.

Therefore, I think that the Committee could agree, and I hope that we shall see the Bill passed through its remaining stages in this House as soon as possible, and it may even get into the other place during the dying days of this discredited government.

Lord Rochester

I was unable to attend the Second Reading of the Bill, but I have read with interest the whole of the report on it. This is not the occasion on which to speak at any length on the principle underlying the Bill, but I hope the Committee will allow me to say that, like the noble Lord, Lord Haskel, at Second Reading, I approached it with mixed feelings. I am not altogether convinced that what it seeks to achieve cannot already be accommodated by Acts that are already in existence, particularly the Health and Safety at Work etc. Act 1974 and the Employment Rights Act 1996.

There is also the Government's Protection from Harassment Bill, otherwise known as the stalking Bill, under which, as the noble Lord, Lord Lucas, confirmed at Second Reading, it will be an offence to pursue a course of conduct which causes a person to feel harassment or distress. It is good to know that that Bill is to have its Second Reading next Friday.

Having said that, I should like to make it plain that I have every sympathy with the motive of the noble Lord, Lord Monkswell, in bringing this Bill forward, for, as the survey commissioned by the Institute of Personnel and Development and other evidence have demonstrated, the incidence of bullying at work is clearly a serious problem. Moreover, now that the Bill has been approved in principle at Second Reading, it is incumbent on us all to do what we can to improve it before it leaves the House.

Turning to the amendment itself, the substitution of the words in it for subsection (2) of Clause 1, is in my view, a considerable improvement and takes account of a number of the criticisms voiced by the noble Lord, Lord McCarthy, at Second Reading. Specifically, there is now more consistency of definition, since, to be actionable, behaviour which is offensive or abusive, or unjustified criticism, has to occur in each case on more than one occasion. Further, it is now plain that the instances given in the clause of bullying or other unacceptable behaviour are not to be regarded as exclusive, but examples only within an overall definition of actionable conduct. Accordingly, I am glad to support the amendment.

Baroness Turner of Camden

I rise briefly to support the amendment moved by my noble friend this evening. Unfortunately, I also was not able to be at the Second Reading debate, but I have read Hansard since. I agree with the principle of the Bill, of course, as the noble Lord, Lord Rochester, has indicated. Bullying has become a major problem in many workplaces and, in my view, it is the job of those who make legislation in a civilised society to endeavour to protect vulnerable people.

Unfortunately, as a result of successive waves of legislation, employees have become more and more vulnerable and have less and less protection. The Bill, with the amendment, seeks to provide protection. The amendment improves the wording of the first part of the Bill. I therefore commend it to the Committee. I hope that the Bill will leave this place quickly so as to get on the statute book as soon as possible.

8.00 p.m.

Lord Lucas

I am delighted that the amendment pleases the noble Lords, Lord Rochester and Lord McCarthy. It must therefore rank as a good thing. So it saddens me that we still have some small faults to find with the definition as proposed by the noble Lord, Lord Monkswell. They centre upon two aspects of it. The first arises because there is no requirement in the clause that the employer's conduct should have been unreasonable or that the employee's conduct should have been reasonable. The second is that, because of the way in which the clause is drafted, the illustrations that come at the end of the definition are just that: they have no particular force due to the immediately preceding words. Once the industrial tribunal found that the individual had been caused genuine alarm or distress at work, however unreasonable, unavoidable or insignificant, it would have no discretion but to find that the protection of the Bill did not apply.

Perhaps the noble Lord, Lord Monkswell, will indulge in a fantasy for a moment and imagine that he was a Minister under a new Labour Government—the new Labour Government being the fantastic part of course—and that one of his officials had presented him with a memorandum which he found unacceptable in some way. It might have been badly drafted—that is another fancy; it does not happen in practice—and he had, in his most polite fashion, told that official what he thought of the documents, but the official had, nonetheless, been upset, and was distressed as a result of being told that about the work upon which he had spent a great deal of time.

As proposed under the clause, the official would, nonetheless, have the right to take the Government, and perhaps also the noble Lord, Lord Monkswell, to the industrial tribunal for causing him distress. If one were to have any Act along those lines, there must be some mechanism for ensuring that complaints are reasonable, justified and proportional, and that the employer has some proper responsibility for what has taken place.

Legislation is not the answer to all ills. In many cases the problems are too personal and subjective for statute to provide a practical solution. On Second Reading we discussed the assistance that legislation can and does give in particular circumstances and, as the noble Lord, Lord Rochester, said, may in the future. In other cases what is needed is a culture change within the organisation itself, a recognition of the issues and procedures, informal and formal, for dealing with problems that arise. Many companies operate grievance procedures for handling such problems. The noble Lord's union (the MSF) is to be congratulated on raising the profile of the issue and on offering practical advice for resolving problems. The Government welcome that approach. We firmly believe that that is the way to achieve results.

Lord McCarthy

What the noble Lord says about reasonableness, I should have thought was met in Clause 5. We talk there about the employer's defence. With respect, it has reasonableness written all over it. Under Clause 5(l)(a), when the employer is putting forward his defence he can say that he has taken all reasonable steps to implement and enforce the policy. Under Clause 5(l)(b), the act or acts complained of are repudiated by the competent person as soon as is reasonably practicable. Under Clause 5(l)(c), as soon as is reasonably practicable the employer takes all such steps as are reasonably necessary. So it goes on.

The argument that the employer has acted reasonably is built into the central core of the employer's defence. I should have thought that that was the proper place to put it. Of course if the Minister would like to tell us how he would like to see the Bill further amended, I am sure that we would be pleased to see what could be done.

Lord Lucas

I should be happy to address the point that the noble Lord has just raised. It would be better if I did so by letter to the noble Lord and to the other noble Lords who have spoken this evening. There is clearly a difference between our interpretation of the Bill and that of the noble Lord. I am happy to ensure that that is resolved before the next stage.

Lord Monkswell

I thank everyone who has contributed to the debate. I look forward to receiving the Minister's letter suggesting further improvements to the Bill. We have another couple of stages to go.

I shall respond to the debate on the amendment. First, I am glad that my noble friend Lord McCarthy feels that all the criticisms have been met by the amendment, and that we now have a good, general definition. I thank the noble Lord, Lord Rochester, for his support for the amendment. With the leave of the Committee, I shall respond to the points that he made about the fact that we currently have legislation. Employers also have a common law duty to look after the welfare of their employees. Unfortunately the mechanisms that the Government listed on Second Reading are felt not to be satisfactory for resolving the problems. I suspect that, were nothing to happen in legislation over a period of, perhaps, five or 10 years, case law would catch up and we would achieve an effective redress for this problem. One of the reasons for introducing the Bill is to ensure that some action is taken rather more quickly than that.

I thank my noble friend Lady Turner as well. I understand why she could not be here for Second Reading, and I appreciate her being here tonight. I welcome her support for the amendment. The noble Lord, Lord Lucas, identified as a problem the lack of a "reasonableness" argument. My noble friend Lord McCarthy rebutted that point effectively. The noble Lord, Lord Lucas, then put forward a hypothetical case. He said that if a Government Minister were critical of the advice that he had received from his advisers, the advisers might have a case against him. I think they would have if the Minister's criticism was unreasonable and unjustified, and he treated his advisers in an appalling way. He should be taken to an industrial tribunal. But that is not the object of the Bill. The object of the Bill is to ensure that preventive action is taken by employers to ensure that bullying does not take place.

The noble Lord said that there was a need for a cultural change. There is such a need. I hope that this legislation will be part of the process of ensuring that that cultural change takes place rather more quickly than would otherwise be the case. I am grateful to him for the compliments he paid to my union and other unions for the effective work that they do in this field. I hope that that work will form a basis for the actions that good employers will take. Good employers using good practice should work with progressive unions to ensure that they have the right policies and practices within their companies.

Virtually everyone who has spoken has pointed out that the amendment will improve the Bill. I am glad about that. As I said, I look forward to receiving advice from the Minister as to how we can further improve the Bill. That may or may not be possible. There are another couple of stages at which we could take amendments. In the meantime, I commend the amendment to the Committee.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Remaining clauses and schedules agreed to.

House resumed: Bill reported with an amendment.

Baroness Miller of Hendon

My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.11 to 8.25 p.m.]