§ 3.12 p.m.
§ The Minister of State, Department of Trade and Industry (Lord Simon of Highbury)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Simon of Highbury.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 3 [Blacklists]:
§ Lord McIntosh of Haringeymoved Amendment No. 234:
Page 2, line 18, at end insert—
("() Regulations under this section creating an offence may not provide for it to be punishable—
§ The noble Lord said: In moving Amendment No. 234, I shall speak also to Amendment No. 280 which is grouped with it. I shall then afford the noble Baroness, Lady Miller of Hendon, an opportunity to speak to her amendments to our amendment before I respond to what she says.
§ Clause 3 gives the Secretary of State the power to introduce regulations to prohibit the blacklisting of trade union members and activists. The Delegated Powers and Deregulation Committee made a number of observations about this clause. In particular, it asked that we should set down in the Bill the maximum limit for penalties regarding any criminal offences which the regulations might create. Amendment No. 234 sets down the Government's proposals for such penalties. They are based on the equivalent criminal sanctions in the Data Protection Act 1998.
§ The penalties are proportionate to the nature of the offences. They will not involve imprisonment. That would be too strong a penalty for an offence of this nature. Instead the amendment sets maxima for the fines that can be imposed. Those are the same as those provided for by the related legislation of the 1998 Data Protection Act.
§ Amendment No. 280 responds to a similar recommendation in the committee's report dealing with the power to create criminal offences under Clause 17, which deals with discrimination against part-time 289 workers. Again, the committee recommended that the maximum penalty for any offence created under order-making power in Clause 17 should be specified on the face of the Bill. Again the Government propose to give effect to that recommendation by means of this amendment.
§ Any offences so created will only be for summary trial and will only be punishable by a fine up to level 5 on the standard scale; in other words, £5,000. That will be in line with offences under the Disability Discrimination Act 1995. We expect that the power to create offences will be used sparingly, if at all. The Government are of the opinion that, given the disability precedent, this would be an appropriate maximum penalty for any offence created under this power. I beg to move.
Baroness Miller of Hendonmoved, as an amendment to Amendment No. 234, Amendment No. 234A:
Line 5, leave out ("5") and insert ("4")
§ The noble Baroness said: In moving Amendment No. 234A, I should like to speak also to Amendments Nos. 234B and 280A which are amendments to Amendment No. 234 to which the Minister has just spoken.
§ As we have heard, both the government amendments are to the same effect though slightly differently worded. They both provide for penalties in the form of fines for offences under Section 3. The insertion of a penalty on the face of the Bill was at the suggestion of the scrutiny committee, to which the Government rightly acquiesced. However, the level proposed is the maximum permitted. In their haste to table their last-minute amendments in time for your Lordships' Committee, they may not have considered totally the implications of the level they proposed.
§ The level of the fines imposed is at level 5. At current rates, as the Minister said, that is up to £5,000. That is the same level as for driving while disqualified, driving with excess alcohol, stealing, possession of drugs, criminal damage, violent disorder and causing grievous bodily harm. I do not detract in any way from the seriousness of blacklisting. Nor has anybody accused me of being soft on crime, especially not when I sat in the magistrates' court. Indeed, in the early clays of opening my businesses in Germany and in Australia I was subjected to attempts by competitors to have me boycotted by suppliers. Although I defeated the attempts, it would have been a lot easier if there had been redress available such as is now proposed.
§ However, I feel that the maximum level of fine proposed is too high, considering the other offences in the same bracket I mentioned. Level 4—a fine up to £2,500—would be a sufficient deterrent considering that the perpetrator will end up with a criminal record. Looking at the other offences dealt with at level 5, the fine would be disproportionate. Proportionality is now supposed to be the criterion for criminal sanctions.
§ Finally, I turn to the second part of the amendment to Amendment No. 234, which is the deletion of paragraph (c). That may be a mistake by the draftsman. It repeats 290 paragraph (b) because I understand the statutory maximum in case of summary conviction in cases triable either way in any event is level 5. However, as the Government omitted that subparagraph from Amendment No. 280, I assume that they noticed it and can probably manage without it in Amendment No. 234. I beg to move.
§ Lord McCarthy
I wish to ask two questions of the Government and one of the noble Baroness, Lady Miller. First, if we cannot send the offenders to prison, what happens if they persistently do not pay? Secondly, what is the statutory maximum? I do not believe the Minister told us. The provision says,by a fine in excess of the statutory maximum".He told us that level 5 was £5,000. What is the statutory maximum? Finally, the noble Baroness, Lady Miller, did not tell us what level 4 was.
§ Lord Monkswell
Perhaps I can speak in this debate, first, to correct the noble Baroness, Lady Mill I believe she said that the maximum penalty for GBH was a £5,000 fine. I can assure the Committee that one can actually go to prison for GBH, so that needs to he corrected.
My noble friend also raised the question about imprisonment. We are talking about two separate categories. One is in regard to Clause 3 where we are talking about blacklisting. We probably all recognise that the risk of blacklisting will probably not come from a company; it will come from a rich individual who has some curious views on industrial relations and the way to help them, which would be counter-productive to the good climate of industrial relations we are trying to engender. The idea of levying a £5,000 fine on a rich individual who happens to hold some curious views is risible.
I hope that the Government will reconsider the matter and insert the possibility of a term of imprisonment at the next stage. It does not have to be a very long term because the fact of someone being sent to prison is a significant marker in society. It would be a restraint to any individual who intended to set up a blacklisting organisation.
Amendment No. 280 is concerned with discrimination against part-time workers by a company or groups of companies. If the discrimination continues for a significant period of time, if companies underpay their part-time workers and do not give them pension provisions, there can be a lasting economic effect, beyond retirement. Again, this is a significant problem, and I ask the Government to reconsider the option of a limited term of imprisonment as a salutary marker.
The Government were right to respond positively to the recommendation of the Delegated Powers and Scrutiny Committee by including the limits to penalties. Bearing in mind that this matter has only arisen since the report by the Delegated Powers Scrutiny Committee, have the Government been in consultation with the 291 TUC, with the employers' organisations and the Institute of Personnel Development to ascertain their views on the penalties that could be included in the Bill?
§ Lord McIntosh of Haringey
The noble Baroness, Lady Miller, in introducing the amendment, appeared to think that the Government have considered these matters in haste. I can assure the noble Baroness that we had time to give very full consideration to the penalties which should be on the face of the Bill after receiving the report of the Deregulation and Delegated Powers Committee. We did so by analogy with the most appropriate other offences. While blacklisting, however deplorable it may be, is presumably not a violent offence, the noble Baroness gave analogies of other violent offences which attract fines up to the level 5 maximum as an argument against the decision we have made. We have based our proposals in Amendment No. 234 on the Data Protection Act, 1998. There are strong similarities between the two Acts: both relate to the processing and misuse of data; both provide protection to individuals against abuses which can arise when information about them is compiled by third parties. That is why we thought that the analogy with the Data Protection Act was the correct analogy.
In reply to the point made by my noble friend Lord McCarthy, the figures that have been quoted are for £5,000 at level 5 and for £2,500 at level 4, which are the statutory maximum penalties. They can be changed by legislation and uprated in line with inflation.
We have given all the consideration that is necessary to reach a proper conclusion. We have continuously consulted the CBI and the TUC throughout the preparation of the Bill. We have raised matters with them and they have raised matters with us, and there has been no problem about consultation. I am not sure whether we have specifically consulted the Institute for Personnel Development, but I am sure that our consultations were wide enough to include that organisation if it had been felt appropriate.
In response to the question of the noble Lord, Lord McCarthy, about what happens if the fine is not paid, I give the standard answer which applies in one case in the law of England and Wales and in the other case in the law of Scotland. In England and Wales the court may order the sum owed to be recovered from the offender's assets by means of constraint. Ultimately, in England and Wales, someone who deliberately fails to pay a fine may be imprisoned for a failure to pay rather than for the original offence. My noble friend Lord Monkswell thought that we were not being fierce enough and that we should be prepared to send people to prison. However, these are criminal offences and appear on somebody's record, and we should not underestimate the seriousness of that matter.
In regard to Amendment No. 280A, we have looked for the most appropriate analogy, which we have decided is discrimination as defined in the Disability Discrimination Act 1995. Unless noble Lords can suggest any closer analogies, I believe that the Government have come to the right conclusion both in 292 terms of the severity of the penalties and in answering the recommendation of the Delegated Powers Committee.
Amendment No. 234B appears to be aimed at ensuring that criminal offences created under the blacklisting regulations cannot be triable either way. I assure the noble Baroness that the difference between Amendment No. 234 and Amendment 280 is deliberate. We do not agree with her that there should be no possibility of trial by jury under any circumstances. She said that she agrees with the Government that blacklisting is a serious matter because it has grave consequences for the blacklisted individual and for the reputation and standing of organisations accused of compiling blacklists. We take the view that we should not rule out the possibility of cases being tried before a jury, and that defendants should not be denied that right.
In the light of what I have said about the level of penalties and the need, where appropriate, for the opportunity of trial by jury, I hope that the noble Baroness will not press her amendments.
§ Baroness Miller of Hendon
I have listened very carefully to the Minister and I agree with him in relation to Amendments Nos. 234A and 280A. I will read what he said about Amendment No. 234B. I beg leave to withdraw the amendment.
§ Amendment No. 234A, as an amendment to Amendment No. 234, by leave, withdrawn.
§ [Amendment No. 234B, as an amendment to Amendment No. 234, not moved.]
§ On Question, Amendment No. 234 agreed to.
§ Lord McIntosh of Haringey:moved Amendment No. 235.
Page 2. line 18, at end insert—
("() In this section "list" includes any index or other set of items whether recorded electronically or by any other means.")
§ The noble Lord said: When we last discussed this part of the Bill on 7th June we amicably agreed to separate Amendments Nos. 235 and 235A from the earlier grouping, I think because the noble Baroness could not find her notes. However, I am sure she has them in front of her now.
§ Amendment No. 235 is clarificatory. It provides a fuller definition for the type of list that can be prohibited by regulation. Information can be stored and circulated in many ways these days, and paper records are becoming less and less important, although the amount of paper used does not seem to be diminishing. Electronic and digital technologies have created many more means of conveying information. We want to ensure that the clause reflects the multimedia age and is elastic enough to cope with the future development of information technology. The amendment is phrased in a way to capture a wide range of possibilities. Perhaps the noble Baroness would care to speak to Amendment No. 235A before I make any comments on that amendment. I beg to move.293
§ 3.30 p.m.
§ Baroness Miller of Hendon
Before I speak to my amendment, I have to say that the Minister was extremely courteous last time. He is absolutely right. I pretended one thing. The truth was that I could not find the wretched notes.
Clause 3 prohibits the blacklisting of workers by their employers in retaliation for their engaging in trade union activities. We have already indicated our general acceptance of this provision. However, we believe that there is another side to the coin: it is the process that the unions call "blacking", which is short for blacklisted. Apart from the strike on an employer's premises, a union engaged in a dispute may proclaim goods or services made or provided by that employer as "black". Members of the union in dispute and members of other unions are often encouraged not to handle them. For example, goods manufactured before the dispute begins may get held up in the docks or at the employer's warehouse; retail shops carrying those goods may be picketed; and firms who supply goods and services to the business in dispute may also find themselves picketed or their customers intimidated by aggressive leafleters, or their own businesses threatened with blacking if they do not desist from dealing with the firm involved in the dispute.
Blacking has been extended to disputes in which the union itself is not even involved but is acting in support of a foreign union by refusing to handle goods coming from abroad. This blacking does not always end when the dispute is settled, as almost inevitably is the case, by agreement between the parties. The blacking, despite the unusual "no reprisals" clause in a settlement, is often only observed by the employer. Goods made by an employer during a strike with the assistance of non-union labour, or by another firm, may continue to be blacked indefinitely. This amendment would prohibit those activities. The proposals are reciprocal to the anti-blacklisting provisions that the Government have introduced into the Bill as a criminal offence.
The Bill began life as the White Paper, Fairness at Work. The Minister's response to this amendment will be a clear measure of how seriously the Government take their claim that the Bill is a "measure for partnership." Many provisions in the Bill lean over backwards to be fair to employees. However, as I see it, there are not quite so many which favour employers or which are even-handed. If, as we all agree, there should be no blacklisting of employees involved in a dispute, or those who engage in legitimate union activities, then similar economic activities against employers should also be banned.
As a result of the trade union legislation introduced by the previous government, union rights and privileges are protected as well as being regulated. That is why the Labour Party manifesto said:The key elements of the trade union legislation of the 1980s will stay—on ballots, picketing, and industrial action".Blacking is no less industrial action than mass picketing. We now have industrial tribunals with wide powers to protect and enforce employees' rights. There can be no justification for what can be described as "overkill" 294 when a union tries to pursue a claim. If the Government will not accept this amendment. I am sure they will tell us why. Perhaps they will also tell us whether they have an alternative provision which would give a measure of even-handedness and justice to employers. I believe that the purpose of my amendment can be summarised in two words: fair's fair. I beg to move.
§ Lord McIntosh of Haringey
I am afraid that the noble Baroness has misunderstood the role of the blacklisting amendments in this legislation. She made a delightful speech; indeed, it took me back to the great days of, "I'm all right Jack", Red Robbo, and so on. It was nostalgic in the extreme. However, I believe that the noble Baroness misunderstands the reason why we have the blacklisting amendments in the Bill and why we have not interfered with so much of the legislation of the past 20 years—a good deal of it passed by the previous government—which deals with industrial action. We have had to introduce the amendments on blacklisting because the blacklisting of individuals is the issue here, an issue inadequately provided for in legislation.
In seeking to prohibit lists of employers, the noble Baroness is going back into the whole area of legislation about industrial action, which covers both employers and unions. If the noble Baroness is seeking an analogy of fairness between both sides on the industrial/employment relations front, she should be looking at the legislation which covers employers and unions rather than comparing the legislation on employers with the proposed legislation here about individuals. The legislation on industrial action is very detailed and contains many protections, as I believe the noble Baroness acknowledges, for employers and unions alike. We have made it very clear that we will keep the key elements of the law in this area. The balance will still need to be held, notice will still need to be given, and secondary action will remain unlawful.
As our proposals in this area make clear, we are committed to providing a fair balance between the interests and freedoms of individuals and their employers. Our proposals are aimed at modernising the law and redressing the current imbalance that exists in relation to individuals. I am afraid that the noble Baroness's amendment could tilt the balance back again. I am not convinced that this is a major problem. I believe that the analogy which the noble Baroness draws is a false one. I am confirmed in my view that this is not a major problem by the fact that we have not received any representations from employers to amend the law in the way proposed. In those circumstances, I suggest that the legislation of the previous government on secondary action already achieves the protection that the noble Baroness is seeking and that her amendment is both unnecessary and inappropriate.
§ Lord McCarthy
If a union was in the course of an industrial dispute, as my noble friend the Minister said, surely to engage in the activities set out in paragraphs (a), (b) and (c) would be secondary action. Indeed. if it were secondary action, it would be unlawful under the terms of the 1992 Act. I do not know what the noble 295 Baroness is complaining about, unless she is talking about individuals. However, if this were to be done collectively as part of a dispute, the noble Baroness must admit that it would be secondary action and, therefore, unlawful.
§ Baroness Miller of Hendon
I heard very clearly what the Minister said: he liked my speech but saw no need for it. Perhaps he is right. I certainly think about things in the context of "fair's fair". However, I shall take the matter away and read most carefully in Hansard what the Minister said.
§ On Question, amendment agreed to.
§ [Amendment No. 235A not moved.]
§ Clause 3, as amended, agreed to.
§ Clause 4 agreed to.
§ Schedule 3 [Ballots and notices]:
§ Baroness Miller of Hendonmoved Amendment No. 236:
§ Page 59, line 36, after ("possession") insert ("or which is ascertainable by it after reasonable enquiries")
§ The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 238, 241, 243 and 245. All these amendments affect Schedule 3. This is a small group of amendments relating to information to be supplied to employers in relation to ballots conducted under the Bill, plus one item relating to information which should be given to employees. None of them reduces the amount of information to be provided; on the contrary, the amendments call for the information to be fuller, clearer or more explicit. I shall take each of the points item by item. Paragraphs 3(2) and 9(2) reduce the liability of the union to provide detailed information about employees entitled to take part in a ballot. Instead, the union has only to give such information as is in the union's possession. We believe that that makes life too easy and that it provides a simple excuse for the union not to be too diligent in supplying the information that the employer needs and is entitled to have.
Amendments Nos. 236 and 243 require the union to make reasonable inquiries to find any information which it does not have. I personally do not believe that this puts any undue burdens on the unions. Similarly, Amendments Nos. 238 and 245 would substitute new sub-paragraphs for those printed in the Bill. The Bill qualifies the obligation to provide information by saying that the rules apply,
if the union possesses information as to the number, category or work-place of the employees concerned",
and so on. The amendments would oblige unions to provide the information without the excuse of saying that they do not know. I find it totally inconceivable that a union claiming to represent a group of workers can do so without knowing how many there are, what they work at, or where they work. The amendments prevent obstruction by the unions. If they are genuinely launching a ballot without knowing who they are representing, then, in my view, the very least the unions must do is bestir themselves and find out. Having done
so, they should then pass that information on to the employer. It is axiomatic in English law that a person involved in a dispute should know in advance the case against him; and, indeed, that he should know who is making the claim.
Amendment No. 241 deals with information to be given to an employee in connection with a strike ballot. The information will be required by the Act to be printed on the ballot paper. I wish to read a slightly shortened version of the text which appears in full on page 60, lines 18 to 21 of the Bill,
if you are dismissed for taking part in strike or other industrial action which is called officially…the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part".
The text continues,
and may be unfair if it takes place later".
There is an omission which makes this particular phrase misleading and may encourage a worker to continue in a prolonged strike and expose himself to dismissal. It is no use arguing that the words "may be unfair" should alert the worker to the fact that it could equally be fair. With no disrespect to anyone, the majority of the workers receiving the ballot paper will neither be professors of semantics nor Chancery lawyers.
If the notices are intended to tell the workers their rights they should be clear and unambiguous. They should not contain theoretical fine print, or in this case require the worker to have to read between the lines. Amendment No. 241 simply alters the notice to read,
and may be fair or unfair if it takes place later".
I would like to assume that the Government will accept all five of these amendments—perhaps I hope that in vain—in the interests of full information being available to everyone involved in a ballot. I beg to move.
§ Lord Wedderburn of Charlton
My noble friends and I have tabled an amendment to the same schedule as the amendment we are discussing but which in no other way supports the noble Baroness in what she has just said. I hope that my noble friend will resist these amendments. However, as I have an amendment in the group we are discussing it behoves me to explain the seemingly small change that we called for in Amendments Nos. 237 and 244 as regards the notices to be given by the trade union.
This is an area of great practical importance because the legislation of the 1980s left us with a provision to give notice to the employer, first, of the strike ballot paper, and secondly, of the forthcoming action if there was a majority in the ballot. However, in both those cases among the matters which had to be revealed was a description of all the employees in the union who were included in the industrial action. The relevant words are printed rather usefully on page 59 of the Bill in Schedule 3; namely, that among other things, the union must describe the employees entitled to vote. The union must state who those workers are to enable the employer readily to define them. That phrase gave rise to great ill will. It was interpreted by some people and some employers to mean that the union must give names or even names and addresses in respect of the two sets of notices.
297 Recently the Government made it plain that they did not want to have such an obviously discriminatory provision. There were cases where workers' names had to be revealed in the sense that they could only readily be described if some identification were made which made it clear who they were. Whether one regards the right to take industrial action as a right or as a liberty, it is rather unattractive to add to it the requirement that the union has to give suitable and sufficient description of those concerned which in many cases will enable them to be identified.
We strongly support the Bill in respect of paragraph 3 on page 59 of the Bill and the other notice provision because that provision is now knocked out. However, in its place comes what I can regard only as a quite extraordinary provision; namely, that the union must give vital information, including that which would help the employer "to make plans". If one is to talk about employers, unions and employees as partners, one has to rub one's eyes to believe that when the partnership is in trouble such that one side or the other is party to a dispute, the law will say to one of them, and one only, "You must give to the other partner the information which is required to help him to make plans". Perhaps I should express that in a different way. The Bill as it stands means that in a trade dispute the union must give to the employer information to help him to make plans. In the middle of a dispute situation where notices are to be given by one side or the other, the employer can make his plans not only on the basis of information which he can normally obtain but also on the basis of what the union must give to him. That is not as bad as requiring identification of individuals among the workforce as it will not make any kind of discrimination so easy. However, from the point of view of the union and the majority of the employees it is surely quite absurd to require them unilaterally to give to the employer the information which will help him to "make plans.' in the context of a dispute.
Our real objective in the amendment I am proposing is to ask my noble friend to look again at the wording of the provision. If the provision comprises making plans about a particular matter there may be a justification for it. But this is a case of making plans generally in the context of a dispute where both parties are otherwise acting lawfully. However, one of them must give specific and unrivalled information to the other. I speak to Amendment No. 237 and to Amendment No. 244 in the hope that my noble friend will reconsider the matter as I believe the wording I propose is similar to the wording that it seeks to replace. People used to say that the requirement concerning names and addresses would never happen and that an employer would not demand them. Most employers did not demand them but there were cases where that provision gave rise to extreme ill will. I believe that if this provision is not at least rephrased it will give rise to disputes which need never occur.
§ 3.45 p.m.
§ Lord McIntosh of Haringey
I am grateful to the Committee for agreeing to discuss these amendments 298 to Schedule 3 together. They are not of course the same and they certainly do not go in the same direction but it is useful to consider the whole issue at one time.
I start with Amendments Nos. 238 and 245. The Bill specifies that if the union possesses the information the notices should include at a minimum a description of the number of employees involved, the broad kinds of job they perform and their workplace. The unions will be required to describe as accurately as they possibly can the broad occupational characteristics of their members, their workplace, location and the number of their members involved. But, inevitably, the unions will be limited by the information at their disposal. There may be rare occasions when they will be unable to provide in full the details required by the notice provision. These amendments seek to require unions to provide the information regardless of whether or not it is in their possession.
In most cases, unions should have the necessary information to hand. In the rare cases where they may not, the amendments would, inevitably, require unions to undertake special exercises to collect the information. We have repeatedly said that we will retain the key elements of the law on industrial action—including the requirement on unions to give the employers concerned advance notice of both the ballot and of any official industrial action which may result. I hope that, on reflection, the noble Baroness will agree that it would not be right to require unions to undertake special exercises to collect information in addition to those obligations.
My hope is immediately dashed when I look at Amendments Nos. 236 and 243. These amendments seek to require the unions to make additional enquiries to collect information for the notice other than that already in their possession. We do not want to require unions to do that. We want to reform the law on industrial action ballots in order to reduce the very large administrative burdens on unions. The amendments would serve only to provide additional burdens on unions which would delay or frustrate the organisation of the industrial action.
As the noble Baroness will recognise, that does not mean that we are in favour of industrial action. All are agreed that industrial action is a last resort. But if there is one thing worse than industrial action which takes place according to efficient procedures and as soon as it can once those procedures are gone through, it is industrial action which is threatened and delayed because of administrative procedures and the need to obtain additional information.
The amendments are unnecessary. In general, the notice provisions will mean that employers will receive much the same information as they do now, short of naming the members involved. In all circumstances employers will be able to communicate with their workers by issuing a general letter to all those potentially involved. I hope that the noble Baroness will, on reflection, consider that that is sufficient and IA ill not press the amendments.
299 Before dealing with my noble friend's amendment, perhaps I may turn to Amendment No. 241, which deals with the wording of the statutory statement which all voting papers must contain—the "health warning", as the noble Baroness quite rightly referred to it.
There is general agreement that the existing wording is inadequate because it fails to reflect the new protections against the unfair dismissal of strikers contained in Schedule 5 to the Bill. We have come forward with proposals in paragraph 5 of Schedule 3 which add new wording to the health warning describing the new protections. The wording is intentionally short. A voting paper is not the place to write a detailed account of the new protections. If it contained such an account, people would not read it. Our proposed wording gives an accurate summary of the main protections against dismissal. The amendment seeks to add further wording. I know that it is only two words but, nevertheless, the amendment seeks to draw particular attention to the possibility that dismissal after the first eight weeks of a strike could be fair.
The amendment is unnecessary. Under our proposals the health warning would state that dismissal in this period "may be unfair". I hope that the noble Baroness will concede that the wording already conveys the notion that dismissals could be fair or unfair. That is why we say "may be unfair". I know that the noble Baroness anticipated this argument, but it is still correct. There is no need to complicate the statement by adding the further wording she proposes.
I shall now turn to Amendments Nos. 237 and 244. The fact that these amendments have been grouped does not imply any support for the Opposition amendments. I am glad to have my noble friend's welcome for the changes proposed in the Bill. I agree with him in his criticisms of the previous wording.
The Government believe that the notices are useful to employers, enabling them to act responsibly when faced with the threat of industrial action. However, they are not designed to provide the employer with the information for its own sake. Nor are they designed to enable an employer to victimise the individual employees concerned. The Bill explicitly defines the purpose of the notices. They are to enable the employer to put his side of the argument to his workforce, for them to take into account when participating in the ballot or responding to the union's call to take action; and they are to help the employer to make plans to minimise the adverse effects of possible industrial action on his organisation, on his customers and on the general public. These are sensible objectives and are two justifiable reasons why employers need this information. However, the amendments would seek to remove the latter purpose—that is, the purpose of making plans—from the face of the Bill.
I am sure that my noble friend had in mind the scope of information that unions will be asked to provide in order to enable an employer to make plans but—unless the Committee were unwise enough to accept the Opposition amendment—all the union has to do is to provide information in its possession. There is nothing sinister about this.
300 Let me give as an example the case of a further education college. My noble friend will know the case of Blackpool and Fylde College v. NATFHE. I seldom get an opportunity to quote cases against him. I choose this case because it concerned a college which confirmed that the current law requires the union to provide names. The management knows that a number of lecturers will be called out on strike on a certain day. Unless the union provides the information, the management has no way of knowing which lecturers or where. So they cannot warn students whose classes will be cancelled. But unless the union tell the management, "We are calling out 50 lecturers in the English department and 30 in chemistry" or "There will be 200 lecturers at site A and 100 at site B", the college cannot give its students some warning of the scale of the action.
Perhaps I may give another example—the London Underground. If a union in calling a strike intends to target, say, the Central Line, it is only fair that it should tell London Underground that that is what it is going to do in order that the public using the line can be warned and have the chance to make other arrangements, while users of other lines should know that they will not be affected. Businesses and all organisations depend on their customers, the users of their services. It is in the interest of workers as well as that of management that customers are given as much warning as possible of the likely effects of industrial action. Otherwise they will take their custom elsewhere and they will not come back. The public reaction to a number of public transport strikes is evidence of that.
It may be that this information will reduce the impact of industrial action. I hope that all unions have moved beyond trying to make industrial action as damaging as possible, regardless of the effect on the long-term survival of the business. We are trying to promote a long-term partnership approach. During a short-term dispute, it is important not to lose sight of the overriding common interest of workers and employers in the success of the business.
No additional kind of information will be required to be provided; only that information already in the possession of the unions. We will not place any further burden on unions by requiring them to collect information they do not already hold; and employers cannot insist on receiving information which the unions do not have. The changes we are proposing—including the ability to make plans—are in the interests of employers, unions and workers. They give greater clarity about the nature and purpose of the information to be provided by the unions and they protect workers from having their union membership disclosed to their employer against their will. I believe that we have reached the right balance. In those circumstances, I hope that the noble Lords who have tabled these amendments will either withdraw them or not move them.
§ 4 p.m.
§ Lord Monkswell
My noble friend talks in terms of the unions having to give virtually all the information that they have to employers to reduce the impact of a dispute on the employer. What is the quid pro quo? Will 301 there be a similar requirement on the employer to provide all the information that the employer has to the union in order to ensure that there is a balance?
My noble friend gave the unfortunate impression in speaking to these amendments that industrial disputes are solely caused by unions. That is not the case. I know of a high-profile national dispute that was engendered by the employers in order to discontinue the production of goods with which there was a problem. The employer engineered a strike in order to stop production, effectively at no cost to itself. I was slightly concerned at the tone of my noble friend's remarks and his suggestion that the cause of industrial disputes lies solely with the trade unions. That is one of my reasons for asking that question.
There is a more significant reason. If trade unions and workers are prevented from having an effect on employers if they are engaged in a dispute they will find some other way of impacting on employers. These are practical issues relating to day-to-day industrial relations. They need to he taken on board. I revert to my original question. Is there a quid pro quo? Will employers have to provide unions with all the information that they have in order to balance the requirement on unions to provide all their information?
§ Lord McIntosh of Haringey
In the course of a short speech my noble friend has managed to impute to me words that I certainly did not say and motives that I certainly do not have. First, he said that the Bill states that unions have to give all the information in their possession to the employers. That is not what the Bill states, and it is not what I said. The Bill spells out very clearly the information that has to be provided. It is information that is in the possession of the unions. It cannot include the names and addresses of those who will be involved in the proposed industrial action, and it is defined by the purpose for which it is to be used.
My noble friend went on to suggest that I implied—he does not think that I said—that all strikes are caused by unions and not by employers. I am aware of the word "lock-out" as well as he is. I am aware that there are, and have been, employers who choose to provoke strikes in order to promote their own interests. The law as proposed in the Bill is deliberately and conscientiously even-handed. It has been, as my noble friend knows well, the result of consultation with the TUC as well as the CBI.
My noble friend returned to his first question: what is the quid pro quo? There is already a reciprocal duty, in so far as employers are obliged to disclose information, to recognise unions for the purposes of collective bargaining.
§ Lord McCarthy
I must stress that we are trying to help. At the same time we are trying to understand. I am not sure that I do understand. Perhaps I may turn the Minister's attention to paragraph 3(2) of Schedule 3 to the Bill. The Government are amending the situation in which in the past an employer could ask for names.
302 As I understand it, the Government want to end that situation. It is stated on the face of the Bill:In subsection (2)(c) (notice of ballot must describe employees entitled to vote) for 'describing (so that he can readily ascertain them)"—that is the present situation—the employees of the employer' substitute 'containing such information"—these are the new words—in the union's possession as would help the employer to make plans".I had assumed that the kind of information that would now have to be supplied to enable the employer to make plans, whatever it might be, would not include names or information that would enable the employer to ascertain names. That was the point of the amendment to the Bi11.
But I understood the Minister to indicate in the examples he gave that it might be possible, under the provision of "making plans", for an employer to demand names or information through which he could readily ascertain names. If that is the case, I do not see that the amendment does anything. That cannot be the case, can it?
§ Lord McIntosh of Haringey
No. I made it entirely clear that there are no circumstances under which a union can be required to give names and addresses.
§ Baroness Miller of Hendon
I understand what the Minister is saying in regard to Amendments Nos. 236, 238, 243 and 245. I still feel that it is inconceivable that a union would act for employees in the matter of a ballot without knowing for whom it was being done. However, I shall leave that aside for the present.
I am absolutely amazed at Amendment No. 241. I was delighted to hear the Minister agree that the wording was not correct. However, I knew that he would say that "may be unfair" meant that it also "may be fair". I anticipated his remarks. But since the Minister and the Government are concerned that the matter should be clear—which is why they redrafied this section—I cannot see why, even in this small part, the words cannot be "fair or unfair". That would indicate exactly the meaning given by the Minister. However, I shall not press for a Division. As I plead every time, I should like the Government at least to find one small part that makes all the hours that I spend on these speeches worth while. Since the Minister says that "may be unfair" also means "may be fair or unfair", why he cannot simply give in and say, "You can have it, because that is what it means", I know not—which makes me wonder if that really is what it means. But at this stage—
§ Lord McIntosh of Haringey
Let me look again at that issue before Report stage, without any commitment.
§ Baroness Miller of Hendon
That is most generous of the Minister. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 237 and 238 not moved.]303
§ Lord Wedderburn of Charlton moved Amendment No. 238A:
Page 60, leave out lines 13 and 14 and insert—
(""(2A) For the purposes of subsection (2), the union may state on the ballot paper that relevant action is industrial action short of a strike.
(2B) In subsection (2A) "relevant action" means an overtime ban, a ban on contingency or contact arrangements, a call-out ban, and forms of discontinuous action within subsection (6) of section 234A below.").
The noble Lord said: This is a substantial amendment. The Committee will see in Schedule 3 that the issue addressed by this amendment, and now Amendment No. 242, goes to the central features attending the legality of official industrial action. It is spelt out in paragraph 5 on page 60 that,
For the purposes of subsection (2) an overtime ban and a call-out ban constitute industrial action short of a strike".
It is important for the Committee to note that this is a statutory prescription as to the character of two types of industrial action which would not normally be regarded as full strike action—but only two.
§ In order to have industrial action which is legally acceptable, the union is required to put to the members involved either or both of two permitted questions; namely, whether they will strike or whether they will register a view regarding industrial action short of a strike. Many people think that action short of a strike is either a go-slow or an overtime ban or other action of that kind. I must make it clear to the Minister that much of this is not the Government's fault. This has long been a problem, but we submit that it is made worse by the part of the Bill to which I have referred. To explain why, the union must get the voting question right. Members are asked whether they want to take strike action or industrial action short of a strike. If the majority vote for action on one of the questions but the union calls for action on another, the legality is lost. These are very severe limits on the British so-called right to strike. On this technicality (as most people see it) many cases have been taken to court, many by employers who are the obvious plaintiff. To be even remotely fair, the law must give the union and employer a clear definition, as far as possible, of what is a strike and what is action short of a strike.
There are a number of difficulties, three of which I mention. First, the formula as to what is a strike and what is industrial action short of a strike applies not only here but also to a situation in which the employer faces a claim that dismissals in a dispute are improper because they have occurred in the course of industrial action. We come to that in Schedule 5. A strike is defined in Section 246 of the Trade Union and Labour Relations (Consolidation) Act 1992 as,
any concerted stoppage of work".
That is about the least helpful definition that anyone has ever put in a statute about labour law. It does not even say what the purpose is. Students are always quick to note that a concerted stoppage of work would cover those who went off to a football match. Obviously, by implication it means that there is some kind of dispute by virtue of which the stoppage takes place. But the statute does not say so. A stoppage of work can include
a stoppage of two minutes, two weeks or two years; it leaves it open to a total stoppage, a go-slow or an overtime ban.
§ The Court of Appeal faced this problem squarely for the first time in December 1998 in an action in which a rail company, Connex South East, sought an injunction against the National Union of Rail, Maritime and Transport Workers. The case is to be found in Industrial Relations Law Reports . A new judicial answer was given to the problem. A ballot was taken of some 230 conductors employed by Connex who were asked, "Are you prepared to take strike action?" After that, having gained a majority in the ballot, the union called on members to impose a ban on overtime and rest-day working. Most people thought that perhaps the court would regard that as industrial action short of a strike and therefore that the strike did not count because members had taken part in action short of a strike. Not a bit of it.
§ Noble Lords may well be surprised that I rather approve of this decision. Connex, which, in hours, went to the High Court, as our procedures allow, and then to the Court of Appeal, had its claim for an injunction turned down. The Court of Appeal said that the definition of a strike—a concerted stoppage of work—left open the possibility of the union imposing an overtime ban from the very beginning. Whereas that might look like an inconsistency, here it was not. The concept of industrial action short of a strike might therefore have a different customary meaning in various industrial sectors. Worse, even at this point the Bill makes the 1992 Act appear self-contradictory. Section 246 of the Act defines "strike" in the way that I have outlined, but the Bill now by law insists on a special meaning according to the provisions in Schedule 3 which it has never had before.
§ What is more, if your Lordships look at the provision in respect of a strike and industrial action short of a strike, you will see that it now says that an overtime ban and call-out ban constitute industrial action short of a strike. I make no complaint about the Bill overturning a decision of the Court of Appeal. Very often one feels that the sooner it is done the better, but in this particular case one cannot but feel that the provisions on overtime and call-out bans and their mandatory status as industrial action short of a strike relate to the decision of the Court of Appeal in the Connex case that such bans are to be looked at in this context, if it allows, as strike action.
§ This becomes a little more complex. I seek to avoid some of the complexities. The Bill will make obligatory under terms of employment what may not be, in any sensible terms, a contract of employment and therefore a breach, as was said in the Connex case. The Connex case looked at whether those workers should have been working an overtime ban and said that they had and that went to feed the notion that it was a strike.
§ By this time the law has turned so many circles that one hesitates to add more, but there are more. In the words of one of the judges of the Court of Appeal, to regard an overtime ban as a refusal to work certain periods of time required under a contract of work makes the Bill rather odd. If that is the normal case for workers 305 of this union, then why should the Bill suddenly say that an overtime ban constitutes industrial action short of a strike?
§ What is more, not only is it a question which the union must put, even if it and its members believe that what they are doing is taking strike action in the linguistics and semantics of that particular area, but the reported judgments also suggest that whether it is a strike or industrial action short of a strike is a matter to be determined in the context of the bodies concerned: the employer perhaps; the union certainly; the employees who are members of the union, and so on.
§ What the Bill seeks to do is to remove the decision in Connex, which is a perfectly proper thing for a legislature to do, in regard to Section 229 voting papers. There is the subsidiary point that the Bill changes matters only in respect of voting papers. There are other issues, such as the unfair dismissal of a group of workers who take action, where a different meaning may be given, although I cannot easily see a court saying that it should be. However, it is definitely limited to notices and ballot papers for the purposes of the industrial action.
§ The Committee may believe that this is a matter of interest to employers, workers and present and former trade union leaders, who are now represented in this House, although not as well as they should be. Now that the issue has been raised and there are at least four sets of contradictions arising from various legal statements, would it not be a good idea to take the opportunity at Report stage to make sense of this area of the law? People's rights depends upon this. I refer not only to the rights of employees and trade unions but also rights of employers in the context of unfair dismissal.
§ In trying to cut down the matter it is in no one's interest to do less than justice to the extraordinary state of the law. I note that my noble friend has an interest at least. It is no radical ambition to ask the Government to look again at this matter, which is an amendment to the existing law—that is to say, paragraph 5(2)(2A). I would like to know why that was included. Why did the Government suddenly decide on all overtime matters, whether or not they were contractual? The Government know as well as I that some workers are on contractual overtime and some are on voluntary overtime. There are different parts of the spectrum in between. Why did they suddenly launch this bombshell? Why was it kept to overtime and call-out bans? Our amendment suggests a few others. But, if a proper job were to be done, our amendment would have to be reworded and cover a much greater area.
§ But there is a matter which is much more important than that. Have the Government understood the difficulties which employers, trade unions and employees will be in? If a union has always talked about an overtime ban as a right to strike, which was the case in Connex, why should it be prevented? It is in no one's interests for it to be prevented from giving to the members a ballot paper which says that, our action has been a strike and everyone knows about overtime bans. But the Bill says that one cannot say that. Not only cannot one do it, but one cannot say it without losing 306 all one's rights in industrial action of an official kind. I plead with the Minister to take us at least one-tenth of the way and say that a small area of this amendment will be looked on with favour. I beg to move.
§ Lord McIntosh of Haringey
As always, I Lim grateful to my noble friend for his critique of the previous legislation which this legislation seeks to amend. When he used the phrase "concerted stoppage of work" and said that it could last for two minutes, two days or two months, I was tempted to ask him whether the two minutes' silence on Armistice Day would count as a concerted stoppage of work for the purposes of the legislation. I shall not ask for an answer because I sure that he would have to charge me.
I remind the Committee that we are dealing with a voting paper. That is what this part of the legislation is about. We should not go wider than the issue of what should appear on it. The Government propose to amend Section 229 of the 1992 Act which sets the legal framework within which unions must operate when designing the voting papers that they use in industrial action ballots. It provides that the union must describe the proposed industrial action on ballot papers as either a strike or action short of a strike. Clearly, it is important to have that distinction from the point of view of being sure that those being asked to vote know how serious is the issue. Despite the final words of my noble friend, it is not important in terms of rights being lost. I here are no rights being lost as to whether it is a strike or action short of a strike.
§ Lord Wedderburn of Charlton
Whether or not one calls it a right is a matter of taste. But if one asks the wrong question and the court says that one has asked one kind of question instead of another, then one loses one's "right" to pursue an industrial dispute.
§ Lord McIntosh of Haringey
I thought that the noble Lord was suggesting that there were more rights for action short of a strike than for a strike itself. If there is a misdescription, then it is clearly important that the union should get it right, and that is our intention in this legislation.
We recognise that the term "strike" can be used in a variety of ways. Some occupations and industries give it one meaning and in others it is used differently. But we believe that most workers and employers are likely to consider that a strike is occurring when it involves the withdrawal of labour during normal working hours. That is the basis on which we have framed Schedule 3 and on which we have said that overtime and call-out bans constitute action short of a strike. I shall return to the Connex case in a moment when discussing Amendment No. 242. That is the definition of the term that we shall use to assess the amendments which my noble friend has tabled.
I begin with Amendment No. 238A. My first worry about it is that it says,the union may state on the ballot paper that relevant action is industrial action short of a strike".307 It does not say that it has to mention one or the other. The second problem is the phrase "contingency or contact arrangements". My noble friend's knowledge of employer relations is far greater than mine. I am not familiar with the phrase and I do not really know what it means.
§ Lord Wedderburn of Charlton
I am very grateful to my noble friend. We can deal with the matter very quickly without going into all the details. They are phrases used in unreported decisions which are in the Connex judgment.
§ Lord McIntosh of Haringey
I am grateful to my noble friend for that. As it is unreported it means that I do not know about it. I might even have a justification for not knowing.
The effect of the amendment is to give unions the discretion to describe a wide range of potential forms of action as "action short of a strike". In effect, only an all-out strike would have to be categorised as a strike. The intention of the amendment is to require a form of action to be described as "action short of a strike", but that is not what it says. Two kinds of problems arise. First, it seems to give the unions the discretion of describing the actions as a strike or action short of a strike. It could describe an overtime ban as a strike on one occasion, but action short of a strike in an identical case. That would create confusion for both employers and union members. There would be no consistency and people simply would not know what they were voting for.
Secondly—and this applies whatever the intention of the amendment—I am unhappy about the categorisation of all discontinuous industrial action as action short of a strike. It would mean that a strike on certain days of the week need not be described as a strike on the ballot paper. I doubt whether many workers would share that understanding of the meaning of a strike. For them, any non-attendance at work during normal working hours would be seen as a strike. So describing it as action short of a strike, which would be permitted by the amendment, would be seriously misleading and would potentially subvert the purpose of the ballot.
The current wording of the schedule is the right way ahead. It clarifies the status of overtime bans and call-out bans. It ensures that the various forms of industrial action are categorised on ballot papers in ways which most union members would readily understand.
I turn now to Amendment No. 242. In introducing both these amendments my noble friend referred to the judgment of the High Court in Connex v. RMT. That was clearly an important ruling and it helped to remove the uncertainty about the status of overtime bans. As my noble friend reminded the Committee, the court ruled that overtime bans should be treated as strikes.
We studied the High Court judgment when the schedule was drafted. We took the view that although the judgment had largely removed the uncertain status of overtime bans, it had nonetheless placed the bans in a category which would make less sense to those voting 308 in industrial action ballots. Overtime bans are outside normal working hours and selective in their effect. Most workers would not normally classify such bans as strikes. Indeed, the Court of Appeal accepted that that was the case. Workers tend to see strikes as events which affect normal working in a non-selective way. We therefore decided to classify overtime bans as "action short of a strike", thus ensuring that the law reflected the general understanding of the term. I believe that that will limit the potential for misunderstanding among union members.
However, there is potentially a tension between the wording in Section 246 and the definition of an overtime ban as "action short of a strike" for the purposes of Section 229. Amendment No. 242 seeks to remove that possible tension. As such, it serves a useful purpose and I am grateful to my noble friend for bringing it to my attention.
We are not entirely sure that the exact wording of the amendment is ideal and would like to consider the matter further. Nevertheless, my noble friend has skilfully drawn an important issue to our attention and I assure the Committee that the Government will return on Report with an amendment of their own to deal with this matter. On that basis, I hope that my noble friend will not press his amendment.
§ 4.30 p.m.
§ Lord Wedderburn of Charlton
In view of his last remarks, I am sure that my noble friend will expect me to say a few words. We are grateful to my noble friend for reconsidering the definition. That is what Amendment No. 242 seeks to achieve.
Perhaps I may make a twofold prediction. First, if one changes the definition by reference to Section 229, it will be found necessary to refer to the main section with regard to what the ballot paper must provide. In doing that—this is my second point—I predict that the Government will be driven to certain results if they do not want certain provisions on the statute book, although I add that these are not necessarily worse than those which preceded them. Those earlier provisions were characterised by hostility to workers.
In trying to find a new definition, I predict that the Government will find that they really should seize the moment. There are very few moments when such a question may be raised. It has been raised by the Connex case. Indeed, the Government raised it in paragraph 5(2). I did not raise it; the Government did. If they are raising the issue, surely they are obliged to look again at the usage of the terms "strike" and "industrial action short of a strike". Even if their conclusion goes against me, I ask them to do that. I beg leave to—
§ Lord McIntosh of Haringey
Before my noble friend withdraws the amendment, I have already said that I should like to meet him to discuss the matter between now and Report. I hope that he will put this on the agenda.
§ Lord Wedderburn of Charlton
I should be delighted. It is always a delight to meet my noble friend 309 and it will be even better with the agenda with which I shall provide him! I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 239 and 240 had been withdrawn from the Marshalled List.]
§ [Amendments Nos. 241 to 245 not moved.] Schedule 3 agreed to.
§ Clause 5 [Training]:
§ Baroness Miller of Hendon had given notice of her intention to move Amendment No. 245A:
§ Page 2, line 36, after ("must") insert ("if required to by the decision of the Central Arbitration Committee")
§ The noble Baroness said: Purely in response to the Minister's generosity, I do not intend to move this amendment or the other two amendments in the group. I know that he has undertaken only to "consider" Amendment No. 241, but I shall take away these three amendments in the same spirit and shall reconsider them at home.
§ [Amendment No. 245A not moved.]
§ [Amendments Nos. 245B and 245C not moved.]
§ Clause 5 agreed to.
§ Clause 6 agreed to.
§ Clause 7 [Maternity and parental leave]:
§ On Question, Whether Clause 7 shall stand part of the B ill?
§ The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)
Clauses 7 to 9 bring into effect Parts I to III of Schedule 4, concerning maternity and parental leave and time off for domestic incidents, together with the consequential amendments. I shall cover these in more detail when we come to Schedule 4. I commend the provisions to the Committee.
§ Clause 7 agreed to.
§ Clauses 8 and 9 agreed to.
§ Schedule 4 [Leave for Family and Domestic Reasons]:
§ Baroness Miller of Hendon moved Amendment No. 246:
§ Page 62, line 40, leave out ("permit") and insert ("require")
§ The noble Baroness said: This is a minor amendment to avoid a possible over-reaction to what may be a very commonplace situation. The Bill states that an employer shall not permit an employee to work during a compulsory maternity leave period. This simple amendment alters the wording to, "An employer shall not require an employee to work during a compulsory maternity leave period". As the late Professor Joad used to say, it all depends on what you mean by "work".
§ If an employer telephones a secretary and asks, "Where is the Bloggins file?", technically when she replies, that is working. There is much non-arduous work, especially of a clerical nature, that can be done at home these days, in the employee's own time and at the employee's own convenience. I do not categorise as non-arduous the 310 drafting of amendments to Bills or of the speaking; notes to deal with them! If the secretary can assist her employer, especially if it is a small firm which cannot afford a temporary replacement, by doing some word-processing, or if a book-keeper can just as easily do the weekly wages at home on the dining-room table, or if a sales person can maintain her all-important personal contact with her customers during her absence from the office, why not allow her to do so, if and providing she wants to do so? I stress, if she is willing to do so.
§ I am sure that the Government will argue that that absolute prohibition will prevent pressure being placed on an employee to do some work. However, I do not believe that that is a valid argument. The revised wording is absolutely clear. If an employer asks an employee to help him out with some task or other, the employee is absolutely entitled to refuse. The employer cannot, under the amendment, require her to do so. However, it is absurd that the making of a simple telephone call asking the employee where the keys of the stationer,' cupboard are means that the employer is committing an offence under these provisions, rendering him liable to a fine of up to £5,000.
§ Once the right to maternity leave is incorporated into our law and into the relationship between employer and employee, I do not dispute the need to protect employees from exploitation or from being subjected to pressures by an employer to avoid or evade it. However, I think that in the clause as presently drafted the Government are using a shotgun and are taking no regard of what the employee may think is reasonable or proper. I beg to move.
§ Lord McCarthy
I hope that the Government will resist this amendment. If it were accepted, it might reasonably be called the "It's up to you" amendment. if the law states that an employer shall not permit an employee to do something, it is the responsibility of the employer to ensure that it does not happen, and if it does happen, that is the employer's responsibility. An employer cannot say to an employee, "It's up to you. If you would like to help me and to be co-operative, you will come in on Sunday". That is not what the noble Baroness wants. She wants the Bill to state that an employer "shall not require". In other words, the employer can say, "I don't require you to do this, but it would be very nice if you did". That is the same as saying, "It' s up to you". Those who know anything about the balance of power between, for example, employers and their secretaries know exactly what pressures employers put on secretaries when they say, "It's up to you". So I sincerely hope, if this is to mean anything, that the Government will not accept the amendment.
§ The Earl of Mar and Kellie
My Amendment No. 246A is grouped with these amendments. The amendment sets out to define what is meant by the word "remuneration". It would include childcare vouchers, luncheon vouchers and holiday stamps. This amendment has been suggested to me by the Law Society of Scotland. It is a probing amendment and has the aim of soiling out the ambiguity over which employee benefits constitute 311 pay and which do not. Absolute parity on this issue will be essential for those who have to implement the provisions of this Bill when enacted.
§ Lord Sainsbury of Turville
These amendments relate to different aspects of maternity provision and so I will take each of them in turn. Amendment No. 246 relates to compulsory maternity leave. I am somewhat surprised by the concern which this provision has generated both here and in the other place. The compulsory maternity leave provision was put in place by the previous administration to give effect to the Pregnant Workers Directive which required member states to introduce a period of compulsory leave for women around the time of childbirth.
In 1994, when the directive was implemented, this requirement was translated into a ban on women working during the two weeks following the birth, coinciding with the period when most women would be on maternity leave. I doubt whether many women are keen to return to work within two weeks of having a baby, but if the onus is on the employer to ensure that the employee does not return to work within this period, the employee cannot be pressurised to return to work immediately after childbirth and cannot be forced to bear any additional strain of having to assert her rights at such a busy and stressful time.
We do not intend to change this safeguard. It is a health and safety provision, applicable in circumstances where there is a real risk to women's health. We believe it is entirely right that women should be afforded the maximum protection during this time.
Amendment No. 246A seeks to ensure that a partial definition of "remuneration" is included in the Bill itself. The right to remuneration is the element of a woman's terms and conditions of employment which will continue during ordinary and additional maternity leave only if her contract provides for it to continue during this period. It is generally regarded as the monetary element of a woman's wages or salary, the element which is normally replaced by statutory maternity pay or maternity allowance.
The definition of "remuneration" is not easy, especially given the wide variety of remunerative benefits available to the workforce in a modern economy. The amendment lists three possibilities: childcare vouchers, luncheon vouchers and holiday stamps. I am sure that others would suggest more along similar lines, and we would be very reluctant to put such a precise definition on it at this stage, if at all. However, we are committed to consulting on this issue and will be in a better position to judge what the definition should be at the end of the consultation period. I hope I have clarified our thinking on these two issues, and in doing so, I hope I have persuaded the noble Baroness and the noble Earl to withdraw their respective amendments.
§ Baroness Miller of Hendon
I will accept the Minister's suggestion, and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 246A not moved.]312
§ 4.45 p.m.
§ Lord Meston moved Amendment No. 247:
Page 64, line 17, at end insert—
("() The Secretary of State shall make regulations entitling an employee to leave when a child is lawfully placed with that employee for adoption for periods and on terms and conditions (including remuneration) equivalent to those to which an employee would be entitled in the event of maternity.")
§ The noble Lord said: In paragraph 5.23 of the White Paper, Fairness at Work, the Government recognised that parents who adopt a child have no statutory right to take leave from work. They also recognised that adoption is valuable for society and also that adoptive parents have as much need as others to spend time with their children. In the same paragraph, however, they went on to say that the Government did not intend that adoptive mothers should have the same maternity rights as birth mothers. Other countries in Europe do provide paid leave for adopters and indeed a few firms in this country also do so. Presumably those employers who allow paid adoption leave recognise the importance of retaining staff who want to take time off for adoption purposes and recognise that only very few will wish to take advantage of the benefit offered.
§ They must also be taken to recognise the wider social value of adoption to the community, not to mention the cost benefits of taking children out of care and into permanent families. Apparently the Government's reason for distinguishing between maternity provision and adoption is simply that maternity provision exists to protect the health and safety of mothers and babies, which does not apply in respect of adoption. While it is true that there are health considerations underpinning maternity rights and benefits, that is a limited and insufficient justification, I suggest, for excluding adopters' equivalent rights. By the use of the word "equivalent", I do not argue for identical rights, but prospective adopters should not be discriminated against. Both natural and adoptive parents have to give that most valuable of all commodities to the children for whom they become responsible; namely, time.
§ The process of adoption is hazardous and demanding, even though the hazards and demands are not the same as those of maternity and natural parenthood. A successful adoption requires skilled preparation and prospective adopters have to go through rigorous procedures. Even if the adoption is uncontested, there is the requirement for a child to be placed with them for a minimum of 13 weeks. They are scrutinised, assessed and reported upon by specialist social workers and the child's guardian.
§ At the end of this process and transition period, they have to attend a court hearing. They may then need post-adoption support. Above all, they have to bond with the child and to settle and integrate him or her fully into their own household and family. There may be residual difficulties with the child's natural parents to contend with. In every case the adopters will have to devote time and energy to meeting a child's individual needs and to forming the attachment which is needed to make the placement work. If it does not work, not only are the adopters profoundly disappointed but the child is let down yet again.313
§ In this country there is a serious shortage of families willing and able to adopt. particularly those able to take on the children who are most in need of a stable placement within an adoptive family. They make considerable sacrifices to enter a long-term commitment with sometimes damaged children who have been let down by other adults, who all too often have been moved around within the childcare system. Some adopters do not always take on just a single child but may be prepared to take on siblings M order to give them a chance of being brought up together. The child or children they take on may have been abused and neglected, and will almost always be insecure after disruptive lives that most of us can only try to imagine.
§ It will help to encourage prospective adopters if those who are employed know that, apart from other sacrifices they may willingly make, they will not have to risk financial stress at an anxious time for the prospective adopters and at a critical time for the child concerned.
§ Adoption, as distinct from fostering, does not produce an automatic financial allowance. Suitable adopters are a precious and scarce resource. At present the adoption rate is falling and too many children remain in homes until released before they are adults, deprived of the family security which adoption would have provided.
§ This whole area of the Bill proceeds on the basis that loyalty to an employer need not conflict with loyalty to the family, while recognising that each can make demands on time and energy which have to be balanced and reconciled. Even if the adoption rate picks up, the proposal in this amendment will not affect many employers or employees. Those who would need or wish to take advantage of it will be far fewer than those who will claim the improved maternity rights given by the Bill. Those employees who make these sacrifices and commitments should not have to do so on unpaid leave or at the risk of losing their job. This amendment, or something like it, could do a great deal of good at minimal cost. The Government expressly claim to support families. By accepting the thrust of this amendment they will justify their claim. I beg to move.
§ Lord Sainsbury of Turville
I believe that adoption is valuable to society, and adoptive parents and their children of course need time to bond and adapt to their new circumstances. I recognise the situation the noble Lord describes, but we come from a slightly different direction.
The Bill marks a significant step forward by making it possible to establish for the first time a statutory right to parental leave for adoptive parents. The noble Lord suggests that natural and adoptive parents should be given parity in terms of maternity leave and pay. The maternity rights are designed to meet the specific needs of new and expectant mothers; they are special provisions, predicated on health and safety considerations specific to women who are about to give or have just given birth and for that reason are permitted under European equal treatment law.
The health and safety rationale does not apply in the case of adoption. Extending the rights beyond pregnant women, however deserving the case of an adoptive 314 mother of a young baby, could be discriminatory if men were excluded, and to cover fathers as well could raise other issues. I think that that highlights that the two situations are not directly comparable. I ask the noble Lord to withdraw the amendment. Meanwhile, we shall continue with our consultation on the parental leave regulations which we can tailor to the special circumstances of adoption which he mentioned.
§ Lord Meston
I am glad to hear the Government reiterate the recognition that adoption is extremely valuable and that time is needed for a successful adoption. I also accept that the parental leave provisions give some opportunity which does not exist at present. But parental leave, as I understand it, is not to be paid leave.
I sought to suggest that the health and safety rationale which underlies maternity leave—I do not pretend that it is comparable with the requirements for adoption—nevertheless is an insufficient reason for discriminating against those who wish to adopt. I do not seek to repeat those reasons.
In opposing the amendment I suggest that the Government underestimate the difficulties facing adopters and the value of adoption at this time when more and more children are being retained in the care system. Looked at from the point of view of the wider good of society, this amendment, or something like it, should be given serious consideration. I do not propose to press the amendment at this stage, but reserve my position for later stages of the Bill. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Miller of Hendon moved Amendment No. 248:
§ Page 64, line 23, at end insert ("who is related to the employee as either a natural or adopted child or grandchild or stepchild or whom the employee has been appointed to foster or of whom the employee is otherwise in loco parentis,")
§ The noble Baroness said: In moving the amendment, I speak also to Amendments Nos. 249, 250 and.51A to 254. This group of amendments relates to that part of Schedule 4, principally paragraph 76, dealing with parental leave, which the Government describe in the notes as "new". That is why it requires some tidying up.
§ The amendments can be explained simply. Amendment No. 248 inserts a definition at the end of paragraph 76(1)(b) of what constitutes a child. It includes a child who is related to the employee in very broad terms: a natural or adopted child; a grandchild or a stepchild; a child whom the employee has been appointed to foster; a child to whom the employee is in loco parentis. Those definitions cover every item which could come within any reasonable definition of a child. The last one, someone to whom the employee is in loco parentis, would take care of special cases coming within a well defined legal concept. It ensures that an employee cannot take advantage of the limitless definition contained in the Bill as drafted. For example, temporarily looking after a sister's child while she goes off on holiday, or a next-door neighbour's child while 315 she is in hospital, may be commendable and neighbourly but not at the employer's expense and inconvenience and possibly to the detriment of his business.
Amendment No. 249 makes clear that the parental leave is unpaid. This follows the assurance from the Government in the Explanatory Notes, on page 39 at paragraph 160, that,
the employment contract will continue in existence during parental leave and the terms and conditions of employment, other than remuneration, continue to apply".
§ That is stated in the notes. The amendment clarifies the provision in the Bill.
§ Amendment No. 250 alters sub-paragraph (4). Paragraph 76 states that the Secretary of State shall make regulations regarding the operation of parental leave. Paragraph 76(2) states that the regulations "shall" include provision about entitlement to parental leave and when it may be taken. Paragraph 76(3) states that the regulations "shall" contain certain provisions in the employee's interests. The word "shall" appears in all three cases. However, when we turn to the important sub-paragraph dealing with when the leave may be taken, it is entirely permissive as to whether there is reference to the child's age or on what date or event the entitlement starts. I believe that it is pointless to allow the starting date to be left up in the air. Unless the age or event is specified, someone could claim leave when their child is already in full-time schooling, or later. I shall return to that possibility later. As the earlier parts of the paragraph are mandatory, I believe that the short descriptive paragraph must be consistent, and likewise must be mandatory.
Amendment No. 251A has been slightly altered since it was first tabled as Amendment No. 251. It originally stated:
not extending beyond school leaving age".
That was due to a slip of the pen (or perhaps more accurately a slip of the keyboard) for which I apologise. The amendment now reads,
not extending beyond the child's 5th birthday unless the child has special needs".
§ Clearly, unless we put some cap on the closing date for parental leave, we may find that people try it on and attempt to take leave when the child is quite old enough to look after himself or herself to a certain extent. Why should an employer be burdened with parental leave when, for example, the child is 10 years old? The directive on parental leave puts a cap at the age of eight years. There is no reason why the Government should not follow suit unless they are planning to do even more gold plating—to which we shall come later.
I believe that it would be safer if the Secretary of State had some constraint in the Bill. In paragraph 159 of the Explanatory Notes the Government claim that sub-paragraphs (2)(b) and (4) will,
enable the regulations to set the maximum age … in respect of [when] parental leave may be taken".
§ Why should the Secretary of State not bite the bullet and tell us now what he may have in mind?316
Paragraph 159 of the Explanatory Notes states that the maximum age,
could be below 8 years, the upper limit specified in the Parental Leave Directive".
§ The phrase is "could be" rather than "will be." Since the Government appear to indicate that they might go for an age lower than eight, I take the liberty of suggesting a figure. That is why I propose the age of five. I think that eight is more in line with the school starting age for children on the Continent. If it is reduced in that way, I believe that it would reduce the burden on small and medium-sized enterprises.
§ Amendment No. 252 alters sub-paragraph (5)(e) so that as well as specifying the minimum period of parental leave, the regulation should specify the maximum. There can be no case for an open-ended entitlement. The Committee will have noted that sub-paragraph (5) is permissive. The Secretary of State may refer to various qualifying matters relating to parental leave, so there is no obligation on the Secretary of State to stipulate a minimum period of leave. However, if he does so, he should also specify the maximum. Fair is fair, as I said on earlier amendments, especially when the Government have claimed that they will be even-handed.
§ Amendment No. 253 is self-explanatory. When making his regulations, the Secretary of State should have regard to the needs of the employer and his business as well as to the wishes of the employee. That is no more than is allowed in the directive, as I shall mention on a later amendment. There is no reason why the Secretary of State should tie his hands or deprive himself of the right to take a very relevant factor into consideration when the directive unequivocally gives him some direction.
§ Finally, in this group, Amendment No. 254 modifies paragraph 79(1)(b), which empowers the Secretary of State to require employers to keep records. It does not say records about what, but I have to assume that it means when an employee has taken parental leave. I have proposed that records maintained for tax and other statutory purposes may be made use of. They may not be entirely sufficient on their own, which is why in my amendment I have simply stated "made use of'.
§ What we do not want is to have a requirement for another lot of form filling to be imposed on businesses, which is often a burdensome requirement for very small businesses. When I proposed a similar provision in the National Minimum Wage Bill as it passed through your Lordships' House, it was vigorously shot down by the Minister in charge. but, nevertheless, the regulations made under that Act specify that tax records may be used for the purposes of establishing the hours worked and the wages paid.
§ It is clear that the Government will follow the course proposed in the amendment sooner or later, so I believe that they could save a lot of time and make the change now. I beg to move.317
§ 5 p.m.
§ Lord Tebbit
I am minded to support my noble friend in these amendments. I do not wish to waste the time of the Committee by reiterating the arguments she made, but I wish to raise two issues which do not appear to he clear. I say "appear to be clear" because the Bill is enormously complex. That is because it is an intrusive Bill and many Members of both sides of the Committee believe that there is a degree of complexity, perhaps driven by the draftsmen and the lawyers, to bottle up every conceivable variation of circumstance and noble purpose. But, of course, they will fail. Sooner or later, someone will find something in this.
My question relates to the leave, which I understand is to be unpaid. How does it affect the employer's liability to contribute to pension schemes? Does the employer have to continue to make contributions? Where the employee's leave is unpaid, is he eventually at a disadvantage in the pension scheme if he does not make the contribution, despite the fact that he is not being paid during the period off work? How does it affect the entitlement to annual bonuses? Is it to be expected that the employer will be under some obligation to pay a full annual bonus to those who are taking leave under the provision of this Bill, which is unpaid? It would be helpful if the Minister could give us. as best he can, the answers to those questions.
§ Lord Sainsbury of Turville
This group of amendments focuses on the details of parental leave. I am pleased to have an opportunity to set out our thinking on these issues.
Of course, there is always a balance to be struck between clarity, for which we are striving, and covering the aspects in proper detail. In this regard, we have tried to meet the issue by establishing the principle and covering the more detailed aspects in regulations. However, I agree that it is always necessary to try to hold that balance.
I know that the noble Baroness raised many of these points out of her concern for the regulatory impact upon business. I can assure her that we take these matters seriously. My right honourable friend the Secretary of State for Trade and Industry has decided to take a new approach with the parental leave regulations. He intends to operate with a light touch and to place emphasis on encouraging employers and employees to agree between themselves the arrangements which best suit them.
The Bill reflects this approach by providing for collective and workforce agreements to "opt out" of the details of the regulations. Our intention is to set out the basic right to parental leave in the regulations and to provide a fall-back arrangement which will automatically take effect if employers and employees cannot agree on, or do not wish to make, their own arrangements. This approach has gained the support of both sides of industry. We shall be consulting further on the details of the fall-back scheme.
I now turn to some of the detail raised. What should be covered is a key question. Amendment No. 248 suggests that natural and adopted children, grandchildren, stepchildren, foster children and children 318 placed with other adults who are in loco parentis could and should benefit from those responsible for them being able to qualify to take parental leave. In doing so, it highlights the various family circumstances in which children grow up and underlines just how important parental leave could be to a large slice of the workforce involved in bringing up the next generation.
We are considering these matters very carefully. Our intention is to cover those responsible for caring for a child and for the Secretary of State to use the power set out in the Bill to specify what counts as such responsibility in the regulations. We need to arrive at a definition which is effective, but simple for employers to operate.
Amendment No. 249 is concerned to ensure that employers are free of any doubts that parental leave is to be unpaid. We are absolutely clear, and have been from the outset, that there will be no requirement for employers to pay parental leave. The Bill provides for that.
Unlike new Sections 71 and 73 of the Employment Rights Act, which appear in Chapter I of Schedule 4 to the Bill and relate to maternity leave, new Section 76, relating to parental leave, does not itself confer a right to leave. It provides for the Secretary of State to make regulations which will in turn provide for a right to parental level.
New Section 77, which appears on page 65 of the Bill, requires that these regulations should provide for an employee's terms and conditions of employment to continue to apply while the employee is on parental leave, although only to such extent as may be prescribed in the regulations. That covers the point raised by the noble Lord, Lord Tebbit, as to the balance between remuneration and other aspects of terms and conditions which will there be specified.
Further down the page, subsection (2)(b) of new Section 77 states that the terms and conditions that are to continue—except to the extent that regulations do not exclude this—do not include terms and conditions about remuneration. Accordingly, there is no provision for employees to continue to be paid during parental leave. Any requirement for employers to provide paid parental leave would require new primary legislation.
Broadly speaking, Amendments Nos. 250, 250A and 252 deal with matters relating to how and when parental leave should be taken, and I will cover them together. The Bill enables regulations to be made setting out how and when parental leave can be taken. For example, we can provide for parental leave to be taken before the child reaches a certain age, for it to be taken flexibly or in blocks, spread out over a period of time or concentrated in a shorter spell, the intention being to arrive at a scheme which will be manageable for employers while still giving sufficient flexibility to employees. There is power in the Bill for regulations to allocate the amount of parental leave which can be taken to a given period and to require it to be taken as a single block.
I am aware that some employers do not want leave to be taken in dribs and drabs of a day or two at a time. Others would have difficulties if a key employee wished to take 319 the whole three months at once. The important thing is that employers will have freedom to come to agreements with the workforce about these matters, either through collective, workforce or individual agreements.
On the specific matters raised by these amendments, our current thinking is to link entitlement to parental leave to the child's age or to a specific period of time starting, for example, from the adoption of a child. We do not envisage going wider than the criteria in subsection (4) of new Section 76 which Amendment No. 250 seeks to make mandatory. However, we believe that it is undesirable to rule out any option of doing so when we have not yet consulted on our proposals.
The Bill also allows for different provision to be made in different cases and we have been consulting the relevant agencies about the merits and drawbacks of varying the provisions in circumstances such as adoption or where there are special needs.
Amendment No. 252 would allow the regulations to prescribe a maximum period which may be taken as part of a period of parental leave. I have reflected upon that and consider that it could give us some useful additional options when drawing up the regulations. However, as drafted, it would require the regulations to set both minimum and maximum periods, which may not be desirable. We should at least consult on that. I hope that the noble Baroness will withdraw her amendment. This is the moment she has been waiting for. We accept the amendment in principle. The noble Baroness may miss her great moment if she is not careful. While she was talking, I was in principle accepting the point about the maximum. However, I made the point that we need to consult on the matter. On that basis, I hope that the noble Baroness will enjoy the moment and will withdraw her amendment so that the Government can bring forward a revised version on Report.
Amendments Nos. 253 and 254 seek to ensure that, in drawing up the regulations, we take account of the needs of business and, in particular, minimise the burden of record-keeping. The amendments set out important and sensible principles and I have described what our approach is to be.
Of course, we need to produce a set of fall-back regulations which are workable for both employers and employees. That is why we have worked closely with employers, including small employers, from the very beginning. The White Paper specifically sought views on the particular difficulties which small employers may face and how to alleviate them. Ministers have met representative employer organisations and will take careful account of their views. Employers have told us that they want record-keeping requirements to be kept to a minimum and we agree that it is a matter of good practice and common sense for them to draw on existing records where possible.
In particular, there are a number of provisions which will take account of the needs of business. For example, employers will be able to postpone parental leave where there are operational or business reasons for doing so. We shall ensure that the notice periods are adequate for the amount of leave requested; we shall aim to ensure that 320 record-keeping requirements, if any, are not unduly burdensome; and employers and employees will be able to make arrangements which are particularly suited to their circumstances.
We are giving a great deal of thought to the wide range of views on those issues. We shall use the scope provided in the Bill to produce a fall-back scheme which is simple, flexible and workable for both employers and employees and which can be followed where they do not agree different arrangements. We shall consult on our proposals. In the meantime, I hope that the noble Baroness will agree to withdraw the amendment.
§ Baroness Miller of Hendon
I am indebted to my noble friend Lord Tebbit for tapping me on the shoulder at the appropriate moment so that I did not miss the very good news about Amendment No. 252. I have had two good pieces of news today, although I know that one of those is not necessarily set in stone. That is too much for me to ignore.
I shall read carefully what the Minister said about Amendment No. 249. If I understood him correctly, it appears that there may not be a problem. The Bill may already provide that it is "unpaid." In view of that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments No. 249 to 250 not moved.]
§ [Amendment No. 251 had been withdrawn from the Marshalled List.]
§ [Amendments Nos. 251A to 255 not moved.]
§ Baroness Miller of Hendon had given notice of her intention to move Amendment No. 256:
§ Page 67, line 18, leave out from ("hours") to end of line 19 and insert ("on grounds of force majeur for urgent family reasons in case of sickness or accident making the immediate presence of the worker indispensable")
§ The noble Baroness said: I am slightly confused. In the circumstances, as my notes are together. I shall not move this amendment. I may return on Report to some of the amendments which have not been moved.
§ [Amendment No. 256 not moved.]
§ [Amendments Nos. 257 to 258A not moved.]
§ Lord Sainsbury of Turville moved Amendment No. 258B:
Page 70, line 5, leave out paragraphs 12 and 13 and insert—
("12. In section 88(1)(c) (notice period: employment with normal working hours) after "childbirth" insert "or on parental leave".
13. In section 89(3)(b) (notice period: employment without normal working hours) after "childbirth" insert "or on parental leave".")
§ The noble Lord said: I hope that by making that small concession we have not totally upset the noble Baroness's afternoon. However, we are grateful for the speed with which we have dealt with those amendments.
§ This group of amendments deals with some small technical but complex changes to the Bill. The first amendment in the group remedies a small defect in the current drafting. Under existing provisions, an employee who has given notice while on maternity leave is entitled to be paid during the minimum statutory notice period, 321 whether or not she was otherwise being paid while on leave and whether the maternity leave itself was statutory or contractual. That is in line with the treatment of notice in other cases where an employee may be on unpaid leave, such as sick leave. It ensures a minimum level of protection for an employee whose job is terminating and so underlines the purpose of the statutory notice provisions.
§ In line with that purpose, in Part III, paragraphs 12 and 14 of Schedule 4 are intended to extend the protection to employees who may be absent on parental leave during a notice period. In doing so, however, they have inadvertently narrowed the protection to those on statutory, as opposed to contractual, maternity leave. The amendment rectifies that defect.
§ Amendments Nos. 259 and 298 are related, so for simplicity I shall take them together. These are small technical amendments which take into account an amendment made to the Employment Rights Act 1996 by the Employment Rights (Dispute Resolution) Act 1998 which we had missed. Paragraph 21(2) of Schedule 1 to the 1998 Act inserted into Section 1 18(1)(b) of the 1996 Act a reference to a new Section 127A. This amendment takes account of that insertion in removing from Section 118(1)(b) the reference to Section 127, which the Bill repeals.
§ Section 127 deals with compensation due where a woman who qualifies for the statutory right to return during the period of 29 weeks after the end of her maternity leave is unfairly dismissed at or after the end of her maternity leave. The section is being repealed in consequence of the repeal of the other provisions of the Employment Rights Act relating to the right to return.
§ Amendments Nos. 260 and 299 are also related. Paragraph 46 of Schedule 4 provides for the omission of Section 227(4)(a) of the Employment Rights Act 1996 and the word "but" immediately following it. However, that is already achieved by means of Clause 31(1)(a) and so is unnecessary. Amendment No. 260 therefore omits paragraph 46 from the Bill.
§ As regards Amendment No. 299, the previous amendment left out paragraph 46 from Schedule 4 to the Bill because Clause 31(1)(a) already achieves the same effect. Lines 13 and 14 of page 90 of the Bill reflect paragraph 46 of Schedule 4 and are also unnecessary, hence Amendment No. 299 to remove them. Amendment No. 260A removes an inconsistency in the Bill. The Government gave an assurance in the other place that the regulations would be subject to the affirmative resolution procedure to allow further opportunity for proper scrutiny and debate, and the Bill was amended accordingly. However, the powers relating to detriment and dismissal remain exercisable subject to the negative resolution procedure. By making these powers also subject to the affirmative resolution procedure, we are ensuring that all the powers relating to family leave can be exercised in a single instrument so that users of the regulations can find them all in one place.
§ I commend the amendment to the House on the grounds that it aids both consistency and simplicity. I beg to move.
§ On Question, amendment agreed to.322
§ Lord Sainsbury of Turville moved Amendment No. 259:
§ Page 71, line 8, leave out from ("general)") to end of line 9 and insert ("omit ", 127"")
§ On Question, amendment agreed to.
§ Lord Sainsbury of Turville moved Amendments Nos. 260 and 260A:
§ Page 72, line 25, leave out paragraph 46
Page 72, line 29, leave out paragraph 48 and insert—
("48.—(l) Section 236 (orders and regulations) shall be amended as follows.
(2) In subsection (2)(a) after "order" insert "or regulations".
(3) In subsection (3)—
§ On Question, amendments agreed to.
§ Schedule 4, as amended, agreed to.
§ Clause 10 [Right to be accompanied]:
§ Lord Meston moved Amendment No. 261:
Page 5, line 11, at end insert (", and
(d) is to he permitted to take a written record of the hearing")
§ The noble Lord said: This is the beginning of a large group of amendments. I therefore wish to speak first to Amendment No. 261. Clause 10 provides for a worker's right to be accompanied in certain circumstances. The limits of that right will be discussed in relation to other amendments.
§ Clause 10(2) specifies that a person accompanying may address the disciplinary or grievance hearing and that he or she may confer with the worker during that hearing. The amendment modestly proposes that it should also be expressly stated that the companion may take a written record. The amendment is the product of too many hours in employment tribunals arguing about or seeking to establish what was or was not said during a disciplinary or grievance hearing.
§ These hearings can turn out to be of considerable significance in subsequent proceedings. Given the fallibility of human memory, there is no substitute for a good contemporaneous record. I recall one case in which a line manager would not allow an employee to take any sort of note of a critical meeting. I recall many more in which the employers had someone present taking a record which was later typed up and, later still, sent to the employee for agreement or comment even though that note was plainly inadequate. For example, a disciplinary hearing which lasted for well over an hour was reduced to a few short, inaccurate paragraphs. Yet that may be the only written record for appeal or tribunal proceedings which may take place months or even years later. The amendment would therefore add the taking of a written record to the list of the minimum things the worker's companion may do.323
Perhaps I may speak also to Amendment No. 266 within this group which stands in my name. The amendment provides that:
The provisions of sections 10 to 12 of this Act are without prejudice to the ability of an employment tribunal when appropriate in the circumstances of a case to hold that a worker has been unfairly treated—
§ Clause 10 is based on a number of assumptions which do not always apply in practice. First, it assumes that there is a disciplinary or grievance procedure established or adopted within the meaning of Clause 13(4). Secondly, it assumes that there is a union official or fellow worker who is willing and able to accompany the employee. Thirdly, it assumes that an official or fellow worker is the appropriate person to be there in the circumstances.
§ The new clause may be misunderstood as suggesting that in other situations it will not be necessary, or even desirable, for employers in the interests of fairness to allow other people to accompany the employee. In reality there may be situations in which the employee wishes or prefers to have present an interpreter, a relative or some other outside adviser. To give examples, in a non-disciplinary context when a dismissal on health grounds is being considered there may be a medical adviser who could be there. A disabled employee may want a carer to be there. Another employee may need to discuss or explain personal difficulties and he or she may reasonably not want those known about by other colleagues, but instead may want the moral support or practical assistance of a close friend or relation.
§ In other cases, if a disciplinary charge involves an allegation of criminal behaviour, a legal adviser may be appropriate. Even in the non-disciplinary context of potential redundancy, a legal or other adviser may be appropriate. I particularly remember a tribunal case involving a large employer intending redundancies who interviewed the potential candidates for redundancy. What the employees did not know was that the employers had a team of lawyers listening in the next room and, from time to time, one of the employment team would go outside and take advice. There may not be anything particularly sinister in that but it did not seem fair or open towards those whose jobs were in jeopardy.
§ The purpose of the amendment is to emphasise that there may be other situations outside the limits defined in Clause 10 and 13 in which it would be fair to permit the employee to be accompanied.
§ I recognise that the government amendment, Amendment No. 267, makes some changes to Clause 13. However, the word "directly" remains in the clause and I wonder what that word adds. I should also like to ask, if I may anticipate Amendment No. 267, whether internal appeals, after the initial disciplinary hearing, are 324 covered by the new wording. If so, would it not be better to say so clearly, and if they are not intended to be covered, why not?
§ I am also conscious that Amendment No. 266A, tabled by my noble friend Lord Mar and Kellie, also proposes a different version of Clause 13(4). In that context and in anticipation of what the Government might say, perhaps I may ask the Government: what is the basis for restricting the subject matter of a grievance as presently defined in Clause 13 to the performance of a duty by the employer to the employee? That is likely, in many cases, to be the problem, but the grievance will inevitably be defined by the aggrieved employee. It may not strictly concern the performance of a duty, especially if that phrase is to be narrowly construed. It may often concern the way in which the employer exercises a discretion. such as a grading, promotion or a location. Surely it would be sufficient to limit it to any grievance relating to the employment. Having said that, relative to several amendments, I beg to move.
§ 5.30 p.m.
§ Baroness Miller of Hendon
I should like to speak to Amendments Nos. 262 to 265 and Amendment Nos. 268 and 269 in the same group. The first four amendments relate to the same subject; namely, the right of an employee to be accompanied at a grievance or disciplinary hearing. Clearly, that is only right and proper. However, the provisions of the Bill produce a number of undesirable situations. A number of lobbying briefs I have received from employers' organisations show a considerable concern on the employers' side—not that their employees should be accompanied, but that they should be accompanied by a person with some trade union status or a colleague from the same firm.
Amendment No. 262 stipulates that the trade union official who may accompany the employee shall be a full-time union official. That does not exclude a shop steward employed by the same employer, who will be qualified as,another of the employer's workers",under subsection 3(b). The Bill as drawn enables a shop steward employed by one employer to accompany an employee employed by another employer. It is then not too much of a stretch of the imagination to find a shop steward who has gained a reputation as a successful advocate on behalf of employees being in constant demand to represent other employees. One might ask: what is wrong with that? Perhaps the employer of that shop steward will find himself constantly having to give him time off as a travelling advocate. As the Bill is currently drafted, that shop steward (or other person) may not suffer any detriment or be dismissed on account of his frequent absences from his workplace. That is a consequence of the wording,whether of the same employer or not",which Amendments Nos. 264 and 265 seek to rectify. Otherwise an employer will find himself having to subsidise this travelling advocate and possibly having to employ someone else in his place.
325 In fact, the provision about not suffering any detriment contained in Clause 12(1)(a) is in direct contradiction to what the Government said in paragraph 184 of the Explanatory Notes, which says,An employer will not, however, be required to pay his employee for time taken off to accompany another employer's worker".The Government have not implemented that promise. As drafted, the Bill would prevent the uninvolved third party employer from docking the advocate's pay for time taken off. My two amendments rectify that position.
Amendment No. 263 inserts another paragraph at the end of Clause 10(3). It provides that the union official shall be a member of a union actually recognised by the employer, if there is such a union. It deals with the problem which arises if the employer has recognised one union and then another union tries to get in on the act. The broad definition of,an official of a trade union",contained in Clause 10(3)(a) would pennit one union to attempt to intervene in a matter affecting a member of another union. That kind of attempted poaching can cause all sorts of inter-union strife, as we used to see in the past. We would not want the employer to be caught in the cross-fire.
I understand that a number of unions are equally concerned about this potential disruption to existing employer-employee relations and arrangements where an employer has reached a single union agreement giving a trade union exclusive individual and collective representation rights within what is called a "bargaining unit", as provided for by the Trade Union and Labour Relations (Consolidation) Act 1992.
I anticipate that the Minister may ask who may accompany an employee if no trade union official is available within the same workplace and there is no union recognised by the employer. In that case any union may he utilised by the employee. That is the difference. There is no reason why the employee should be left without an adviser if that is what he wants, but it means a totally uninvolved employer—an innocent bystander—would be drawn into a dispute involving another firm and possibly a competitor. The Bill provides for employees not to suffer detriment as a result of a grievance hearing, but in this Bill there is nothing to prevent an employer not involved in the dispute from suffering a detriment. That is another example of the imbalance of the Bill to which I have referred many times.
Before I speak to Amendments Nos. 268 and 270 I should like to comment on Amendment No. 261 moved by the noble Lord, Lord Meston. I support his amendment. The employer can have whomsoever he wishes with him and may even have a tape recording of the meeting. Obviously, therefore, the employee's representative must not be inhibited over any reasonable steps taken on behalf of the employee.
The Government's Amendment No. 267 is practically the same as our Amendment No. 268. They simply seek to ensure that the proceedings involving an employee at which he seeks to exercise his right to be accompanied at proceedings relate to a serious matter and not to some 326 trivial matter. I can certainly accept the Government's amendment, but for one fact. There is a reference to "a" worker and not to "the" employer, even though that distinction appeared in the original clause. I should like to be assured that we are not talking about the possibility of a formal hearing being demanded by one worker on behalf of another who may not even want to complain.
Amendment No. 269 is reciprocal to the Government's Amendment No. 267. If there is to be a hearing about some grievance of the employee against the employer, it has to be clear that it shall be in respect of some serious matter and not something petty. We and the Government both agree about the issues covered by Amendments Nos. 267 and 268. That being so I trust that the Government have no difficulty at all with Amendment No. 269. We have no objection to Amendment No. 270.
§ Lord Gladwin of Clee
Clause 10 of the Bill seeks to put into statute part of the ACAS recommendations that have been used for a number of years. The Code of Practice: Disciplinary Practice etc (1977) states that, "Disciplinary procedures should", and lists a number of issues. The one to which I want to draw attention is (g), which states,Give individuals the right to be accompanied by a trade union representative or by a fellow employee of their choice".Reference was made to that when the Bill was being debated on 9th February in another place when the Secretary of State, Mr. Stephen Byers, said,All individuals—regardless of the size of organisation for which they work—will be able to have someone of their choice represent them at a grievance or disciplinary hearing".—(official Report, Commons, 9/2/99; col. 132.)My concern with these amendments is that they seek to restrict that right. Amendment No. 262, as the noble Baroness explained, seeks to insert the words,who is a full time paid official of a union".Amendment No. 263 further restricts it by saying that if the company recognises a union, then the full-time paid official must be employed by that trade union. Amendments Nos. 264 and 265 seek to take away the possibility of other employees representing someone who is in the middle of either a grievance procedure or a disciplinary procedure.
An employee who is subject to a disciplinary procedure or is pursuing a grievance will need the most effective representation that he or she can obtain, particularly if it is a disciplinary issue where hi s or her livelihood is at stake. It is not necessarily a full-time paid official who will be the best person to represent that employee. In my experience it is often the local branch secretary or a lay official of the trade union who is far better equipped to represent an employee who is subject to a disciplinary procedure.
Many trade unions have very few full-time paid officials. They depend upon their lay elected officials to represent their membership when they go through either disciplinary or grievance procedures. Also, speed is important, particularly if it is a disciplinary process. I am bound to say that the availability of full-time officials is sometimes not immediate and so one has to 327 rely upon lay officials. There are circumstances where neither a fellow worker nor a full-time official would be the most appropriate person to represent an employee who was subject to disciplinary action or who was pursuing a grievance.
I can think of a number of circumstances, which are quite usual these days, where a manufacturer has a number of contractors on site who are there virtually permanently. The employee is often not represented, but he wants speedy assistance and will often go to the shop steward, the convenor, of the host site.
My objection to the amendments is that they restrain the right of an employee to be accompanied and represented at disciplinary and grievance procedures.
§ Lord Tebbit
I find myself in the slightly odd position of having to agree with an amendment put forward by the Liberal Benches. However, we have had a few concessions from the Government Front Bench, which makes it a kind of holiday, so we may as well double it. I support the sentiment behind Amendment No. 261, although I have some concerns about it.
I recollect saying when I was a lay official in my trade union, in a moment of irritation when we came to consideration of the minutes of the previous meeting which had been provided by the employer's secretariat, that the minutes of a meeting should represent the lies which were actually told and not the lies which people subsequently wished they had told. I carried that thinking through to my days as a Minister. I would frequently insist, before people left my office after a difficult meeting at which we thought conclusions had been reached, that the conclusions should be written down in an aide mémoire, and that we should all read them and agree that that is what we thought we had agreed before the meeting finally broke up. It is important for the avoidance of unnecessary future disputes.
Amendment No. 261 only refers to a written record of the hearing, and it might be implied that Parliament did not intend it to cover an electronic recording of the hearing. I should like to hear from the Minister whether that is likely. I have always found that lawyers say that if you include one bit of detail, there is an implication that the other bits, which might have been there but were not, are specifically excluded.
I also agree with the intention behind the other amendments, but I hope that they cannot be held to exclude a lay member of a union accompanying the person who is the subject of the disciplinary action.
I am still a member of the British Airline Pilots' Union. That union has very few paid officials. Most of the work is done, and done in my view much better, by lay members. I would not want to see in the legislation a situation whereby they were not allowed to represent and support a member who is appearing in disciplinary proceedings.
As I listened to noble Lords, it went through my mind that we should thank the Lord that the Government are not putting into law the marriage service. My goodness; just imagine the length of the schedules, the 328 amendments and the discussions as to the meanings! Indeed, it has worked rather well on the whole, and I do not think it would have worked any better if it had had 75 pages of legal jargon stuck on the end of it; nor will the Bill.
§ Lord McCarthy
It may be working very well, but it is being used less and less.
I hope that the Government will accept Amendment No. 261. As the noble Lord, Lord Meston, stated, frequently there is no agreed record of tribunal proceedings and no right of the representative of the employee to compile an independent record. The noble Lord, Lord Gladwin, read from a 1976 document, but that does not state that an individual worker has a right to a representative and that that representative has a right to write, nor is it found in a more recent publication, the employment handbook of ACAS. Most people with any real experience and feel for this subject would never deny the right of a worker to have a representative, nor would they deny the right of that representative to write and give their account. Perhaps the authors of these handbooks assumed that it was a natural thing. It is time that it was put into the law, and I hope that the Government will do that today.
§ Baroness Gardner of Parkes
I have sat for 20 years in an industrial tribunal. In theory, I agree that it is a good idea that the representative should take a note. I agree with the noble Lord, Lord Meston, that it would be helpful to the tribunal to have those notes.
However, a major problem is that if someone is slowly and laboriously scribbling away it will inhibit the proceedings and the flow and interchange. The noble Baroness, Lady Miller, suggested a tape recording which could later be transcribed. That is a good idea. In a number of hearings, verbatim reports have been prepared from tape recordings and there has been no argument about it. Where, however, people have different notes, very often those notes do not agree.
In my capacity as chairman of a charity, a case was brought against the charity which was very interesting because it was a very different experience from sitting and hearing cases. In that instance the employee flatly refused to sign any text of any meeting that we produced. She was very much a loner and refused to have anyone with her. We asked her to sign the note to say not that she agreed with it but that it was a correct record of the meeting. She would not sign anything because someone had told her not to sign anything. It was an impossible situation.
The most difficult situation occurs before commencement of the disciplinary or grievance procedure, for example when someone is called in for a general discussion about their affairs and is asked if they would like to bring someone with them. They automatically think that it must be really serious. Very often, what begins as a consultation between the two parties progresses to either a grievance or a disciplinary procedure. In those circumstances the meeting should be suspended and the resources that are set out here should 329 be offered. The transition between a general discussion on employment and the formal procedure is not fully covered in the Bill.
No matter how much detail you put down to cover these things, they never quite work in the way intended. Although every detail is here, there will still be something which will be defective. I would be worried about people taking notes in such a slow and laborious way because it would hold up proceedings. That is why I was hoping that there might be some agreement for having tape recordings, which could be transcribed later.
§ Lord Wedderburn of Charlton
Underneath many of the comments made by Members of the Committee is the question whether there must be a grievance or disciplinary procedure. As I understand it, the Bill does not go that far. Nevertheless, because we discussed this last year during the proceedings on the previous Bill on dispute resolution, the noble Lord, Lord Meston, will know that there is authority in the courts. I believe that the latest effusion was in 1995. However, it is possible that the Minister has some other authority or that he wants to get rid of it. I have in mind the case of Goold v. McConnell. According to the head-note, the Employment Appeal Tribunal held that the authority was,an implied term in a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance".There are also remarks about disciplinary procedures, but the case is not concerned with them directly. However, if that be right and, if, in a general sense, there is an implied term that the employee has a right to a grievance procedure, it is likely that the courts will go a little further. Indeed, at the end, the judgment says:The breach [of the contract] is the failure to provide or operate a proper procedure",and that was a continuing breach. There is talk about proper procedure and, obviously, in the next case one might predict that the nature of a proper procedure would be looked at by the court and that questions such as keeping a record would have some impact in that respect. I can imagine a case where a number of the elements of a grievance procedure addressed today might be taken further as a matter of implication in the contract of employment.
I am neither advocating nor speaking against this at the moment. I simply ask the question: will the new Bill operate side by side in the perspective of the Government, and indeed of other noble Lords who have spoken, with a set of clauses which assume that there is some kind of grievance procedure? Perhaps I may express an opinion and say that I do not believe that that is the most sensible way to proceed. We would perhaps have fewer clauses and paragraphs if we had a short section in the Bill which stated that there should be such procedures. Of course, that is a personal view, which the Government may well have considered and rejected. However, if they had rejected it, did they want in any way to obstruct the precedents, which are now bound to follow the Goold case of 1995?
§ The Earl of Mar and Kellie
As the last two speakers both touched on the substance of Amendment 330 No. 266A, which is tabled in my name, perhaps I ought to speak to it now. This is another amendment brought forward by the Law Society of Scotland and it has been trailed, with approval, by my noble friend Lord Meston.
The amendment sets out to clarify and extend what the Bill implies about disciplinary and grievance hearings. As presently drafted, the Bill would allow an employer who does not have a disciplinary or grievance procedure, or an employer with an informal procedure, to avoid responsibility under Clause 10. The amendment redrafts the Bill so that art employer who invites an employee to a meeting or to a hearing with the purpose of resolving a grievance or adopting a disciplinary procedure qualifies for Clause 10 purposes, irrespective of how the meeting was formally described. I believe that there is ambiguity here which needs to be removed from the Bill.
§ Lord Simon of Highbury
I should like to begin by thanking all Members of the Committee for agreeing to the grouping of these amendments, which has been most helpful. The right to be accompanied, a most important individual right, is tackled through Clauses 10, 11, 12 and 13, and we have been able to link all the issues involved.
However, perhaps I may make two or three points in introduction to the issue of the right to be accompanied. As noble Lords on both sides of the Chamber have stated, this is a crucial individual right and I am not suggesting in any way—nor, indeed, are the Government—that procedures within companies do not exist. In fact, about 90 per cent of companies do have procedures for grievances and disciplinary matters which permit accompaniment at hearings. We are talking about the minority which do not and the fairness of that position.
I should also mention that there is a very good provision already included in the ACAS code of practice on disciplinary practice and procedures in employment. I believe that the code works well for both employers and employees. It is a good balance and it is easy to follow. The effect of the clause is to give the code the force of law and extend it to cover grievances about serious issues. Although I am not strong on case law, I should like to point out to my noble friend Lord Wedderburn that I believe the code of practice runs in parallel with the Bill so that procedures exist which are parallel to the legal structures for actually sorting out matters, if I may put it in layman's terms. However, we may return to that debate.
I should also like to point out to the noble Baroness, Lady Miller, that we have taken care in these clauses to avoid imposing unnecessary burdens on employers. We are certainly not going to permit trivial or minor issues to come under the scope of the new right. Moreover, I should like to make it clear that there is no obligation on chosen individuals who are trade union representatives to accompany workers to disciplinary or grievance hearings. However, those who choose to do so and who are employed by the same person as the worker who is to be accompanied will have the right to be paid for time off in line with the existing provisions of the 1992 Act. There is no right to paid time off if the 331 accompanying person is employed by another employer. That is absolutely clear. We are staying with the terms of the 1992 Act, with which Members of the Committee are very familiar.
Perhaps I may speak, first, to Amendments Nos. 261 to 266. Amendment No. 261, which was moved by the noble Lord, Lord Meston, seeks to add to the permitted functions of the accompanying person set out in Clause 10(3); in effect, to permit the accompanying person to take a note of the hearing. That was supported by the noble Lord, Lord Tebbit, and by the noble Baroness, Lady Miller.
I can see that the Committee is anxious to ensure that the rights and responsibilities of individuals are made clear. There is nothing on the face of the Bill to prevent either party to a hearing from taking a written note of the proceedings. To do so is good practice. I dare say that there are cases where the record is neither totally honest nor totally complete but that is a matter of good or bad practice, if I may say so. We believe that the taking of a written record is a good practice. I dare say that it is practised at the majority of hearings already. We want to encourage the practice. However, I am sure the Committee will agree that the correct place to foster such practice is not on the face of the Bill but in the code of practice on this right. I refer to electronic recordings in this regard. The amendment, as drafted, would not cover that situation and that would entail us in a discussion of what exactly comprises a record. I do not believe it is right to discuss that on the face of the Bill although I readily concede that the objective that is proposed is a good one. We shall include it in the code of practice and give the appropriate advice. I hope that the noble Lord will agree that this is the best way forward and, on that basis, will withdraw the amendment.
I turn to Amendments Nos. 262 and 263 in the name of the noble Baroness, Lady Miller. The remaining amendments in this group seek to curtail the right of individual workers to exercise their right to be accompanied by their chosen companion—the word "chosen" is important—in matters serious enough to affect their livelihood. Under our proposals a worker can be accompanied by a fellow employee or a trade union representative employed by another organisation. As the noble Baroness made clear, Amendment No. 262 seeks to limit these outside trade union representatives to full-time officials only. The amendment, however, permits legal representation.
This issue has been debated in another place. I am glad of the support of the noble Lord, Lord Gladwin, and other colleagues. It remains the Government's view that such an amendment seeks to curtail a worker's right to be accompanied by his or her chosen companion. Few trade unions will have the resources to assign a full-time official to accompany every worker who wishes to be accompanied. Therefore, if there is no local lay representation—the noble Lord, Lord Tebbit, made a strong point with regard to lay representation—a union member would be unable to draw on the services of his union to help him. Both the employer and the worker stand to lose as a result because—as I think the noble 332 Lord, Lord Tebbit, implied—they would lose the experience and expertise that a union representative would normally bring to a hearing. It is important that that flexibility is conserved.
I know that the noble Baroness will probably say that she had a choice in mind; namely, a lawyer. While we are keen to provide good work for lawyers and to establish the right representative to accompany a worker in the situations we are discussing, I am worried about an increasing tempo of legalism in this area. We are trying to keep the matter as open and as flexible as possible. I know that it could be in the worker's interest to be accompanied by a lawyer but—
§ 6 p.m.
§ Baroness Miller of Hendon
There is no mention of a lawyer. Amendment No. 262 states,who is a full time paid official of a union".
§ Baroness Miller of Hendon
There was an amendment on the matter which was withdrawn. There is nothing about a legal representative.
§ Lord Simon of Highbury
That just shows how much I was "scarred" by the thought of having legal representation when that was unnecessary. I am extremely pleased that the noble Baroness has put me right.
§ Lord Wedderburn of Charlton
Does my noble friend agree that such research as has been carried out shows that involving a lawyer in a procedure does not increase the amount of legalism? On the contrary it is lay people in many cases who are suggested as being the culprits—if they are culprits—in these situations.
§ Lord Simon of Highbury
I am now disinclined to give an opinion because I was talking to an amendment that has been withdrawn. Perhaps this is a rabbit hole down which I should not go at the current time. However, I shall be happy to debate it at a later stage.
§ Lord Meston
Before the noble Lord continues I should say that in a sense I partly jumped on the bandwagon when I suggested that there were a few circumstances in which a lawyer might be appropriate, particularly where the employee concerned is charged with a serious criminal matter which is dealt with, first, in the employment context but is likely to proceed to a criminal court. In those limited circumstances there may 333 be scope for him or her to be accompanied by a lawyer rather than someone else. I hasten to say that I do not seek extra work for my profession.
§ Lord Simon of Highbury
I thank the noble Lord for those comments. I think we can all agree that none of us wants lawyers to become involved unless that is absolutely de rigueur.
§ Lord Simon of Highbury
I am sorry; I withdraw that remark. Before I completely alienate a whole sector of this great community, I pass hastily on to Amendment No. 263. In tabling Amendment No. 263 I believe that the noble Baroness seeks to place further constraints on the category of permissible trade union representative. The amendment seeks to limit representation to a union recognised by the employer pursuant to this Bill; that is, under Schedule 1.
The amendment would deny many union members the right to be accompanied by an official of their own union and probably by any union official. One of the employment relations changes introduced by the previous government, which we have not sought to amend or repeal, is the right to belong to a union of one's choice. Members of the Committee opposite will know that simple membership of a union confers certain rights and services. Therefore, the right for individual workers to be accompanied in disciplinary and grievance hearings by a fellow employee or trade union representative of their choice underlines an important aspect of union membership.
It is frankly a little odd for the party opposite to seek to undermine that legislation—legislation with which this Government fully agree—by saying that where a worker is a member of a union, which is not the recognised union, that worker may not be accompanied by a representative of his or her own union. It is not realistic to expect that worker to be accompanied by an official of another union. The worker may not wish that official to accompany him or her and the recognised union may be unwilling to support workers who are not its members. Therefore, the net effect of the amendment is to take away potential support. The amendment seeks to limit the category of union membership available in terms of support in these circumstances.
§ Lord Tebbit
I am grateful to the Minister for his comments. In many ways I am inclined to agree with much of his argument, particularly that part which he does not wish to pursue which may tread on the corns of those in the legal profession. However, that is another matter.
As regards the matter we are discussing now, a number of employers now have single union agreements. They have been encouraged so to do by governments. What happens if there is a single union agreement and an employee wants to bring in someone from an outside union? Is that conducive to good industrial relations? I should have thought it was likely to cause dissent and concern.
§ Lord Simon of Highbury
The right we are trying to enshrine in the Bill is the choice of the employee. Normally, if a single union plant is involved, I imagine the employee would choose one of his own union members and that person would be a fellow employee or a full-time union official. However, I do not think that we should remove that choice. The matter is in the eye of the beholder. I think back to the complexity of the noble Lord's earlier argument and how he approved of the current form of the Marriage Act. It is a wonderful Act but I believe that there is still some concern about whether the word "obey" comprises a stand part clause. All of us will view the word!, that are used in different ways.
§ Lord Tebbit
This is another consequence of a Bill which intrudes so deeply into the workplace in legislative form. We may be setting up here something which is in conflict with what has previously been regarded as a rather good way of managing industrial relations; namely, to have a single union representing all members of the staff. I draw that danger to the attention of the Minister. I do not expect him to say that the Government have thought of a way round that, but I think there is a problem here.
§ Lord Simon of Highbury
We shall consider that point. However, essentially this is a hypothetical case and we must think about what happens in practice. I hope that codes of practice, good practice and the partnership between employers and unions, particularly in single union plants, will enable people to resolve these problems efficiently.
I turn to Amendments Nos. 264 and 265. The noble Baroness continues to direct her attention to the matter of the trade union representative and how to confine that, as it were. It is often the case that a worker's trade union representative is not employed by the same employer as the workers he represents even though there are single union plants in many areas.
Union branch structures are often very complex, covering more than one employer. So are corporate structures. Many employers can work from tie same premises as separate employer divisions of a particular company. It is therefore possible that a worker and his lay representative do not have a common employer. As I said earlier in the debate, the lay representative—perhaps a branch secretary—may be the obvious and best choice as the accompanying person, as the noble Lord, Lord Tebbit, underlined in his valuable contribution. The Bill enables such individuals to perform this function if they wish without fear of detriment or victimisation.
These amendments seek to remove the certainty of such protection. In effect, Amendment No. 26.4 opens the way for employers to penalise workers who help others in exercising a statutory right. Rather more difficulty attends Amendment No. 265 because it opens the way for employers to dismiss such workers. Both amendments allow employers to penalise individuals for carrying out their legitimate trade union functions.
Both amendments reduce the likelihood of workers being accompanied by experienced trade union officials. In our view, that is not likely to help either the 335 employers or the employees and is likely to lead to more cases going to tribunals. I urge the noble Baroness to consider that matter and to withdraw her two amendments.
Perhaps I may now turn to the amendment of the noble Lord, Lord Meston, Amendment No. 266. This amendment would insert a new clause into the Bill after Clause 12. The clause would enable employment tribunals to hold that a worker has been unfairly treated if he was not permitted to be accompanied at any hearing by some other suitable person, regardless of whether he falls within the provisions of Clause 10(3) as written. The clause will also allow a tribunal to deem that a worker has been unfairly treated if his employer failed to provide any disciplinary or grievance procedure.
Although I believe the amendment has a supportive intent, I fear that far from supplementing and clarifying the provisions on the right to be accompanied, a clause of this kind would at best cast doubt on the clear existing provisions of Clauses 10 to 13; at worst it would probably present tribunals with a very real interpretative problem. The amendment is widely drafted and can have only one effect, which is to contradict the provisions of Clauses 10 to 12 by forcing every employer to establish a grievance and disciplinary procedure and to allow accompaniment at any hearing, whether or not the matter related to employment and regardless of how minor or trivial. It would also give power to tribunals to ignore the provisions of Clauses 10 to 13 and to decide on a case-by-case basis whether accompaniment should have been permissible.
Far from having a clear guide to their obligations under law, employers, workers and tribunals would be placed in a state of some confusion. That is undesirable as an outcome. At present the core aspects of the right to be accompanied are very clearly defined on the face of the Bill. The Government have made clear, both here and in another place, their intention to supplement the Bill's provisions in this area with a code of practice.
It is not the Government's intention to force employers to establish procedures. Neither this Bill nor the Employment Rights Act require an employer to have a disciplinary or grievance procedure—although, in a company with more than 20 employees, the latter requires that the employees have the right to be informed of any disciplinary rules and procedures in their initial statement of employment particulars. But there is no necessity to have an official procedure. Nor does the legislation require an employer who has a procedure to follow it and to invite workers to hearings.
If the noble Lord's concern is that employers who do not adopt procedures will be able to treat their workers unfairly and get away with it, I can assure him that his concern is unfounded. I am sure that the noble Lord is aware that tribunals take a very dim view of employers who do not try to resolve disputes internally. Employers who do not operate any procedures—I have said already that, from our consultations, we believe that 90 per cent do—may be much more vulnerable to claims of unfair dismissal and the infringement of other employment rights. Happily, most employers operate grievance and 336 disciplinary procedures. Both sides of the House agree that that is very good employment practice. In framing this legislation, it is the Government's intention to build on good practice.
The effect of the Bill as currently drafted will be to encourage the further expansion of written procedures, but I am not sure that we will go as far as the breadth of this amendment. I hope that having heard my reply, the noble Lord will agree to withdraw it.
Perhaps I may now turn to Amendments Nos. 266A, 267, 268 and 269, which are concerned with the subject matter of disciplinary and grievance hearings. I will deal first with the amendment tabled by the noble Earl, Lord Mar and Kellie. This amendment has one simple aim: to ensure that the right to be accompanied applies to all disciplinary and grievance hearings without limitation. The result would be that precious few circumstances would be left where workers could not insist on accompaniment.
I do not know whether the noble Earl believes that workers should be able to insist on accompaniment at counselling interviews or exploratory meetings to discuss what are potential performance or disciplinary issues. We believe that that would cause disruption and inconvenience for managers. Having to permit and arrange accompaniment every time they wanted what I used to call the "Would you like to drop along to the study for a quiet word about this problem" meeting would make things a lot more difficult to organise. We all know that meetings along the lines of "A quite word" or "A word in your shell-like" are quite commonplace. I am sure we would all agree that it is a sensible way for managers, following ACAS advice, to deal with problems effectively at an early stage. I do not think that there is a need for the law to regulate every encounter.
The Bill achieves a sensible balance by ensuring that the right will apply only where a hearing could lead directly to an action taken against the worker. We have taken a similar approach in circumscribing the kinds of grievance that would fall within the scope of the right. We need to think through the consequences of widening it into more trivial or minor issues. I agree with the noble Lord, Lord Tebbit, that once we open up the definitions from the very tight ones in Clauses 10 to 13, a situation which is difficult to manage could develop.
It is not our intention to oblige employers to permit accompaniment hearings which do not form part of a procedure; we do not want a free accompaniment system; it is not our intention to permit accompaniment at hearings without the immediate threat of disciplinary action; nor is it our intention to permit accompaniment at grievance hearings where no statutory or contractual duty exists. Therefore, having framed it in as tightly and balanced a way between employers and employees as we can, I would ask the noble Lord to reconsider the matter and withdraw his amendment.
Perhaps I may turn now to Amendment No. 267, which I will move subsequently. The Government's point was made earlier when it was mentioned en passant by the noble Lord, Lord Meston, when he was speaking to Amendment No. 261. The Government have looked again at the wording of subsection (4)(a) of the 337 clause which sets out the disciplinary hearings to which the right is to apply. We now come to the point of "directly" and "appeal". The right is to apply to hearings which,could result directly in the employer administering a formal warning to a worker or taking some other action in respect of him".The Government are concerned that that wording might not permit a worker to be accompanied to appeal hearings. At the very least, we believe that it would open the way in its current form for lawyers to argue that it did not in certain circumstances allow appeal to be valid. The Committee is aware that appeals often occur after the disciplinary action has already been taken against a worker, and the appeal concerns upholding the decision to discipline the worker.
In those circumstances, it does not necessarily follow that the action will be taken as a direct result of the appeal hearing. Consequently, disputes might arise as to whether the appeal hearing met the criteria laid down in subsection (4)(a), and hence our changing of the clause to remove what I believe is an unwelcome ambiguity from the face of the Bill. For that reason I shall subsequently move the amendment.
I now turn to Amendments Nos. 268 and 269. They relate respectively to the meanings given by the Bill to disciplinary and grievance hearings. The rights will apply taking account of Amendment No. 267, to disciplinary hearings. That is the point of the words,confirmation of a warning issued or some other action taken".That wording is clear and precise. It ensures that the right extends only as far as oral hearings in the course of disciplinary procedures at which the individual worker is required to be present and which could result in action being taken against the worker. In other words, counselling interviews and exploratory talks are excluded, as are trivial matters. I think it can be said that this amendment now handles the position of appeal and that it speaks in many ways to the issues put to me by the noble Baroness, Lady Miller, relative to her own submission on that point.
I turn briefly to Amendment No. 269. I am sure that it was the noble Baroness's intention in tabling such an amendment to add to the clarity of the face of the Bill by expanding on the form of words in subsection (4)(b). No doubt the noble Baroness believes that the existing wording is too wide and too vague and wishes to narrow the scope of the right considerably.
The form of words that we have used on the face of the Bill ensures that the right to be accompanied at a grievance hearing applies only to legal duties owed by an employer to his workers; that is, to his statutory, contractual or other legal duties, including potentially tortious duties. It does not involve any loose or informal obligation that the employee might feel is owed to him, such as the use of a particular space in the company car park—although in my experience that takes up a great deal of time. I believe that our wording achieves that purpose. I hope that the noble Baroness will be happy that our redefinition covers Amendments Nos. 268 and 269.
338 That brings me finally to Amendment No. 270, which is concerned with contracting out of the rights conferred by Clauses 10 to 13 of the Bill. We have had many discussions on the issues. I am sure that we are all agreed that the right to be accompanied is a very important individual right. Indeed, my noble friend Lard Monkswell underlined that at Second Reading, when he referred to Clauses 10 to 13 as, "the parts of the Bill that will bite most effectively". I am grateful for his support in those terms.
But it is precisely because of the importance of this right to individuals that the Government consider it necessary to protect the right from restrictions on contracting out. The right to be accompanied is one of the few stand-alone rights in the Bill. In other words, unlike the majority of the Bill's provisions, Clauses 10 to 13 do not amend either the 1992 or the 1996 Act. Both Acts contain sections which effectively prohibit persons from opting out of their provisions or from waiving their rights to bring proceedings thereunder. The Government believe that it would be wholly undesirable to leave this key right unprotected from such restrictions on contracting out. We must ensure that individuals, especially the vulnerable, do not inadvertently or by coercion sign away their rights under these clauses.
The purpose of Amendment No. 270 is to close off that possibility. It does so by inserting a new clause into the Bill to ensure that this key individual right attracts the appropriate protections. The new clause achieves that by tying Clauses 10 to 13 of the Bill to the provision in the Employment Rights Act 1996 which limits the ability to contract out. I beg to move.
§ Lord Gladwin of Clee
Before my noble friend sits down, will he clarify a remark that he made? I understood him to say that 90 per cent of employers had disciplinary and grievance procedures, and that that had been established by consultation. I am bound to say that, given the experience that the noble Baroness, Lady Gardner of Parkes, and I have had on employment tribunals, on the Employment Appeal Tribunal and in industry, it is a very surprising figure. I am interested to know where it came from.
§ Lord Simon of Highbury
I thank my noble friend for his interest. First, I hope that Hansard will be right, in that I said 90 per cent of firms have established procedures. We have discovered that through consultation—not by consultation. In other words, the procedures are not achieved by the process of consultation; they may be, but that is not what I said. We believe, through consultation—talking to the CBI, looking at surveys, talking to union representation—that the level is something like 90 per cent representation of those procedures within companies. But if there is an element of doubt in my noble friend's mind, I am happy to give him the basis on which I made that statement. I have usually learnt to trust my officials when I speak at this Dispatch Box and I am not going to desert them now.
§ Lord McCarthy
Before the Minister sits down, the Government have said several times during the course 339 of the passage of the Bill that there will be a code of practice. What kind of code will it be? There is the 1977 code of practice on discipline, and there is the 1987 ACAS advisory handbook, Discipline at Work. Will the code of practice cover the whole of discipline, both in this Bill and in other legislation; will it replace the 1977 code; or what?
§ Lord Simon of Highbury
The intention is to enhance the existing ACAS code on disciplinary matters.
§ Lord Meston
It is my intention to withdraw the amendment. We have had a useful debate on the rather slender back of Amendment No. 261. In the course of that debate, I have obtained a remarkable achievement in securing the support not only of the noble Lord, Lord Tebbit, and the noble Baroness, Lady Miller, but also the noble Lord, Lord McCarthy, altogether.
The amendment was based on a practical consideration, as the noble Lord, Lord Tebbit, identified; namely, that if it is at all possible there should be a prompt, accurate, agreed note of what takes place during these important hearings. I should not wish to stop electronic tape recordings being used as a matter of good practice. The purpose of the amendment is to suggest a minimum rather than a limiting factor. Of course, that will not rule out, as the noble Baroness, Lady Gardner of Parkes, said, the sort of squabbles with which she and I are all too familiar, even if there is a tape recording. I have taken part in a case in which the authenticity of a tape recording was the subject of lengthy squabbles. The Minister said that there is nothing to prevent a note being taken, but there is nothing to permit a note being taken either. It is important that it is laid down either on the face of the statute or in guidance.
The noble Lord, Lord Tebbit, suggested that it is possible to legislate too much and that the Marriage Act would be overburdened by too much prescriptive legislation. I spent a great deal of my professional life considering the validity of marriages. The noble Lord is right that one can legislate too much. The English Marriage Act provides that a man may not marry his grandmother; the Scottish Marriage Act provides that a man may not marry his great-grandmother, which suggests that perhaps the Scots are either very cautious or adventurous. I am not sure which.
My amendment was not in any way intended to constrain the important new provisions in Clauses 10 and 13. The noble Lord, Lord Gladwin, spoke about amendments to constrain. I hope that he did not include my amendment in his remarks.
As to Amendment No. 266, I understood, as I believe did the noble Lord, Lord Wedderburn, that the provisions were intended to give only partial statutory effect to the case of Goold. As the Minister said, the right to be accompanied can be absolutely crucial. I did not intend in Amendment No. 266 to cast any doubt on the utility of Clauses 10 and 13 or to force employers to have a procedure where one does not exist, although we all agree that it is good practice to have it. Towards the end of his remarks the Minister said what I thought 340 he would say; namely, that in effect Amendment No. 266 was unnecessary. On that basis, I certainly do not intend to press it. However, I suggest that, although the Government have sought to improve Clause 13 and its width of application to disciplinary proceedings, there is still a case for some extension of the scope of the grievance hearings to be covered. That is perhaps something to which we need to return at a later stage. Meanwhile, I beg leave to withdraw Amendment No. 261.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 262 and 263 not moved.]
§ Clause 10 agreed to.
§ Clause 11 agreed to.
§ Clause 12 [Detriment and dismissal]:
§ [Amendments Nos. 264 and 265 not moved.]
§ Clause 12 agreed to.
§ [Amendment No. 266 not moved.]
§ Clause 13 [Interpretation]:
§ [Amendment No. 266A not moved.]
§ 6.30 p.m.
§ Lord Simon of Highbury moved Amendment No. 267:
§ Page 7, leave out lines 40 and 41 and insert ("administration of a formal warning to a worker by the employer, the taking of some other action in respect of a worker by the employer or the confirmation of a warning issued or some other action taken, or")
§ On Question, amendment agreed to.
§ [Amendments Nos. 268 and 269 not moved.]
§ Clause 13, as amended, agreed to.
Lord Simon of Highbury moved Amendment No. 270:
After Clause 13, insert the following new clause—