Employment (Northern Ireland) Order 2003

HL Deb 14 October 2003 vol 653 cc840-7

8.10 p.m.

Baroness Ambos

rose to move, That the draft order laid before the House on 8th September be approved.

The noble Baroness said: My Lords, I beg to move that this House approve the Employment (Northern Ireland) Order 2003, a draft of which was laid before this House on 8th September 2003.

The Order in Council is designed to assist in resolving employment disputes and to improve the operation of the tribunal system in Northern Ireland. It introduces a set of statutory minimum procedures that parties will be obliged to follow before a dispute is dealt with by either an industrial tribunal or the Fair Employment Tribunal (Article 15 and Schedule 1). The procedures comprise a straightforward series of steps; namely, a written statement or grounds for disciplinary action, a meeting to discuss the issue and an appeal process.

The new dispute resolution procedures are aimed at encouraging early dialogue between employer and employee in the workplace, with a view to resolution without resorting to the tribunal system. However, where the procedures fail to resolve the matters at issue, the tribunal system needs to be capable of continuing to process meritorious cases judicially and fairly. That is achieved first by improved case management and secondly by the imposition of reasonable penalties (Parts 2 and 3). These may be imposed on those bringing misconceived or hopeless cases, on representatives who behave inappropriately and where there has been a failure to follow the statutory procedures. Tribunals will, therefore, be able to focus attention on cases most meriting their attention.

The order also provides for the use of questionnaires in equal pay cases (Article 30) and sets out statutory rights to paid time off for trade union learning representatives (Article 31). All of those provisions correspond to measures introduced in Great Britain by the Employment Act 2002. They have been the subject of extensive public consultation in Northern Ireland, which elicited a very positive response. Members of the Northern Ireland Grand Committee warmly welcomed the draft order when they debated it in July this year.

In conclusion, the employment order is a balanced package aimed at improving employment relations. It aims to ensure that tribunals are better placed to handle cases which cannot be resolved in the workplace and to give them an expeditious and fair hearing. I commend the order to the House.

Moved, That the draft order laid before the House on 8th September be approved.—(Baroness Amos.)

Lord Glentoran

My Lords, first, I welcome the noble Baroness, Lady Amos, to the Dispatch Box on what I believe is her first occasion as your Lordships', and the Government's, spokesman on Northern Ireland. Suffice it to say—I am sure the noble Baroness will not mind me saying this—I wish it were otherwise. Having said that, I assure her that she will have the co-operation and support of me and my party in dealing with Northern Ireland affairs. In this House in recent times we have not played party politics with Northern Ireland. We have striven to reach agreement as to what is the best way forward for the people of Northern Ireland. There will be times when we shall disagree, and that also I hope she will accept. Certainly, we shall accept that.

I now turn to the order. I welcome it in principle. It certainly brings Northern Ireland a step further forward. It closes certain gaps between legislation in Northern Ireland and the United Kingdom. I welcome the advances in dispute resolution. Having spent nearly 30 years in manufacturing industry at one level or another and, at the end, at a fairly senior level, anything that can improve dispute resolution must be right.

One key issue about the order is that it creates a time space in which dispute resolution can and may have a second opportunity for—if I may put it like this— resolution at the coal face on the shop floor, which I am sure that your Lordships will agree is the right place. Tribunals are all very well, but any dispute between management, employees and trade unions that can be solved at the works will always lead to a better future for that business.

I am slightly concerned about the trade union learning representative. I certainly do not challenge the idea or concept, but I turn to the order. I have not read the order in great detail; I have actually skipped it all; although I have read Hansard from the other place and understand from the officials whom the noble Baroness agreed should brief me earlier on this matter—I thank her and them for that—that it has been through Committee in the other place; so it has been well scanned.

What I do not like—and do not like in legislation per se—is a Bill being enacted that creates a position that is not really defined. As I understand it, the learning representative is not defined in any way. Will the noble Baroness assure me that that provision will be covered by codes of practice of some sort? Depending on the size of the business, whether it is a five man business or a 10,000 person business—perhaps in Northern Ireland that is too high; the last time that I looked the largest employer was employing about 5,000 people— there is a difference as to how much time and what sort of emphasis should be placed on a trade union learning representative.

On the other end of that, I also wonder what other situations will be opened up. If you have a learning representative, he will be selling learning and education to the workforce—with which in principle I have no argument—but in due course its members will say to him, "I work my 39", or 38, "hour week; I do 10 hours of overtime and"—and, as some of my some of my workforce do, "I enjoy my shooting on Saturdays", and so on. "When do you expect me to go and do some more education?" I can see that evolving into employees wanting time off for education or employers being forced to give time off for trade union members to go on education courses of their own.

I say. "Of their own", because most companies— most sensible companies—are always striving to improve the education and standards of skills—in whatever field: be it engineering skills; computer skills; or whatever. I should be interested to hear a little about how the Government see the learning representative transmitting his role into the workforce and the workforce transmitting that into reality in today's world at no cost to small business.

That brings me to my last concern, which Jane Kennedy covered reasonably well in the other place: there should be no on-costs for small businesses as a result of the order. I should like confirmation of that if the noble Baroness can provide it.

However, in principle and overall, we support the order as a whole.

Lord Shutt of Greetland

My Lords, I, too, welcome the Lord President, the noble Baroness, Lady Amos, to her role as Government spokesperson on Northern Ireland. The late Lord Williams of Mostyn certainly made Northern Ireland a special place within his portfolio of interests. I hope that the noble Baroness will follow his approach of inclusiveness and consulting and speaking to everyone who followed Northern Ireland affairs in the House. I hope that that way of working will continue as we all strive to solve the difficult issues in Northern Ireland. My colleagues and I wish the noble Baroness well in that work. We offer the support that we can give from time to time in trying to solve some of those difficult issues.

I welcome the order. There has been much consultation on it. We were promised further consultation on a code of practice. Consultation is all about conciliation on the substance of the order. I am delighted that this is one area on which what is being done in Northern Ireland will mirror the approach in the rest of the United Kingdom.

Lord Rogan

My Lords, I congratulate the noble Baroness, Lady Amos, and wish her every success in her new position as Lord President and Leader of the House. I welcome her to the Northern Ireland scene. I declare an interest as the owner and director of several Northern Ireland companies.

Businesses throughout Northern Ireland, and the Ulster Unionist Party, generally support the provisions of the Employment Order. Fair and effective mechanisms must exist to deal with disputes in the workplace; after all, a happy workplace is a productive one. Apparently, the number of industrial tribunals throughout the United Kingdom has tripled in the past five years. We must do all that we can to avoid getting into a situation where every grumble and disagreement ends up at a tribunal hearing. Tribunals do not make for happy or productive workplaces.

We welcome the statutory dispute resolution procedures, set out in the order, to be followed by employers and employees. They will go a long way to enhancing the possibility of resolving disputes without resort to a tribunal or the courts. Furthermore, by cutting out unnecessary and trivial hearings, the dispute resolution procedures will also represent a significant saving to businesses and the public purse.

I welcome the inclusion of the award of costs provision, which will continue to be the principal defence against vexatious claims. Although we recognise that reasonable time off for trade union learning representatives will be of significant benefit for individuals, their union colleagues and the workplace environment as a whole, the notion of "reasonable time" is vague. As the noble Lord, Lord Glentoran, mentioned, we must ensure that that provision does not put any undue strain on the resources of small employers who cannot afford continually to shoulder the absence of employees.

The Ulster Unionist Party shares the concerns of the Labour Relations Agency about the effect that the introduction of a fixed time limit will have on how the agency offers and resources the individual conciliation service. The agency foresees significant practical difficulties in providing an effective conciliation service within such a tight timescale. Will the relevant documentation and key witnesses, for example, be available in a short period of time? Moreover, we are also concerned about the costs to small business, especially when other costs are being imposed on the small businesses of Northern Ireland, such as the huge increase in employers' liability insurance.

The Labour Relations Agency is also concerned that its code of practice on disciplinary and grievance procedures, which is universally accepted and acknowledged as representing good practice, was not fully considered by the Government. Do the Government intend to retain the standards contained in this code of practice? In conclusion, we are happy to support the order and hope that the Government's ambitions in introducing it will be satisfied.

Lord Brooke of Sutton Mandeville

My Lords, I also take pleasure in the noble Baroness the Lord President undertaking responsibility for Northern Ireland affairs in your Lordships' House. It is a compliment to the Province that she undertakes those responsibilities, but I join my noble friend Lord Glentoran in his implicit tribute to the late Lord Williams of Mostyn for his conduct on Northern Ireland affairs in your Lordships' House, which I am sure the whole House would agree was exemplary.

I have a curious personal pedigree in these matters of Northern Ireland legislation in fair employment. In 1989, I succeeded my noble friend Lord King of Bridgwater, whose legislative package during his time as Secretary of State included the 1989 Fair Employment (Northern Ireland) Act. By chance, the Lords amendments being taken to that Bill in the Commons during the summer of 1989 occurred during a curious week when my noble friend Lord King remained the Secretary of State for Northern Ireland before becoming secretary State for Defence. The then Secretary of State for Defence, the late Lord Younger, could not give up office until he had concluded entertaining the first Russian Minister of Defence ever to visit this country. I therefore sat on the Front Bench in the other place in my former role while my noble friend Lord King dealt with your Lordships' amendments to that Bill.

My second involvement was rather more direct. I chaired the Select Committee on Northern Ireland Affairs in the other place in the last Parliament, and, in 1999, we undertook a review of the working of the Fair Employment (Northern Ireland) Act at the time of its 10th anniversary. I recall the view of Ken Livingstone who was then a member of the Northern Ireland Affairs Select Committee, who confessed that he had originally thought that the 1989 Act had simply been a sop to critics of prior practice. He acknowledged that in the ensuing decade it had made a real difference.

As the late Lord Williams of Mostyn used to remind us, the role of this House in the scrutiny of orders during the time that the Assembly is suspended is an important one in substitution for the Assembly. Because of that emphasis, I have a greater interest in the Explanatory Memorandum than in the order itself as a guide to the reactions in the Province to the substance of the order. Paragraph 11 on page 13 of the Explanatory Memorandum refers in detail to the four consultations that have taken place—one by the Department for Employment and Learning in conjunction with the Office of the First Minister and Deputy First Minister and the other three issued by the Department for Employment and Learning.

The first three consultations clearly took place while the Assembly was, in principle, sitting, culminating in the fourth consultation, which took place between April and June this year—which indicates that, by that time, there was no chance of the Assembly playing any role because it had been suspended. Paragraph 6 on page 2 of the Explanatory Memorandum describes a favourable reaction overall to the four consultation documents within the Province, as the noble Baroness said in moving the order.

Against that background, I turn to paragraphs 20, 24 and 26, on pages 14 and 15 of the Explanatory Memorandum. I have two questions and a comment. My first question is about paragraph 20, which deals with the equality impact assessment. Line 5 states: This should help to reduce the growing pressure on the tribunal system, further assisting those with substantive cases to secure justice". I should be grateful if the noble Baroness could say a word about the "growing pressure" to which the Explanatory Memorandum refers and, especially, about the scale of the problem.

I have a comment, rather than a question, on paragraph 24. Line 5 states: Small business will see a particular impact as this sector's common lack of detailed disciplinary and grievance procedures has made it particularly vulnerable to a tribunal system that places considerable weight on process. This group"— small business—

"will be a net gainer". On the basis of the Select Committee's report on the first 10 years of the working of the Fair Employment (Northern Ireland) Act 1989, I can recognise the potential truth of that observation and of that conclusion.

My last question relates to paragraph 26 of the Explanatory Memorandum. My noble friend Lord Glentoran raised the question of how learning experience would be secured. I use that word to embrace the total process. Line 5 of that paragraph says: Employers will incur costs in terms of paid and unpaid time off amounting to perhaps £0.5 million a year, but they should see benefits in the form of increased productivity, innovation, job satisfaction and thus retention". My question about the paragraph relates in particular to the reference to "increased productivity". The memorandum states that employers should see benefits in the form of increased productivity. I would be interested to know the basis for the Government's confidence in that increased productivity. In general, the Government, despite their best intentions and their best efforts—I pay tribute to both—have had some difficulty raising productivity in the past six years faster than the previous government did over the prior six years. Overall, I join my noble friend Lord Glentoran in welcoming the order.

8.30 p.m.

Baroness Park of Monmouth

My Lords, I have no questions about the order. I merely wish to take the opportunity to join everyone else in warmly welcoming the noble Baroness the Lord President of the Council to the Northern Ireland scene. I know that she already has some knowledge of the Province, and I hope that she will be able to spend time there. I also hope that we may look forward to meeting the Secretary of State with her and under her auspices, as we did in the past, from time to time, under her very great predecessor.

Baroness Amos

My Lords, first, I thank all noble Lords who have spoken and have welcomed me so warmly to the Northern Ireland portfolio. I entirely share the sentiments expressed with respect to the late Lord Williams of Mostyn. He was a very special person.

I was a regular visitor to Northern Ireland in a previous job. I look forward to working with noble Lords on Northern Ireland. I assure noble Lords—in particular, the noble Lord, Lord Shutt of Greetland— that I will carry on the practice followed by my predecessor of bringing noble Lords together for regular meetings about Northern Ireland issues. I welcome the comment made by the noble Lord, Lord Glentoran: it is not the politics that matter, it is the future of the Province.

Several specific questions were asked about the order. I shall try to answer them. I appreciate the welcome given to the order around the House. The noble Lords, Lord Glentoran and Lord Rogan, asked, in the context of time off for union learning representatives, who will decide what "reasonable time" means? Practical guidance on what constitutes "reasonable" will be provided by a code of practice. The current Labour Relations Agency code on time off for trade union duties and activities has worked well and has reduced the scope for disagreement. It may require to be revised to reflect the new right to paid time off for union learning representatives.

The noble Lord, Lord Glentoran, also asked whether there was an inference that employers would be required to give employees paid time off to pursue learning activities. The answer is "no". It is entirely a matter for discussion between employer and employee as to whether the learning activities covered by paid time off were in the employee's own time. In respect of the question about costs for small employers, the assessment of the regulatory impact of the proposals confirms that the projected costs to Northern Ireland businesses would be minimal.

The noble Lord, Lord Rogan, asked a wider question about the burden on small employers. The order aims to ensure that by adopting very simple and straightforward procedures employers will be able to resolve an increased number of disputes internally, thereby avoiding the expense of tribunal proceedings.

With respect to the noble Lord's question about how long the fixed period would be, that is a matter for the regulations. It is envisaged that the regulations will set a maximum length, which could be in the region of three months. It is an area for discussion with the Labour Relations Agency and it is one on which the department would wish to consult.

As regards the Labour Relations Agency's concerns about resourcing, also raised by the noble Lord, Lord Rogan, in a debate in another place on 17th September, my honourable friend indicated her willingness to meet with the agency to discuss any concerns. I can confirm that a meeting has now been arranged for 12th November.

The code of practice on disciplinary and grievance procedures was raised by the noble Lord, Lord Rogan. The standards laid out in the current Labour Relations Agency code of practice continue to represent good practice. However, the new statutory minimum procedures are aimed particularly at small firms which may have few or no procedures in place. The department will be working closely with the agency over the coming months to ensure that the code of practice is revised to reflect the new statutory minimum procedures.

The noble Lord, Lord Brooke, asked specifically about pressure on the tribunals system. The number of applications to industrial tribunals rose by more than 60 per cent between 1991 and 2001, while applications to Northern Ireland's Fair Employment Tribunal went up by a staggering 185 per cent in the same period. I appreciate that in certain cases recourse to a tribunal is the most appropriate means of addressing a problem, but they spend a great deal of time on cases where no attempt has been made to resolve the issue in the workplace. That is why the dispute settlement procedure is one we are promoting.

On the question of increased productivity, I hope that noble Lords will agree that a more skilled, talented and well-educated workforce is better placed to increase work output. However, I entirely accept the point behind the question posed by the noble Lord, Lord Brooke, about how we are going to measure that. If I can find out any more information, I shall come back to the noble Lord. That covers the questions I have been asked. I commend the order to the House.

On Question, Motion agreed to.