Clause 38 - Failure to give statement of employment particulars, etc.
Employment Bill
6:30 pm
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
Clause 38 requires employment tribunals, when an employee has successfully complained about the breach of another employment right, to consider whether the employee was given a written statement of employment particulars by his employer. If not, or if the statement is incomplete or inaccurate, the tribunal must increase the compensation; alternatively it must award compensation if the relevant jurisdiction does not allow compensation or the tribunal has not chosen it as a remedy. A mitigation of between 5 per cent. and 25 per cent. is applied.
It is at this point that matters become complicated. Subsections (4)(a)(ii) and (4)(b)(ii) refer to
''a statement purporting to be a statement''
under that section, which means the relevant section of the Employment Rights Act 1996, or
''a document capable under section 7A of that Act . . . of performing the function of such a statement''.
Those final words relate to the earlier phrase
''a statement purporting to be a statement''
in that section. Section 7A of the 1996 Act refers to a document, either a contract of employment or a letter of engagement, capable of performing the function of a statement purporting to be a statement under the Act. It is not necessary to add the words
''purporting to be a document''
in either case, as amendments Nos. 80 and 81 propose. The hon. Gentleman is right; he is doing his job, which has forced me to re-examine the clause. I took another Nurofen as a result, but I am satisfied that the clause relates to the 1996 Act. As in the previous amendment, we have agreed that the contract of employment and the letter of engagement can be written statements. That makes it easier for small businesses because they do not have to produce a third statement.
Amendment No. 82 is different from, although correctly grouped with, the other amendments. We have deliberately not limited compensation to occasions when an employer's breach of the written statement requirements is relevant to the matter complained of by the employee, but such would be the effect of amendment No. 82. The clause allows the tribunal to vary the award and it would be free to relate that to the effect of the employer's breach. It would be wrong to restrict tribunals to awarding compensation only when there is such an effect.
The written statement is a key document in clarifying the relationship between employer and employee, and in helping to avoid workplace disputes. If a dispute prompts an employee to complain successfully to a tribunal and it is found that the employer has not met his written statement obligations elsewhere, the employer should incur some penalty regardless of whether the breach is material to the case being heard. I am therefore unable to agree to the hon. Gentleman's amendment and I hope that he will withdraw it and not press the rest of the group.