Clause 24 - Extension of protection against detriment for union membership etc.
Employment Relations Bill
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
I am grateful to the hon. Gentleman for giving us the opportunity to answer his concerns, although he is perhaps confused about the reasons behind what we have done in the Bill; I shall return to those later.
The hon. Gentleman asked when we could expect the outcome of the employment status review. As he knows, the consultation took a long time, and there were more than 400 responses. It is a complex issue, involving the various descriptions of workers and the jobs that they do, as well as issues such as the employment rights of the clergy. It is a detailed issue, but we are making good progress and expect to be able to explain our position on employment status shortly. There has been consultation with the trade unions, the TUC and the employers on the definitions. The hon. Gentleman was right to raise the issue, although he was wrong about what we are trying to achieve.
Clause 24 relates to the Wilson and Palmer judgment. As the hon. Member for Gordon said, our law breached article 11 of the European convention on human rights, which relates to the freedom of association. It relates specifically to the rights against detriment, which are provided for in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. Currently, section 146 applies only to employees, and the clause will ensure that workers, not just employees, benefit from those rights.
The reasoning of the European Court of Human Rights is based on the rights of trade union members, who can be employees or other categories of worker. In complying with the Court's judgment in the Wilson and Palmer case, we need to ensure that our improved protections for trade union members cover all such persons to the largest possible extent. Clause 23 ensures that the new rights that it contains not to be offered inducements apply to workers. Correspondingly, clause 24 extends the coverage of the existing rights not to suffer detriment on grounds of trade union membership and activities to workers.
Detriment can, of course, take the form of dismissal, and our amendments to section 146 will ensure that workers who are not employees can make a complaint under that section when their contracts are terminated. However, there are explicit protections against dismissal on the grounds of trade union
membership and activities in section 152 of the 1992 Act. In common with the rest of unfair dismissal legislation, those protections apply to employees only. To avoid duplication and possible confusion, we need to ensure that employees cannot use both sections 146 and 152 to make a complaint about dismissal. We achieve that in subsection (5) by making it clear that employees cannot use section 146 where detriment takes the form of dismissal. It may help if I mention that such provisions are used in other measures giving workers a right not to be subjected to detriment in relation to the termination of their contracts, and such measures have not given rise to difficulties.
For the present purposes, the definition of the term ''worker'' is that given in section 296 of the 1992 Act. I cannot be categorical about the types of person who might fall within that definition; that will depend on the precise facts of a case and ultimately will be for tribunals to decide. However, I can confirm that the Act's definition covers the vast bulk of agency workers and persons on fixed-term contracts.
Taken together, the effects of the clause are sensible and fit neatly with the important provisions of clauses 23, 25 and 26, allowing us to meet our international obligations.
Question put and agreed to.
Clause 24 ordered to stand part of the Bill.