New clause 7 - Dismissal after end of protected period
Employment Relations Bill
9:30 am
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
I beg to move, That the clause be read a Second time.
I welcome the hon. Member for Huntingdon (Mr. Djanogly) to his new and improved position on the Front Bench. I look forward to his contribution this morning.
On Second Reading, the Secretary of State for Trade and Industry announced that the Government would come forward with an amendment in Committee concerning protection for employees taking official lawfully organised industrial action. New clause 7 fulfils that commitment. The Employment Relations Act 1999 introduced major new protections in that area. As a result, dismissals are unfair if they occur in the first eight weeks of such protected industrial action, or if they occur after the end of that eight-week period but the action had ceased within it.
As the Committee will recall, clause 21 amends the law by discounting lock-out days when calculating the eight-week period. However, the protections under the 1999 Act have an important second leg, which is often overlooked. A dismissal is unfair at any time if the employer has not taken reasonable procedural steps to resolve the dispute that led to the taking of industrial action. New clause 7 concerns the protections under that second leg.
The current provisions relating to such protections are found in section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992. The obligation on the employer to take reasonable procedural steps is contained in subsection (5)(c).
Subsection (6) of section 238A then lists a number of matters towards which regard must be had when determining whether reasonable steps have been taken. Those include the issue at subsection (6)(c) and (6)(d) of whether either the employer or the union had refused an offer to use the services of a conciliator or mediator.
Such provisions are in place to encourage parties to try to resolve the dispute. The effect of subsection (6) is to ensure that the actions of both the union and the employer can be taken into account when assessing whether the employer has done enough in procedural terms to resolve the dispute.
The review of the Employment Relations Act 1999 brought renewed attention to that area of the law. Many respondents referred to the Friction Dynamics case, where the employer was perceived to have used various tactics to undermine the intentions of the law. In particular, the employer agreed to go to conciliation but did little or nothing when conciliation meetings took place. Indeed, the main employer representative reportedly left a key conciliation meeting after 30 minutes or so to go shopping. In other words, the employer showed contempt for the process, paying lip service to what he thought were his legal obligations.
We do not want to see any repetition of such behaviour by another employer or, indeed, by a union. Therefore, we wish to set out in greater detail in statute what obligations follow when parties agree to use the services of a conciliator or a mediator. Conciliators and mediators perform similar functions, but there is an important distinction between their roles. Conciliators facilitate discussion between the parties. They do not make recommendations to resolve either the procedural or substantive issues in dispute. In contrast, mediators are entitled to make non-binding recommendations to the parties about the dispute. In the context of these provisions, the mediator might make recommendations about the further procedures that the parties could use to resolve the dispute.
New clause 7 works by inserting through new paragraph (e) of subsection (6) of section 238A new matters to which the tribunal is to have particular regard when the parties have accepted that the services of a conciliator or mediator will be used. Those matters are detailed in subsections (2) to (5) of new section 238B. Those subsections set out the essential actions that the parties should take to demonstrate that they have properly engaged in the process. I will go through them in turn.
The first, set out in subsection (2), is the issue of whether the person who attends conciliation or mediation meetings on behalf of the employer or employees is an appropriate person. Clearly, it would not be acceptable for employers to send along junior employees of no standing to be their representatives. However, we recognise that the most senior person may be unable to attend all meetings themselves, especially if the organisation is a large one.