Employment Bill

– in the House of Lords at 8:22 pm on 11th June 2002.

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Consideration of amendments on Report resumed on Clause 32.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 8:34 pm, 11th June 2002

moved Amendment No. 73:

Page 37, line 45, leave out "may" and insert "shall"

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, in moving Amendment No. 73, I shall speak also to Amendment No. 74. My noble friends and I do not much like Clause 32, nor does the Law Society, as we have heard. In fact, it has said that the clause should be deleted and the purpose of their recommendation is to prevent the exclusion of claims where applicants have failed to take specified steps under the statutory procedure. My noble friends and I have not gone that far. I hope the Minister will agree that we have tried to be constructive. We have tried to make the clause more user-friendly.

Amendment No. 73 is a simple amendment. It seeks to delete "may" and substitute "shall", thus committing the Secretary of State to specify by regulation that subsection (4) should not apply in a particular matter. Subsection (4) seeks to prevent claimants raising cases with a tribunal.

Amendment No. 74 is extremely important. Subsections (2), (3) and (4) specify situations in which an employee may not present a complaint to a tribunal. The three subsections all relate to the requirements in paragraphs 6 and 9 of Schedule 2. They state that the employee must set out the grievance in writing and send a copy to the employer. Paragraph 6 relates to the standard procedure and paragraph 9 to the modified procedure.

As we have heard in relation to previous amendments, other conditions relate to time limits, a matter that has already been dealt with by my noble friend Lord McCarthy. Those conditions appear absolute. Subsection (5) appears to give the Secretary of State the ability to make regulations that may stipulate that those conditions shall not apply in relation to a particular matter, but the employment tribunal itself appears to have no powers.

My amendment gives the employment tribunal power not to apply subsections (2), (3) or (4) if that appears just and equitable to it. It appears to me that that is sensible. The employment tribunal is the specialist body concerned. It has experience of dealing with past cases. There may well be situations in which it is fair and reasonable not to insist precisely on the requirements of Schedule 2. The workforce in the UK, as we have known, is becoming increasingly multi-ethnic. Of course, we want such workers to become fully integrated, but there may well be problems of language and culture. Such people need assistance but it may not always be readily forthcoming. Therefore, it seems sensible to give the employment tribunal power to override some legislative requirements such as those in Schedule 2 where it seems fair for it to do so. I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, Amendment No. 73 deals with the regulation-making powers in subsection (5) of the clause. Those powers are designed to give some discretion to the tribunals when applying the third admissibility criterion, which is defined in subsection (4). The third criterion deals with the case where an initial application has been made within the normal period for making applications but has failed one or both of the first two admissibility criteria. As we have stated repeatedly, we want to give such individuals another chance to make an admissible application. Such individuals will need extra time to carry out the necessary steps. In some cases, this will carry them beyond the three-month period for making applications to tribunals.

We intend to allow for that by using the powers in Clause 33 to extend the time limit for making applications to tribunals. However, we wish to place some modest pressure on applicants to start using the relevant grievance procedure at an early point; otherwise, memories of the circumstances surrounding a case fade and the chances of sorting out a problem diminish. We therefore specify at subsection (4) that the employee should have taken the step 1 action no later than one month following the normal period for making applications to tribunals. In most cases, that will mean four months.

Generally speaking, that should not be difficult for employees to achieve. However, there may be some circumstances where it would be unjust or unfair to apply the third criterion rigidly. For example, the tribunal may take some time to decide that the initial application was inadmissible. Indeed, that decision may not be taken within the four-month period. The regulation-making power at subsection (5) provides the flexibility which tribunals need to deal with such cases. The regulations would define the types of situation where the tribunals should consider waiving the third criterion.

Amendment No. 73 would make it a duty on the Secretary of State to introduce such regulations. We have inserted various order-making and regulation-making powers throughout Part 3 of the Bill. None places a duty on the Secretary of State to introduce orders or regulations. I cannot see any reason to depart from that approach in this case. It is highly likely that regulations would be introduced. But there is no need to pre-empt the outcome of consultations with interested parties by imposing a requirement that regulations must be introduced. I hope that goes some way to satisfy my noble friend Lady Turner.

Amendment No. 74 gives a wide power to the tribunals not to apply the admissibility criteria in individual cases if they consider it "just and equitable" to do so. Such powers might be appropriate if we did not allow for special cases within the admissibility regime. But the clause already contains a variety of regulation-making powers allowing the Secretary of State to specify how the criteria could be applied to different cases.

We will use those regulation-making powers to identify the circumstances where the criteria can in effect be waived or modified to meet special circumstances. In devising the regulations, we will of course be trying to deal with special cases in a just and equitable way. For example, we can use the powers to deal with the position of disabled people who cannot write. Of course, it will be a matter for the tribunals to decide how the regulations apply to individual cases.

I should remind noble Lords that our proposed use of regulation-making powers has been accepted as justifiable by the Delegated Powers and Regulatory Reform Committee. We therefore do not need a further over-arching power giving extra discretion to the tribunals to decide whether to apply the criteria. That would create extra uncertainty and undermine the purpose of our proposed regulations. I hope that in the light of my explanation my noble friend will feel able to withdraw her amendment.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I am obliged to my noble and learned friend for his explanation, but I am not at all happy about it. I do not understand why the amendment should import extra uncertainty to the present situation. I do not understand why it should not be possible to give employment tribunals the powers to deal with the situation under subsections (2), (3) and (4). Those subsections are of great importance to the applicant because they provide the basis on which he will not be able to get the case to the tribunal.

The tribunal is the appropriate body to say whether subsections (2), (3) or (4) should apply. I do not believe that our proposal would add extra uncertainty to what is not a happy situation anyway. I pointed out at the beginning that we do not particularly care for Clause 32 and we are not alone in that view. However, in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 74 not moved.]

Photo of Lord McCarthy Lord McCarthy Labour 8:45 pm, 11th June 2002

moved Amendment No. 75:

Page 38, line 9, at end insert—

"( ) The Secretary of State shall make regulations specifying complaints to which this section shall not apply which shall include complaints connected with discrimination on grounds of sex, race or disability, and of violence, intimidation, bullying, redundancy and collective grievances."

Photo of Lord McCarthy Lord McCarthy Labour

My Lords, we are still on complaints about grievances. This is a probing amendment in the sense that you probe where you do not believe you will gain any concessions but you would like to find out what the Government have to say.

No doubt we shall be told that we have done it before. It is another attempt to get the Government to define why they want to exclude certain types of grievance from the restrictions on access in Clause 32. We are hoping to discover some numbers. Seventy-five per cent of hearings are on grievances. It is a dominant part of the tribunals' work. Are the Government going to exclude 10, 20 or 30 per cent? They must know. How much exclusion will there be? Perhaps the Minister would say what proportion of the various types of grievances will be excluded.

Sometimes the Government talk as though when we see the regulations governing these provisions, a type of grievance will be totally excluded; it may not go anywhere near a tribunal. Sometimes they suggest that there may be an element of discretion, although where is left unclear.

Most of all, we are hoping for some principles on the logic of why the Government have put in barriers to access, then taken certain—as yet not completely specified—types of case out, or why they say that they will do so when the regulations are made. Why do they take some out and leave some in, and why have they not said a word about certain other types?

We tried previously to obtain Government comment. We tried, in framing our amendment in Committee, to look at what people had said; for example, the Minister in the Commons made frequent references to certain possible types of grievance that might be excluded. He said that minimum wages and harassment grievances and routes to resolution might not be covered. He said that exclusions might come about on reasonable grounds, mentioning bullying or intimidation as reasonable grounds for not applying the limitations on access.

In Committee, we sought to collect everything that had been said on the Internet and by Ministers. We wrote it all down: violence and intimidation; race; unlawful wage statements; and collective grievances. So as not to make the amendment negative, at the end we added any other exclusions decided by the Secretary of State.

But in Committee, my noble friend Lord McIntosh did not help us much. He said on 25th March:

"It is our intention to be sparing in setting exemptions. As we have argued with other amendments, most employees should have little difficulty in fulfilling their obligations under this clause . . . we need to ask ourselves what special grounds may arise where it would be unreasonable to expect an employee to set out his complaint to the employer a little earlier".

Of course, that is just setting out his complaint, not the 28-day wait. He continued:

"We think that there will be some special cases"— here comes another list—

"The threat of violence or other forms of serious harassment fall into this category. We do not want to force employees to raise a grievance as an individual complaint, if it has already been addressed as a collective issue by a union"— so he takes on board what we say about unions. He continues,

"That is the second broad category. We intend to cover these two main categories of exemption in the regulations. There may be others which it would be sensible to add. For example, the amendment about interim relief may raise the need to exempt a particular set of cases. However, we cannot accept that the scope of the exemptions should be drawn as widely as this amendment implies. If we followed this approach, an exemption could be claimed in a large proportion of cases"— which is the nearest we get to figures.

"It would mean that the admissibility regime would never apply, for example"— here are some specific exclusions from exclusions—

"to any cases involving race or sex discrimination. It would seriously diminish the purpose of the clause".—[Official Report, 25th March 2002; col. 351.]

That seems to suggest that you have to put the big ones in.

My noble friend Lord McIntosh seems to be saying, "Out violence, harassment, collective bargaining and interim relief"—they will not be covered by the restrictions on access; no race and sex cases. Disability does not seem to be featured anywhere.

We are still asking for some sets of principles. The Minister has failed to say what other kinds of discrimination will be out or in, or why they will be out or in. Nothing has been said about disputes over terms and conditions, about failures to consult on redundancy, transfers and so on. But he did say something rather Delphic at the end—at least, he could have said it in a Delphic manner but it could have been that Hansard was misbehaving at the time. It was not the fault of Hansard; there were problems with the machinery when we were upstairs. He said:

"If there is any opportunity to compare the matters which I have listed as being exemptions we are prepared to accept with the list in this amendment between now and Report stage"—

I could not quite follow that—

"I should be very happy to do that".

But I am not clear what it was.

"If that means that we should be putting an agreed list"— that sounds good—

"or a list which is acceptable to the Government, on the face of the Bill in this form—in other words, as a constraint on the regulation-making power—I am prepared to consider that as well".—[Official Report, 25/3/02; col. CWH 351.]

I should like to know whether that has been considered. We welcome the possibility of being asked to put forward a list; we welcome the possibility of discussing an agreed list.

At the end of the intervention of the noble Lord, Lord McIntosh, I asked him about principles. He said:

"One could explore the possibility of looking for principles, but looking at this list"— that is the list in our amendment—

"and looking at the things which the Government intend to put into the regulation— so somewhere they have got a list—

"I am not sure that I can see a principle behind them".

So the Government do not have any principles. Where do you get the ones you put in and the ones you take out if you have not got any principles?

I said:

"Here we have a Bill with no principles. The Minister said that, not me".—[Official Report, 25/3/02; CWH 352.]

At that point I withdrew the amendment. We are putting a list in our amendments—it may be the wrong list—but the Minister seemed to be saying that.

My final question is to ask desperately whether there is any logic to this; whether there is any kind of sense. I have looked at the main headings of grievances in the ES annual report. The Government seem to be saying that they are not going to apply the access procedures to violence, harassment, collective bargaining or interim relief. However, it seems that they will put in race and sex. They leave in a kind of limbo wages cases, breach of contract cases, redundancy pay, working time, equal pay, minimum wage, disability and discrimination cases. I ask again: what is the guiding set of factors, if not principles, that the Government will use to move matters in and out of the procedure? I beg to move.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, in supporting the amendment I shall speak especially to the issue of collective grievances.

The Government earlier adopted the most welcome position of putting on the face of the Bill the general principles on which the right to be accompanied will be accorded. They are not leaving the issue—as they previously insisted that they must—to regulations. In my submission, that same principle applies, in particular, to what are sometimes referred to as "collective grievances".

In terms purely of exposition of the subject of employment law, it is often convenient to divide individual rights from collective rights or collective grievances. But that is, in a sense, formalistic. Individual grievances relate very often to groups of workers and, although they are expressed in law as individual grievances, they frequently relate to grievances which are felt by a group of workers. Therefore it is a matter of basic principle when one introduces this fundamental division into an Act of Parliament to tell the House something at least about what it means. Of course the petty details may be dealt with in regulations, but not to tell us anything about how the division is envisaged borders on negligence or idleness.

In another place, my honourable friend Mr Alan Johnson repeated this on many occasions. He said, for example,

"We also intend that in cases where fewer redundancies arise"— that is, fewer than 20—

"and the matter has been dealt with as a collective issue between the employer and the union"—

Schedule 2 shall not apply. The matter has been dealt with.

He then said:

"Nor do we envisage that the statutory procedures should be used when the issue has been handled as a collective process".

I take it that those words were carefully chosen; not "could be handled" but "has been handled".

He then said:

"We do not want to duplicate the process and force employers to go through a procedure several times when the issue is collective".—[Official Report, Commons, Standing Committee F, 18/12/01; col. 180.]

That is a different formulation. The issue is collective in concept; in a sense, it is a platonic idea of the collective process.

He went on at col. 181:

"If there were a collective issue about the absence of a proper catering facility and the union was addressing that collectively with the employer, it would be unfair . . . to insist that the employer should deal with complaints"— he meant individual complaints—

"about the absence of facilities individually as well".

At col. 183, he then expanded the range—this is very important—and said:

"it is unlikely to be possible to apply the statutory procedures to unfair dismissals arising out of industrial action because they arise out of a collective dispute".

I ask my noble and learned friend whether he meant "lawful industrial action" or "industrial action". If he meant "lawful industrial action", do we have to await the result of an interlocutory injunction application by the employer to know whether it is lawful or not?

In other words, some indication must be given as to what is meant by "collective issues" and "collective handling of grievances", especially in the light of the fact that at one point in the documents the Government have adopted the CBI notion that "exceptions must be narrowly drawn". What is the narrow drawing of a collective issue?

I appreciate that my noble and learned friend will probably say that we will know all about this when we see the regulations. The regulations are an Alice-in-Wonderland provision that none of us will see until we see the drafts some days before they are introduced. There is an obligation on the Government to tell the House something at this stage about what they mean by "collective issues" and "individual issues". I support the amendment.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, my noble friend Lord McCarthy said that the purpose of the amendment was to probe what exemptions there would be. He asked what principles would be applied; what would be the width of the exemptions; would they cover the matters referred to in his amendment or would they cover other matters. He then read a long extract from the speech of my noble friend Lord McIntosh in Grand Committee, in which my noble friend set out what the approach would be. The noble Lord referred to my noble friend saying that it is the Government's intention to be sparing in setting exemptions. It is the fact that most employees should have very little difficulty in fulfilling their obligations under this clause. They just have to raise a grievance in writing and wait 28 days. Anyway, they would have to set out their grievance in writing when application is made to the tribunal. No one is suggesting that they should be exempt from meeting that requirement of the tribunal system. The employer would soon find out the grievance in any case.

Therefore, we need to ask ourselves what special grounds may arise where it would be unreasonable to expect an employee to set out his complaint to the employer a little earlier. That sets out a basic principle, but my noble friend Lord McIntosh went further and indicated that there would be some special cases. My noble friend Lord McCarthy has gone through what my noble friend said. He referred to the threat of violence or other forms of serious harassment falling into the category of special cases. Likewise, we do not want to force employees to raise a grievance as an individual complaint if it has already been addressed as a collective issue by a union on their behalf. That is the point dealt with by my noble friend Lord Wedderburn. What is being referred to there is that if the matter has already been raised as a grievance collectively, and it is the same issue on which the individual is making a complaint, there is not much point in using the grievance procedure. That seems to me to be a perfectly clear principle. How it works in practice will depend on the individual case.

My noble friend Lord McIntosh also referred to interim relief. He made it clear that it is those kinds of things which would be referred to in the exemptions contained in the regulations. He also made it clear that there may be others which it would be sensible to add and by consulting fully on the draft regulations interested parties could give their views on this key subject.

My noble friend Lord McCarthy then asked whether we had considered putting them all into one list. The answer is that we do not want to set out a list until we have had a proper and full consultation on what should be in the exemptions. That appears to me to be extremely sensible and something which I know my noble friend Lord McCarthy, who throughout his career has emphasised the importance of consultation, would regard as a very important approach to these matters.

Photo of Lord McCarthy Lord McCarthy Labour 9:00 pm, 11th June 2002

My Lords, I ask the noble and learned Lord to give way. I did not ask for a list but for the principles by which it was decided to put in some measures, exclude others and deal with others which we could not be told about. That is not a list, but a set of logical constructions.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I am very sorry. At the end of the speech of my noble friend Lord McCarthy, he referred to what he described as the "delphic remarks" of my noble friend Lord McIntosh. I am sorry that I did not make the matter clear. As regards principle, my noble friend Lord McIntosh indicated the basis on which we would decide what the exemptions would be, but he made it clear that we would consult fully. My noble friend Lord McCarthy shakes his head. I have failed, as ever, to satisfy him. But he should not get us wrong. We have made clear the basis on which we have approached the issue.

Photo of Lord McCarthy Lord McCarthy Labour

My Lords, the noble and learned Lord says that the principles and their basis have been set out. Would he tell us now what they are?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I could repeat for the third time the speech that was made by my noble friend Lord McIntosh, but I believe that other noble Lords would be wearied by it. We could not accept that the scope of the exemptions should be drawn as widely as my noble friend's amendment implies. If we followed that approach, exemption could be claimed in a large proportion of cases. For example, it would mean that the admissibility regime would never apply to any case involving sex or race discrimination. It would largely negate the purpose of the clause. For the reasons that I have given, I hope that my noble friend Lord McCarthy will now accept that we have set out the approach that we will take to the exemptions and that he will feel able to withdraw his amendment.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, before my noble and learned friend sits down, I may say that perhaps I misheard. As I understand it, he said that a collective issue is one which has been handled collectively. Is that correct?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I said that we do not want to force employees to raise a grievance as an individual complaint if it has already been addressed as a collective issue by a union on their behalf.

Photo of Lord McCarthy Lord McCarthy Labour

My Lords, we are not getting anywhere again. I have just a few points. I do not know why the noble and learned Lord keeps saying that all one has to do and the only kind of disability that one suffers if one is caught by the access restriction procedure, is that one has to write a letter. If it were only that one could say that it is only those people who cannot write letters who will be excluded. But the noble and learned Lord has given me all kinds of other people who could write letters. Far more restrictions apply to this access procedure, as he knows very well. One has to wait 28 days as we keep on saying. It is nothing to do with writing letters.

If I understand him correctly, he says that it is reasonable to ask people to write a little earlier. I do not know what that means. Is one to be excluded if one has to write a little early or left out if one writes earlier? And once again, what about the 28 days? Why should some people be left an additional 28 days when others are let in without the 28 days? What is the distinction which says that race and sex will be on one side of the divide, but other forms of discrimination will be on the other? We do not want lists and we do not want "blah", but principles and the Government never give them to us. I suspect that that is because they have not the slightest idea themselves. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

moved Amendment No. 77:

Page 38, line 13, leave out paragraph (b).

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, in moving this amendment I shall also speak to Amendment No. 78. Amendment No. 77 relates to Clause 32(7) as set out in the Bill.

Subsections (6) or (9) require the employee to take the first step in the grievance procedure. It is a provision of an Act of Parliament which states that before one can go to the tribunal one must take the required steps. As a matter of fact, it also states that even if one has taken the required steps one is still a disabled person because one cannot go to the tribunal for 28 days.

I take the first point. If an Act of Parliament says to me, as a citizen, "This is a step which you are required to take on pain of limited access to justice", that is very clear as long as the step is set out clearly. I fully accept that my noble and learned friend and my noble friend Lord McIntosh have said that they want to be clear. Now that they have cleared up the matter regarding a copy of the statement, they are clear that the employee must send the statement of the grievance, or a copy of it, to the employer. Nothing could be clearer than that.

So when an Act of Parliament says, "This is the step that you are required to take before you can get to the court", I expect that to be interpreted by those whose job it is to interpret it—and those whose job it is to interpret, first, the legal meaning of a provision in an Act of Parliament and, secondly, whether or not the facts that are before them cause that provision to apply are the courts, or in this case the tribunals. In the old days—and, theoretically, in a sense today—the question of law is for the court and the question of fact is for the jury. Neither question is for the executive. Yet the Bill says that it is for the Minister to decide what constitutes compliance with the requirements.

In Grand Committee, we suggested that this provision had the tones of a Henry VIII clause. There are many definitions of a Henry VIII clause. I have looked them all up and will quote them if my noble and learned friend wishes, but that would be tedious. I shall simply say that if it is not like a Henry VIII clause in the old sense, it has distinctly Tudor overtones. It is the Minister insisting that he is going to decide what is compliance, not the courts—not the tribunal.

Indeed, the clause goes on to say that not only will the Minister introduce regulations stating what constitutes compliance with the requirement to send a letter, but he will make provision in relation to circumstances in which a person is treated as having complied—that is, he has not really complied, but the Minister will set out the circumstances in which the tribunal must deal with the person as if he had complied—there is no other meaning to the phrase "treated as having complied".

In Grand Committee, we understood that the Government may wish to comment on this provision. We said that we thought it proper, not that the executive should take over the functions of the courts, but that it should give guidance as to its views on compliance. But that was regarded as totally unacceptable on grounds which, without repeating the speeches made in Committee, were extremely arrogant. They verged on an insistence that the judicial functions of the court—in this case the tribunal—must be overridden by the views of the executive on what constitutes compliance in the first case or, in the second case, where there has not really been compliance but on what should be treated as compliance—and, inferentially, what should not. "What constitutes compliance" obviously implies that certain things will not be treated as compliance.

I cannot understand why the Government want to take this step of trespassing on the judicial functions of the tribunals. I just do not understand it. We offered them the idea of a code of practice. Obviously, any government can introduce such a code, introducing their ideas on what should be taken into account by the tribunal, judicially, in deciding on whether there has been compliance, on the facts, with the rules of the statute. But to say that the Minister is to decide what is compliance, and, more particularly, what is to be treated as compliance or not treated as compliance really does offend principles which I thought were established following the Donoughmore committee on Ministers' powers in 1932. I thought that that report had been accepted by governments of both parties since that time. It is extraordinary to see such a provision in paragraphs (b) and (c) of Clause 32(7)—which we suggest should be removed, and which the Government could easily replace on Third Reading in what might be termed a graceful acknowledgement of the judicial functions of the tribunals and the courts. I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, these amendments seek to delete the regulation-making powers in subsection (7)(b) and (c) respectively. Both powers are most important. However, it is also important to emphasise that they do not relate to individual cases; they deal with categories of cases. They do not remotely seek to replace the view of the tribunal with the view of the executive.

Under the first power, we can make allowance for the case where English is not the language of the employee; under the second power, regulations can be used to exempt certain categories of grievance—say, cases involving the threat of violence—from the admissibility regime.

We have argued throughout all our discussions that we want to create as much certainty as we can in the application of the statutory procedures. We do not wish to leave too many questions to the discretion of the tribunals; that would create uncertainty. Hence our policy is to use regulations to define the detail of how the statutory procedures should be applied across different circumstances.

This does not trespass on the decision-making powers of the tribunal any more than any other regulations; for example, the tribunal rules. Therefore, we believe that the regulation-making powers provide a feasible, desirable and sensible means of providing certainty where it is appropriate to do so. I invite my noble friend to withdraw his amendment.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour 9:15 pm, 11th June 2002

My Lords, I am grateful to my noble and learned friend the Minister for that reply, but I do not think that he will be very proud of it when he reads it in Hansard. Paragraph (b) does not say that the provisions in the regulations will set out what constitutes "compliance" in categories of cases; it spells out what constitutes "compliance". It can go as far as the Minister concerned likes. It is nothing to do with the exceptions for violence, intimidation, sex discrimination, and so on, because they were all dealt with under previous amendments; and, indeed, as my noble and learned friend knows perfectly well, they arise under different parts of the legislation.

Similarly, it is nothing to do with certainty, except in so far as the Secretary of State wants certainty on his say so; nor is it anything to do with the discretion of the tribunals. Indeed, I have never previously heard the judicial function of courts described as "discretion". I thought that that was fundamental and not a matter of discretion. The courts apply what the law says: what the law says here will be what the Secretary of State says, not what the courts find.

However my noble and learned friend dresses it up, this is a trespass on the judicial function of the tribunals. It would be perfectly simple for the Government to avoid that trespass by inserting into the legislation a code of guidance as to what they believe should be taken into account in deciding what is "compliance"—and, more particularly, what should be treated as compliance. I noticed that my noble and learned friend did not say much about the latter.

I am speaking to paragraph (c)—Amendment No. 89—as much as to paragraph (b) in this respect. Paragraph (c) is even more to be deplored in the structure of the clause: what is to be treated as compliance is an "as if" proposition. The Government are using the notion of certainty in order to take complete control of excluding workers from the tribunals. It is not concerned with certainty; it is concerned with the judicial function. Therefore, paragraphs (b) and (c) should be deleted. The Government should reconsider the position before we reach Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78 not moved.]

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

moved Amendment No. 79:

Page 38, line 30, at end insert—

"( ) This section does not apply to cases of constructive dismissal."

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, we now turn to what I agree is a difficult issue; namely, constructive dismissal. We discussed the issue in Committee, but both I and my noble friends did say that we would return to it on Report.

Constructive dismissal occurs when work and working conditions are deliberately made so difficult for an employee that he feels there is no alternative but to resign. It is a device sometimes used by unscrupulous employers who wish to get rid of someone as cheaply as possible. It can take many forms. Demands may be made on a worker that he feels cannot possibly be met; for example, a series of demotions or transfers to unsuitable work. There can be bullying, possibly harassment—even sexual harassment—which management does nothing to prevent and perhaps even covertly encourages. There could be a failure to pay wages or deductions from wages. There may be health and safety issues, perhaps on a construction site where working conditions can be hazardous anyway and inadequate precautions are taken.

Of course, we do now have legislation in place that seeks to protect whistle-blowers in such circumstances. However, workers—particularly in a non-union environment—may feel too intimidated to use the protective legislation. There are industries where the presence of so-called "illegals", who are willing to work for low rates and to take risks, can act as a pressure on existing workforces.

If there is a union environment, then protection can normally be afforded to employees suffering in some of the ways that I have outlined. Sometimes the individual concerned, who may feel that he has no one to whom to turn, may feel so stressed that the only course open is to leave the job. I agree that such cases may be uncommon, but they do happen, often to very vulnerable people.

The objective of my amendment is to ensure that constructive dismissal is treated differently and that an employee in such a situation should not be expected to go through the various procedures laid down in the Bill before the case can be heard by a tribunal. It would be unrealistic anyway since relationships have usually broken down in such circumstances. In Committee, my noble friend the Minister expressed some sympathy with the case I made. However, the Government's position, as I understood it then, was that it was a matter best dealt with via regulations concerning which there will in any event be consultation. Nevertheless, I do think that there is a strong case for having such provision on the face of the Bill. Constructive dismissal is a term that is already widely understood, and it should be made clear to all concerned that in the face of this type of behaviour by unscrupulous employers to vulnerable people, an employee will be able to take his or her case off to an employment tribunal virtually on a fast-track procedure. I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the point which my noble friend Lady Turner raises is an important and difficult one, as she acknowledges. The underlying principle behind Part 3 of the Bill is to encourage some dialogue between employee and employer about serious workplace problems. It is our deeply held belief that dialogue is a good thing in itself. It can help to define issues and resolve misunderstandings before litigation is undertaken.

In some respects, constructive dismissals are unlike other cases. They follow from the resignation of the employee. Often, the employee does not give the true reason to their employer before resigning. The resignation issue can be hidden. Employers may think with some justification that the employee has resigned—as hundreds of thousands do each year—for reasons totally unconnected with their individual treatment at work; for example, because the former employee wants a change, to move on to full-time education or to start a career elsewhere.

In some constructive dismissal cases, the employer may be totally unaware that there is a problem before they are sent a copy of the tribunal application. We want to avoid that outcome if we can. We want to give the parties a chance to exchange information first before going to a tribunal. We believe that that will be beneficial to both sides. It may even resolve the issue. We are therefore convinced that there is particularly good reason to apply the admissibility criteria to these cases.

Nevertheless, we know that the issue is complex, for precisely the reasons to which my noble friend has referred. We shall have to think hard about exempting certain categories of constructive dismissal case from the admissibility regime. Harassment and bullying at work, as my noble friend rightly said, are connected to significant numbers of constructive dismissal cases. People resign rather than suffer the continuing pain and humiliation of such cases. We need to look at the case for exempting people exposed to such serious ill-treatment from having to pursue the matter with the employer before going to a tribunal, even though the admissibility criteria do not require the parties to meet. Therefore, such cases, for precisely the reasons given by my noble friend, require special consideration. As I have said, however, they are not the only cases that give rise to constructive dismissal.

We shall also have to look at the interaction between the statutory disciplinary and grievance procedures in these cases. A person may resign and claim constructive dismissal where the employer has unfairly disciplined him or her. In such cases, it is usually obvious to both parties why the employee has resigned. They may even have discussed the possibility during a recent disciplinary hearing. It may be wasteful and unfair in such circumstances to require the employee in effect to initiate a grievance.

The Government cannot accept this amendment. However, we recognise the need to draft the regulations under Clause 32 with care to ensure that we exempt deserving cases from the application of the admissibility regime. We shall of course consult in full on the draft regulations. This should give all parties a good opportunity to help us to identify the exemptions required. In the light of what I have said, I hope that I have reassured my noble friend on the basic concerns she raised.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I thank my noble and learned friend for that response. I am particularly glad to note that the Government clearly have some sympathy with the case that we have been making. As I said in my initial submissions, I still believe that there is a case for placing something on the face of the Bill. If a provision is put into the legislation, at least that will be a warning to employers who feel inclined to exercise power over vulnerable people that they may have to face a tribunal without the employee having to go through all the procedures.

However, I accept that there is recognition that a very strong case exists here. Although I should much prefer something to be placed on the face of the Bill rather than in regulations, I am glad to note that the Government at least accept that we have a strong case. I am pleased that they accept that there are situations in which it is simply not reasonable for a worker in this type of situation to try to enter into a form of dialogue with an employer who may be victimising him or may be prepared to accept a situation in which the employee is harassed or bullied. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord McCarthy Lord McCarthy Labour

moved Amendment No. 80:

Page 38, line 34, at end insert—

"(11) The Secretary of State shall make provision by regulations to ensure that, where a complaint is communicated to an employment tribunal but falls within any of subsections (1) to (3), copies of the communication and notices relating to it shall be sent to a conciliation officer for the purpose of giving an opportunity for the complaint to be settled by way of conciliation."

Photo of Lord McCarthy Lord McCarthy Labour

My Lords, I am afraid that my noble and learned friend will find that, once again, we are going over the same ground. However, it is the last time that I shall be doing so tonight, and that may be some consolation.

This amendment concerns the activities of ACAS during the dead period—that is, during the operation of the restriction of access in the statutory procedure for dealing with grievances. It is perfectly true that we tabled an amendment on this subject in Grand Committee. I argued that Routes to Resolution advanced the case for the statutory procedure because the Government wanted to promote non-legal settlements. Much was made of that.

We had some difficulty in understanding how the organisation with a great reputation for facilitating settlements—indeed, it was created and founded in order to facilitate settlements—could be excluded for 28 days. We could not understand it then and we cannot understand it now. The object of our amendment was to create a situation in which ACAS could be active throughout the period. We said that the 28-day period should be left alone and asked why ACAS was being put into a box. To that, my noble friend Lord McIntosh replied in Grand Committee that the Government were wrong to say that; they were not keeping ACAS out. He said:

"ACAS can . . . provide conciliation . . . in advance of a tribunal application in certain circumstances . . . that facility will remain".—[Official Report, 26/3/02; col. CWH 377.]

Subsequently, when challenged, my noble friend referred to Section 18(3) of the Employment Tribunals Act. We said that that was a general provision which applied only where the proceedings could be brought by the applicant. But it might be possible for someone to argue subsequently that the applicant could not bring a case before a tribunal now because he was excluded by the provisions of the statutory procedure. That was enacted before these restrictions were to be imposed in this Bill.

We also put forward the idea that an applicant who could ask for ACAS to be brought in might not know that he was able to use ACAS. Most people in business and probably most people in this House know all about ACAS and perhaps avidly read its annual reports, but out there people do not know of it. My friends in ACAS tell me that, when they telephone people, they are asked, "Who are you?". Of course, that is the case. Therefore, how are people to know, in the middle of the 28 days of purdah, that they can use ACAS? I am assuming that they can, although that has not been made absolutely clear to us. Let us suppose that ACAS does not know. ACAS is structured in such a way that it will wait to receive the ETs. When it receives the forms, it starts the process. That is how it works. How can we know that ACAS will know? ACAS is not exactly looking for work; it is overworked. It does not go around saying, "Have you heard of some cases we can do?".

We were not satisfied. We said, "Why not send the new form as soon as it is available? As soon as you get the completed form, do not wait for 28 days; send it round to ACAS". The noble Lord, Lord McIntosh, said:

"Because we want first to encourage settlements of the kind which nearly all settlements are—that is, settlements between employer and employee—and we want to do that first".—[Official Report, 26/3/02; col. 381.]

So, now we have this admission, as we have had subsequently. We have to ask yet again at this time of night, "What makes you think that ACAS will discourage the settlement of disputes between employers and employees?". What an insult to that great institution to say that, in order to make it more likely that there will be a settlement, ACAS cannot come in. If that were true, we could close down ACAS and then we would have more settlements. That is nonsense and the Government know that it is nonsense. Therefore, I want to see what they can conceivably find to justify themselves tonight. I beg to move.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, my noble friend's case is surely grounded on a most important reason in Clause 32, which must take account of Section 19 of the Employment Tribunals Act 1996. Section 19 states:

"Employment tribunal procedure regulations shall include in relation to employment tribunal proceedings in the case of which any enactment makes provision for conciliation—

(a) provisions requiring a copy of the application by which the proceedings are instituted, and a copy of any notice relating to it which is lodged by or on behalf of the person against whom the proceedings are brought, to be sent to a conciliation officer".

That is how ACAS gets to know about the case. Every application is sent to an ACAS conciliation officer. If the employee is prevented from making an application, for which Clause 32(2) provides, if he has not completed the first step in a grievance procedure, or if he has completed even the first step in a grievance procedure after waiting 28 days, how does ACAS get to know about the case? It may read about it in the local newspaper or someone may send ACAS a letter. There is no automatic notification to ACAS. As my noble friend said, we want ACAS to know about cases even if they fall within Clause 32(2), (3) or (4). That is the point of the amendment, as my noble friend said. That is a case which I do not believe the Government can reasonably resist.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, we fully share the high opinion of ACAS held by my noble friend Lord McCarthy. We also acknowledge his remarks about ACAS being overworked at present. ACAS conciliation is a finite resource. It is important that that resource is deployed in the best possible way to assist employers and employees when they most need it. In other words, we want to promote the effective use of conciliation.

Generally speaking, when parties are addressing issues through internal procedures, they are likely to sort out their problems between themselves without assistance. It is therefore relatively rare for ACAS to become involved when parties are actively discussing their concerns, even though they can intervene at this point under Section 18(3) of the Employment Tribunals Act 1996.

The Bill will ensure that all employees have access to procedures. That is a major advance. It follows that we want people to use those procedures to sort out their problems. Employees who fail to meet the admissibility criteria are individuals who have never raised and then pursued their complaint through internal procedures. No serious discussions have therefore occurred. Clause 32 will prompt employees and employers to use the procedures which the Bill provides. That is, in our view, unquestionably a good thing to do.

The amendment would invite or even require ACAS to conciliate even though the admissibility criteria had not been met, even though procedures had not been instigated or used properly. That seems to us to be an unnecessary and inefficient arrangement. It is far better to concentrate ACAS's resources on cases where procedures have been used and have failed.

As I have mentioned, ACAS already has the power to provide conciliation to parties in advance of a tribunal application in some circumstances. ACAS therefore has the flexibility it needs to intervene at an earlier point, where necessary. That facility will remain in place. How will they find out, my noble friends ask in their speeches? It is up to the parties to approach ACAS. That is what happens now when ACAS intervenes before an application is made. It works well and ensures that ACAS's assistance is available where needed. As my noble friends know, the ACAS helpline receives three-quarters of a million calls per year from individuals and employers seeking advice. So ACAS is well sited on a large number of employment problems.

We think that that is the right approach. That is the approach that is set out in the Bill. In the light of what I have said, I hope that my noble friends feel able to withdraw their amendment.

Photo of Lord McCarthy Lord McCarthy Labour

My Lords, we are all getting tired now. The Minister has just had four own goals in a row. He says that we cannot do it because ACAS is overworked. It does not have the resources. Everyone knows that it is much cheaper to have an ACAS settlement than it is to have a court settlement. If it were the case that ACAS could do constructive work and that it was being held up by not having enough money, it would be quite lunatic for a government to come along and say, "We are doing that so that we reduce the demands on the tribunal". It would not reduce the demands, it would increase them, and, settlement for settlement, a settlement using the courts or the tribunals is five or six times more expensive than a settlement by ACAS. So it is an own goal to tell me about an overworked ACAS.

Secondly, the Minister says that it is rare for ACAS to come in. There is no problem because it does not come in very much in the early stage. If it is rare for it to come in, why does one have to legislate to prevent it coming in?

The Minister says that they do not require ACAS to conciliate. Why should we force ACAS to conciliate? When did we ever say that we would make it essential and necessary for ACAS to conciliate? We never said that. We say, "Give it a chance to conciliate". If it wants to conciliate, it can. That is another own goal.

The Minister says that it is up to the parties to decide whether to bring ACAS in. We made this point before: how is the average "irk", who has been unfairly dismissed—I am sorry that the Minister cannot listen. I will speak a little louder. Perhaps he will listen then. I am sorry; I do not think that I have the Minister's attention. I do have the Minister's attention now.

I was trying to say that the Minister says that it is up to the parties to bring in ACAS. The employer might know, but the worker will not know that, so it is another own goal. That is four own goals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Sharman Lord Sharman Liberal Democrat

moved Amendment No. 80A:

Leave out Clause 32.

Photo of Lord Sharman Lord Sharman Liberal Democrat

My Lords, Amendment No. 80A standing in my name and that of my noble friend Lord Razzall seeks to leave out Clause 32.

We have spent between one and-a-half to two hours debating the perceived frailties of the clause in the eyes of the noble Lords opposite who are, unlike me, somewhat more expert in matters of employment law. If I needed any convincing that, as they said, the view of the Law Society that the clause is fundamentally flawed is right, the past one-and-a-half to two hours has provided it.

I should be remiss if I did not congratulate the Minister on his defence. He reminds me of Boycott at his worst: absolutely resolute; keeping out the bowling at all costs; and not scoring any runs. Nevertheless, I ask him to reconsider the clause. During the past hour-and-a-half to two hours, we on these Benches have felt that we have been intruding on the private grief between the Government and their supporters on the Back Benches. Please do something about it. Take the clause back to the drawing board; reconsider it. It is fundamentally flawed; it needs to be reconsidered. I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I welcome the intervention of the noble Lord, Lord Sharman, in the debate, if only because his is a fresh voice.

This is an important clause of the Bill. Discussion of it took up a great deal of time in Grand Committee; it has taken up a great deal of time this afternoon and this evening; and I am sure that we shall discuss it for even longer. As a result of the Bill, all employees will have access to a reasonable dispute procedure. That should be seen as a major breakthrough in developing a modern and fair system of employment relations. Millions of people stand to benefit from it.

But procedures are of little use in themselves. They must be used. I hope that we can all agree to the proposition that dialogue is better than confrontation. We want to encourage reasoned and structured discussion at the workplace. Problems are resolved earlier and less acrimoniously as a result and relationships are preserved. We have therefore constructed a series of measures in Part 3 that provide incentives to employers and employees to use those procedures.

Clause 32 sets a simple set of criteria—I emphasise the word "simple"—that employees must follow in order to access a tribunal. They have simply to convey their complaint in writing to the employer and wait for a month. Those are not onerous requirements; they are not cumbersome; and they are easily verifiable.

First, the clause provides safeguards to deal with every difficulty that may arise when the admissibility criteria are applied. The criteria will apply only where the initiative rests with the employee. They will not apply to cases where the employer in fact initiates the complaint. We cannot make access to the tribunal contingent on the actions of the employer. Therefore, the admissibility criteria will not apply to unfair dismissal cases. That takes a large number of cases outside the admissibility regime.

Secondly, we believe that the criteria should not generally apply to ex-employees. Thirdly, we have ensured that employees will not lose their right of access to tribunals through ignorance. Fourthly, we recognise that in extreme cases it would be unacceptable to expect employees to raise a complaint with their employer before going to a tribunal. That use of regulation to deal with exceptional cases is proper. It allows us to consult on their detail. The Delegated Powers and Regulatory Reform Committee concluded that that represented an acceptable power for the Government to take.

Of course it is not unreasonable to attach some preconditions to accessing a legal system. We have long applied time limits to the bringing of complaints to tribunals. We now propose to add several admissibility criteria. They are proportionate, well targeted and serve a sound public purpose. The Joint Committee on Human Rights was therefore satisfied that the Bill can be implemented in a manner compatible with the Convention on Human Rights.

Clause 32 has been wrongly depicted as intended to debar tribunal applications. That is certainly not our intention. Instead, we want to ensure that in a particular and limited set of circumstances, employees must meet a few simple tests before their applications can be accepted by the tribunals. That will encourage dialogue where dialogue can help. Where dialogue does not work, then those cases will move on to the tribunals.

The clause will reduce tribunal caseloads below the level that they would otherwise be. That effect is not achieved by deterring or prohibiting applications. It is achieved because parties will increasingly sort out their difficulties between themselves, removing the need to go to a tribunal. I believe that that is an extremely laudable aim and that it is an aim that the noble Lord, Lord Sharman, would unquestionably share. In the light of that explanation I know that the noble Lord will feel obliged to withdraw his amendment.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour 9:45 pm, 11th June 2002

My Lords, before my noble and learned friend sits down, will he answer two questions? First, he has mentioned the parliamentary Joint Committee on Human Rights. He will know that the Joint Committee is again considering the matter of compatibility and various aspects of the Government's case on which it asked the Secretary of State a series of questions. Will he tell the House when he expects the second report of the Joint Committee to be before the House?

Secondly, perhaps I may refer to a specific point. As I understand it—I am sure that he will correct me if I am wrong—the Minister has said in the course of his reply that Clause 32 and Schedule 2 will not apply to former employees. In discussing the modified procedure, he explained that workers who had already been dismissed for misconduct would have the modified procedure of Schedule 2 applied to them. Therefore, Clause 32 would apply to them.

Which is it? Are former employees all excluded, or are employees already dismissed for misconduct within the scope of Schedule 2 and Clause 32? I would be very grateful if he would answer both those questions.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, in relation to the first point, the Human Rights Joint Committee clerk has indicated that he would expect the report to be available next week. I do not know what the report will say. We will have to wait until then.

Secondly, in relation to whether the admissibility criteria under Clause 32 would apply to former employees, I said that it would not generally apply to former employees. For such people the maintenance of the relationship with the employer is not an issue. Therefore, there is less benefit in applying the admissibility regime to such situations. The one exception to that rule is constructive dismissal. We went into some detail with noble Lords when we were discussing the amendment tabled by my noble friend Lady Turner. We were debating the treatment of constructive dismissal at Amendment No. 79. Therefore, we need to consider precisely how it would apply in those circumstances.

Photo of Lord Sharman Lord Sharman Liberal Democrat

My Lords, the Minister was right in two aspects of his response. First, Clause 32 is a critical and important clause of the Bill. I would not disagree with him on that. Secondly, I would not disagree with him as to the Government's aims in that matter. I believe that they are entirely laudable. The issue between us is whether Clause 32 achieves those aims. On that matter I would like to reserve my position until I have read fully what he said in Hansard. We may want to come back to this at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

moved Amendment No. 81.

Page 68, leave out lines 16 to 20.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, I am deeply disappointed that the Government and the usual channels have insisted that we take Amendment No. 81 tonight. With Amendment No. 81 I have to speak—and I intend to do so because this is out last opportunity—to Amendments Nos. 82, 84, 85, 86, 89 and 90. They are all about Schedule 4. I shall do so as briefly as I can. However, since it concerns the whole schedule which applies to the whole of Clause 32, it would be wrong of me not to put a case whereby workers are very unfairly treated in the conspectus of Schedule 4. As the noble Lord, Lord McIntosh, must appreciate from what he has just been dealing with, it is a matter of primary importance.

Schedule 4 sets out the range of employment protection statutes under which the enforcement of certain rights will become conditionally inadmissible under the terms of Clause 32, either because they are not complied with or because they have been complied with and the applicant must wait 28 days.

The statutory rights in Schedule 4 which describe the ambit of Clause 32 fall into three groups. They are all covered in the various lines which we would challenge in Schedule 4. The first group are statutes dealing with sex, race and disability discrimination. The second group are provisions relating to workers who have been victimised for proposing or seeking to enforce their basic rights. The third group are provisions that derive from rights under European Union law.

Of course we appreciate that the Government's primary aim—they say it is—in these provisions is to encourage settlement at workplace level. There is no complaint about that and as the noble Lord, Lord Razzall, said, the question is whether the ambit and the method of their trying to do so is at all reasonable or proportionate. As to the third group—the European Union rights—I say no more today than that grave doubts have been raised in many quarters whether it is proper to limit the enforcement of these rights in a manner proposed when the directives require an adequate, effective and deterrent method of enforcement. That applies to the Equal Pay Act, the Sex Discrimination Act, the Working Time Regulations and the European Works Council Regulations. The Government have said that they believe that is nothing to which European law would object. I wish they would set out their reasons for that and I expect them to do so today.

As regards discrimination, the limitations are applied to two gender protections, unequal pay and sex discrimination; to race discrimination; and to disability discrimination. Is it reasonable or proportionate to the mischief to be avoided to say to a disabled worker against whom an employee has illegally discriminated, "Send the employer a letter. Oh, perhaps you have done that and you are still being discriminated against at work illegally. Well, wait 28 days and see what happens"? And is it so to say the same to a worker being discriminated against on grounds of race? Today I picked up in the Printed Paper Office a new code of practice on the duty to promote race equality. I found nothing in it that suggested that those suffering racial discrimination should be barred from the tribunals for 28 days even if they had sent the necessary letter to their employers.

Why should the Government's legislation say to a woman subjected to gender discrimination in pay or conditions, "Yes, you sent a copy of your statement to the manager who did this. Of course the record shows there is next to no prospect of his acting any differently in the future but you must go back to work for a month with the same manager, see what he says, put aside your dignity at work and suffer the illegal low pay or degrading discrimination for another month before you can get to a tribunal. If they dismiss you for your supposed misconduct, you can have all the advantages of the modified procedure and hear the employer's last word, but you cannot go to a tribunal for a month. Oh, and my goodness, if you wait another month you will never be able to go to a tribunal"? What kind of proportionate response is that to the aim of bringing down tribunal applications by 34,000 or to the aim of settling problems at work?

What kind of proportionate response is that especially when the chief executive of ACAS said in April this year,

"There is still a significant rise in discrimination cases passed to ACAS. This is a very worrying trend in today's increasingly diverse labour market"?

The CBI has stated that the number of employment tribunal cases must be reduced to save costs in business and that therefore Clause 32 and its ambit in Schedule 4 is,

"one of the most important clauses in the Bill".

The logic of the final category of statutes in Schedule 4 is even more doubtful. These six enactments cover the right to complain to tribunals for workers who have been subjected by unscrupulous employers—they are a minority but nevertheless exist as the cases illustrate very well—to victimisation which has been imposed for no reason other than having dared to enforce or propose to enforce their rights in the tribunals. The grounds that relate to victimisation—detriment in the statutes—include being victimised for complaining about discrimination against them for being a trade union member; voting in a union recognition ballot or campaigning for or against union recognition; proposing to claim the minimum wage or tax credit; acting as a member of a European works council or standing as a candidate; carrying out the functions of a safety representative; or complaining to or taking action against the employer over serious imminent danger to life and limb at the workplace. That in a year when the number of deaths at work has increased for the first time in many years. The grounds include also acting as a workers' representative for consultation and taking proper time off for training, maternity or family reasons.

If a worker is victimised for any of those reasons and proposes action to enforce his rights, under Clause 32 as applied by Schedule 4, he cannot go to the tribunal. Even if a worker has been punished for proposing to enforce his rights and notified his grievance, he is barred from the doors of the tribunal for another 28 days. The Government say, "If you do what we want, you can have a second chance". What kind of protection does the worker have against non-payment of wages, victimisation or harassment at work during those 28 days? Why do not the Government pass a special protection during that period?

Ministers said, in response to our propositions in regard to victimisation, that they will make an exception for bullying. Not all victimisation will count as bullying—as my noble friend Lady Gibson will be the first to say under her Dignity at Work Bill. The Government say that the bully might be someone other than the manager. In every case where the worker is subjected to victimisation or detriment by the manager, he or she is being bullied or victimised just for proposing to enforce his or her rights.

I am astonished that the Official Opposition cannot even be bothered to take up the case of those vulnerable people. Although victimised, under Clause 32 and Schedule 4, they will not have the right to the tribunal.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Conservative

My Lords, I certainly do not intend to sit here and be attacked in that way. The noble Lord says that he is surprised at the way in which the Official Opposition is behaving. He said exactly that in Committee. I thought that he had got that issue out of his system. It was unnecessary to repeat that comment tonight.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, what is necessary in moving this amendment is not, with great respect, for the Opposition to judge. I am astonished that none of the Front Benchers—perhaps other than the Liberal Democrats—appears to think that it is disgraceful that people who are victimised at their place of work will be barred from the doors of the tribunal simply for proposing to enforce their rights.

It gets worse. The list in Schedule 4 produces extraordinary inconsistencies. I wonder whether my noble and learned friend can justify them. A worker who is victimised for saying that he will enforce his minimum wage and make the employer pay it is not allowed to go to the tribunal unless he begs the employer to set the matter right in a letter. Even then, the employee cannot go before the tribunal for a month. The Law Society and others pointed out long ago that under Section 20 of the National Minimum Wage Act 1998, an enforcement officer can go to the tribunal whether or not the worker has sent a letter and enforce the worker's rights to a minimum wage. What kind of consistency is that? The worker cannot go, but the enforcement officer can.

Similarly, my noble friend must take account of the fact that the list in Schedule 4 includes various cases of detriment or victimisation, but it does not include Section 12 of the Employment Relations Act 1999. Section 12 is a case where a worker has been victimised on the ground that he has taken part in asking for a union representative to accompany him—one has a right to be accompanied—at a hearing. If that is his complaint he can go to the tribunal. But if he has been victimised because of an unfair dismissal complaint or because he has not received a proper wage, or even if he has complained about health and safety dereliction on the part of the employer, he cannot go to a tribunal. What kind of sense and consistency is that?

The arrangements for Clause 32 and Schedule 4 are furthermore quite disproportionate to the problem identified by the Government. The Human Rights Act and the European Convention on Human Rights, Article 6, which prohibit disproportionate limitations on access to justice to enforce rights are very much at the centre of the 12th report of the Joint Committee on Human Rights. I appreciate that its conclusion on that occasion was that the Government scraped by on Article 6. However, it is sitting again because, with great respect to the Secretary of State, she misled the Joint Committee by citing the SETA survey results as justification of the Government's case for Clause 32 as it now stands.

Indeed, that was the Government's position, although I appreciate that subsequently they have retreated from it to some extent. I quote from the Department of Trade and Industry press notice of the speech of the Minister of State in July 2001 to which I hope my noble and learned friend will pay attention. The Minister said:

"The Government is convinced that many disagreements can be successfully resolved through better procedures in the workplace between an individual and their employer but equally a tribunal system designed to cope with increasing caseloads is essential".

Then he said:

"Over three in five of applications to tribunals come from applicants who have not attempted to resolve the problem directly with their employer in the first instance".

That is my honourable friend Mr Alan Johnson speaking in July 2001. That remained the basis of government policy while they drew up the Bill and throughout their case in Committee in another place. When we finally received the SETA survey, it showed nothing of the kind. The House of Commons was deprived of the information in the SETA survey, which was not published until deep in the Recess, two days before our Second Reading.

Here I am in some difficulty. My noble friend Lord McIntosh gave a somewhat different account of that. I must quote my noble friend in extenso because the Secretary of State has alleged that the Joint Committee on Human Rights quoted him out of context. That is a serious accusation by the Secretary of State and as a labour law scholar I resent it very much. Therefore, I have to quote my noble friend Lord McIntosh completely, as I did at Second Reading, so that we do not have more of such nonsense about context.

On 26th February I put to him the question of whether workers had attempted to solve the problems of the workplace and whether there was a compensation culture, as has been alleged by the CBI and all other employers' organisations, and he said:

"As regards the word 'attempted', I cannot tell from the wording of the survey whether such attempts took place or not. I imagine that in a large number of cases if a meeting had been attempted it would have been achieved, or certainly if written communication had been attempted it would have been achieved. I do not believe that significant numbers are involved in that regard ... Frankly, the issue of this survey has been taken as far as it can be taken. It has little significance in policy making terms and I do not think that we should spend any more time on it.

Of course, there are all kinds of reasons why there should be no communication between employees and employers. As Judge Prophet said, that could be because some people left employment before they had an opportunity to start any communication. That is a legitimate reason for not entering communication. I am not saying, and the Government are not saying, and never have said, as the noble Lord, Lord Razzall, claimed we had said, that 62 per cent of cases could have been resolved outside tribunals. That is not the case that we are making. We are making the case that communication between employees and employers is greatly lacking and that if we could find ways to encourage communication between employees and employers that would be to the benefit of employees and employers and may also have the effect of influencing the number of cases which come before tribunals".—[Official Report, 26/02/02; col. 1404.]

I entirely agree with that, but it was not the case on which the Government built Clause 32—as it now is—and Schedule 4. I will quote further if the Minister believes it is out of context, but I have done enough—especially at this time of night—to sustain the fact that the Government have retreated from their explanation in July 2001 and have now not relied on the SETA survey for Clause 32 and Schedule 4.

When the Secretary of State wrote again to the Joint Committee—I believe that the letter is in the Library; I was kindly sent a copy—she did not rely on the research of Burgess and his colleagues, which is well known to be the explanation of why employment tribunal applications have increased regularly since 1972 from five social causes and also an increase in jurisdictions; she relied upon what she called the "admittedly imperfect" SETA—the Survey of Employment Tribunal Applications—which,

"did not ask a direct question on this subject".

She said that SETA was just "one indicator" of pre-existing opinion and fact:

"The way we have chosen to enforce the statutory procedures is through the adjustment to awards under clause 31 and restrictions on admissibility under clause 33", as it was, now Clause 32. This was simply part of a commonly-held view that it was necessary. But there is not a single piece of relevant specific evidence in the Secretary of State's second letter to justify that method of enforcement against the employees whose situation I described under Schedule 4.

The use of limiting employees' access to justice over the range of statutes set out in Schedule 4 is disproportionate and proportionality is, as the European Court of Human Rights insisted last year in the Fogarty case, essential to the enforcement of limitations on access to justice. It said that if the limitation,

"does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved", then it is wrong.

Schedule 4 shows how many employees will be barred from access to justice in regard to Clause 32. It has three types of case. I say to my noble and learned friend that as you go through them they are less and less justifiable. They involve workers' European rights; workers who are sent back to work to suffer discrimination for 28 days on racial, disability, or sex grounds; and who are victimised by employers even for proposing to enforce their rights under existing statutes.

I seek that Schedule 4 be amended by cutting out those categories in their entirety. I beg to move.

Photo of Lord Sharman Lord Sharman Liberal Democrat

My Lords, I should like to speak to Amendments Nos. 83, 87, 88 and 90, which are in this group. These parts of Schedule 4 all deal with claims of detriment where an employee has claimed that he has suffered a detriment already. This seems a simple issue of principle: where an employee is claiming a statutory right—as there would be in this case—it is difficult to see how one should prevent that employee from further pursuing a claim where the basis for the claim is that the employer has responded badly to the claim of that statutory right in the first place. It is a straightforward, simple principle. I support the amendment.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I have listened very carefully to the arguments made in support of this large group of amendments. I agree with my noble friend on one point at least: this is a very important schedule. I agree with the noble Lord, Lord Sharman, that it raises very important points.

The admissibility policy and, to that extent, our whole dispute resolution policy, rests on getting this schedule right. So I will attempt, as I did in Grand Committee, to explain why the Government will resist any attempts to cut down the number of jurisdictions listed in it.

But first I must return to a point which has been made many times before by the Government. It bears any amount of repeating. Clause 32 simply does not have the drastic effects that my noble friends say that it has. My noble friend Lord Wedderburn said in Grand Committee that when one limits the right to the extent that Clause 33—which has now become Clause 32—limits it and prohibits any access to the tribunal, one is coming very close to destroying the right altogether.

Let me repeat, once again, for the whole House, what the admissibility criteria—these limitations which we are told come very close to destroying the right altogether—actually are. An employee with a grievance must write to his employer telling him what the grievance is. He must then wait 28 days to see if his employer responds. After that he is free to take the case to a tribunal.

We want people in all the jurisdictions that my noble friend has listed to tell their employer about the problem before they take him to a tribunal. We are not ashamed of that requirement. My noble friend alerts the House to all the important employee rights which we are covering in the schedule. We agree. Of course these are important rights and, yes, we do want them to be covered.

In our view it is perfectly sensible—indeed, it is right—that any employee who thinks that his employer has breached one of these rights should be required to tell his employer of this grievance and ask for a response to that complaint. I know that my noble friends are not alone in disagreeing with our view. I have read the Law Society's brief just as they clearly have, but the opponents are in a minority. We have been out to consultation on this and we have talked to all sides of industry.

My noble friend and the noble Lord, Lord Sharman, have brought to the attention of the House, in particular, the case of an employee who has suffered detriment at the hands of his employer. As the noble Lord and my noble friends will know, detriment can take many forms. It can take the form of bullying and harassment; it can also take the form of being passed over for promotion, being given dirty and unpleasant tasks or not being given a good set of benefits and so on.

There seems to be an assumption in the arguments that we have heard that it is unreasonable to expect someone who has suffered from detrimental action to write to their employer. Why? You have a grievance. It may be legitimate or it may not, but why on earth should it not be brought to the employer's attention before he is taken to a tribunal? He might be able to resolve the problem at a stroke. It could be based on a misunderstanding.

Of course the grievance may be real and the employer a thoroughly bad one. He will not reply or will give a dismissive reply to the Step 1 letter, and the case may go to the tribunal and be resolved in that way; or ACAS may be able to conciliate. All these routes are important and remain open. But talking to the employer first has got to be worth a try.

The premise of those who oppose our policy seems to be that people who have suffered detriment at work are rendered incapable or should not be expected further to communicate with the person who employs them. It is a false premise. Of course—and we have acknowledged this time and time again—there will be cases where the detriment, harassment or discrimination which has been suffered is so extreme that it makes the employee fearful of any further contact with his employer—and understandably and rightly so. As my noble friends acknowledged, the Government have promised complete exemptions in the regulations for those who have been subject to serious bullying, harassment and threats of violence. We will consult on the detail, but such exemptions will cut across all jurisdictions, not just those dependent on victimisation or detriment.

But exemptions from the statutory requirement will not be the norm and nor should they be. My noble friend Lord Wedderburn asked in Committee,

"Why on earth should special rules apply to a person's ability to go to a tribunal and say, 'That's not fair'? Some workers will say, 'I'm not going near that employer again. Look what he did to me last week'".—[Official Report, 21/3/02; col. CWH 309.]

The question is revealing for it seems to assume that the employment relationship has already ended, but as the employee still works there, how can he possibly say that he is not going near that employer again? In most cases, but not in all—and this we accept—we believe that someone who is employed ought to be able to communicate their concerns to the employer, and that is all we are requiring them to do.

My noble friend Lord Wedderburn raised a question on Europe. It is claimed that the Government are watering down rights which emanate from there. We heard in Committee that working time rights and other rights which stem from the EU directive should be taken out of the Schedule 4 list. We are accused of failing to provide effective and appropriate remedies because of the admissibility rule. But there are already rules about procedures for getting to a tribunal. All countries have them. There are time limits and forms to be filled in. Failure to meet the three-months' time limit in the United Kingdom means in most cases that the case cannot be heard. The worker would then be denied his day in court. I presume that that is accepted by my noble friend as not watering down European rights. We are adding another requirement, to raise the issue first with the employer in most cases. That is reasonable and proportionate. We have no reason to believe that we are in breach of any of our obligations in doing so.

Finally, my noble friend raised the human rights issue. He knows that the parliamentary Joint Committee on Human Rights has concluded that the provisions of the Bill serve legitimate public interest objectives. My noble friend Lord Wedderburn has raised particular concerns with the Joint Committee. My noble friend touched in some detail on those in the remarks he made this evening. I am sure that the right course is to wait to see what the committee says in relation to the particular points that he raised.

In the light of what I have said, I hope that my noble friend and the noble Lord, Lord Sharman, will feel able to withdraw their amendments.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour 10:15 pm, 11th June 2002

My Lords, I cannot say that I am very happy with that reply. It was more or less the one given in Grand Committee. Indeed, my noble and learned friend seemed to be quoting mainly from what I said at that stage and not what I said tonight.

As regards the exemptions in the regulations, we will see them when we see them. The CBI has said that the exemptions must be very limited. The Government seem to agree so I doubt very much whether they will deal with the issue. In respect of all other countries having the kind of provision which is in Clause 32 and Schedule 4, that is a travesty of comparative employment law. I do not know which examples my noble and learned friend would like to cite, but if he looks at the French, Italian or German procedures he will not find anything like Schedule 4 and Clause 32; indeed, that would apply to most other western countries.

As regards victimisation, the noble and learned Lord gave some very good examples. The worker comes home and he says to his wife, "I complained because I raised a question about health and safety as I thought someone was going to be killed. In reply the manager"—the worker would add an epithet—"put me on dirty tasks or he will pass me over for promotion". His wife says: "What are you going to do about that?". He says: "Oh, I can't do anything about that. I've got to spend another 28 days on dirty jobs".

What kind of justice and fairness do the Government think there is in that? Do they really think, sitting in comfortable offices, that workers who are put on dirty jobs as a response from unreasonable managers for daring to say that they wish to enforce their right to complain about derelections of duty in terms of health and safety will accept that without complaint? No wonder they say that they want to exclude collective issues—because, if workers cannot take issues up in the tribunals, they will take them up as collective issues; and a new generation of trade union officers will encourage them to do so, because a new generation of trade union officers is concerned above all with the interests of their members and not with loyalty to this or that schedule or to the curious philosophy that tells us that being put on dirty jobs for 28 days does not matter.

Schedule 4, plus Clause 32, is a disgrace. It is a disgrace for those who should know better. It is a disgrace for a Labour Government. It is very sad that we should have to debate this matter with some 15 or 20 people instead of the 400 who turn out to protect blood sports against animals rather than Schedule 4's blood sports against workers. But there is nothing I can do except beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord McCarthy Lord McCarthy Labour

My Lords, I thought there was an agreement that we should stop at this point. Would the Government like to say something?

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

Yes, my Lords, we have an agreement through the usual channels—which has been agreed explicitly with the noble Lords, Lord McCarthy and Lord Wedderburn—that we should finish on the group beginning with Amendment No. 81. That group includes Amendments Nos. 81 to 90.

Photo of Lord McCarthy Lord McCarthy Labour

My Lords, Amendment No. 82 is not moved.

[Amendments Nos. 82 to 90 not moved.]

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at twenty-three minutes past ten o'clock.