Clause 27 - Role of companion at disciplinary or grievance hearing

Employment Relations Bill – in a Public Bill Committee at 9:30 am on 10th February 2004.

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Photo of Henry Bellingham Henry Bellingham Shadow Minister (Business, Innovation and Skills), Shadow Minister 9:30 am, 10th February 2004

I beg to move amendment No. 51, in

clause 27, page 25, line 10, after 'companion', insert

', at the worker's request,'.

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

With this it will be convenient to discuss the following amendments:

No. 52, in

clause 27, page 25, leave out lines 14 and 15.

No. 53, in

clause 27, page 25, line 24, at end add—

'(2D) Nothing in subsections (2A) to (2C) shall prevent the employer from questioning and receiving responses from the worker (whether or not the worker chooses to confer with his companion).'

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Business, Innovation and Skills), Shadow Minister

Good morning, Mr. Stevenson. The clause clarifies the role of a worker's companion at a tribunal, but there are some ambiguities that need to be cleared up. The clause could imply that once a worker has chosen his companion, that person is obliged to attend the hearing. In any event, the companion will be subject to new subsection (2C)(b), under which he cannot address the hearing if the employee makes it clear that he does not wish the companion to do so.

Section 10(3) of the Employment Relations Act 1999 sets out fairly clearly the specifications as to who may act as a companion but nothing in the clause prevents an employee using that right to oblige another employee to attend the hearing. Although it is unlikely that many cases would arise in which an employee compelled a colleague to accompany him to a tribunal—perhaps to pursue another agenda—rights must be accompanied by responsibilities, and there must be certain safeguards to prevent any abuse of procedures that are designed to protect employees. That is the background to amendment No. 51.

I am sure that the Minister will be sympathetic to the amendment because we have tried hard to be as constructive and sensible as possible in tabling it. It would make a fairly simple change. New subsection (2A) states that the employer must permit the worker

''to be accompanied . . . by one companion who—

(a) is chosen by the worker; and

(b) is within subsection (3)''.

The amendment would ensure that the worker requested that the companion addressed the hearing. I would have thought that that was fairly straightforward.

Amendment No. 52 would leave out lines 14 and 15 on page 25. New subsection (2B) states that

''The employer must permit the worker's companion to—

(a) address the hearing in order to do any or all of the following—

(i) put the worker's case;

(ii) sum up that case;

(iii) respond on the worker's behalf to any view expressed at the hearing''.

The provision to allow the companion to respond on the worker's behalf is inconsistent with new subsection (2C), which states:

''Subsection (2B) does not require the employer to permit the worker's companion to—

(a) answer questions on behalf of the worker''.

I would be grateful if the Minister clarified under what conditions the companion might respond to views expressed while refraining from answering questions.

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

May I be clear what the hon. Gentleman is asking? Is he asking about the companion and not the employee answering the questions? I want to be sure that I have got that right, and then I will provide clarity.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Business, Innovation and Skills), Shadow Minister

I just want to clarify the conditions in which the companion might respond to views expressed while refraining from answering questions. I am linking the two parts of the Bill as it stands. I hope that I have not puzzled the Minister's officials, as they are looking at me rather furtively.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

There is the added matter of when is a view a question, which could lead to confusion.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Business, Innovation and Skills), Shadow Minister

Yes. May I move on to amendment No. 53? It adds new subsection (2D):

''Nothing in subsections (2A) to (2C) shall prevent the employer from questioning and receiving responses from the worker (whether or not the worker chooses to confer with his companion).''

It reinforces the point that, if the employer decides not to permit the companion to answer on behalf of the worker, it does not prevent the employer from putting the same questions to the employee and receiving answers. Given that new subsection (2B)(b) permits the employee to confer with his companion, the amendment would not allow the employer to disregard the companion's testimony and interrogate the employee. Rather, it would put the emphasis on the employee answering questions directed at him after consultation with his companion. The amendment offers a degree of extra reinforcement and clarification.

The Minister and I have both met the Brethren, mainly from Stockport and the northern part of the country. We will discuss the new clause on religious beliefs at a later stage and I do not want to pre-empt that, but the Brethren whom I have spoken to are very good employers who believe passionately in their businesses and in creating wealth. However, they have strong views about the introduction of an interface in the relationship between employer and employee. They feel that there is a bond that should not be interfered with by any outside organisation.

I know that the Brethren have met the Minister, who has been generous with his time, and that they discussed clause 27 and the rights of companions at disciplinary or grievance hearings. They also met me, voicing similar views, and they are concerned that the clause would widen the rights of trade unions.

I do not know if the Minister has taken on board the Brethren's concerns or what his comments on those concerns are, but they are genuine and sincerely held. Will he put their concerns at rest? They may be only small in number but up and down the country they employ a substantial number of people in small and medium-sized enterprises. It is in our interest that their views are taken on board and properly considered. I hope that the Minister will accept some of the amendments and also comment on my final point.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

Clause 27 makes amendments to legislation relating to the right to be accompanied in disciplinary or grievance hearings. The original ACAS code of practice on disciplinary practice and procedures in employment provided for the right of the worker to be accompanied at disciplinary hearings. Failure to comply would be taken into account by an employment tribunal. The Employment Relations Act 1999 made that right a statutory duty on employers. For the umpteenth time, the provisions in the Bill are being ratcheted up in favour of the worker. Now there is a statutory right for the companion to speak at the start and sum up at the end, and to speak on the worker's behalf on any views expressed at the meeting. It seems that what began as a disciplinary hearing is rapidly turning into a mini-trial.

The main area of conflict, other than the general points that I have just made, is that the companion can speak for the employee on any views expressed under new subsection (2B)(a)(iii), but not if the question is asked under new subsection (2C)(a). That is often debatable and could lead to confusion and a level of legality that is counterproductive. For that reason, I support the amendments in my name and that of my hon. Friend the Member for North-West Norfolk (Mr. Bellingham).

Amendment No. 51 makes it clear that the worker should stay in control of the process and that the union should not take it over on his behalf. Amendment No. 52 tries to address the conflict between a view and a query, by removing the companion's ability to respond on the worker's behalf to the views expressed. As my hon. Friend explained, amendment No. 53 claims that, as the clause stands, the employer's express right to ask the questions has been diluted. The amendment fortifies that right and makes it clear that, as it is a disciplinary process, the employer must have the right to ask questions, which must be answered by the worker, notwithstanding any rights that the companion may have.

Photo of Jim Sheridan Jim Sheridan Labour, West Renfrewshire

This part of the Bill is welcome, because it seeks to clarify the companion's role. However, ambiguity still surrounds that role, because he or she can still not answer specific questions on behalf of the employee. That is a waste of time for the employee, his or her companion and indeed the employer.

I have anecdotal evidence of trying to represent an employee at such a hearing. The experience was somewhat frustrating, because every time the employee was asked a specific question, I on his behalf was unable to answer it and a number of adjournments

had to be called. That was a ridiculous situation, and not one that any decent, progressive employer would want. Therefore, the role of companion should be further clarified. Indeed, I ask the Government to give workers full rights to representation.

I have some concerns about new subsection (2C), as it is somewhat contradictory. It would help if the Minister could explain the rationale behind it, because I believe that it is superfluous and should be deleted.

Photo of Mr Brian Cotter Mr Brian Cotter Shadow Minister (Trade & Industry), Trade & Industry, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson 9:45 am, 10th February 2004

I do not see anything negative in the clause—it makes a positive addition to the Bill. If this debate helps the Minister to clarify the issue of views as against questions, all well and good. I disagree with the hon. Member for Huntingdon (Mr. Djanogly) that the measure will be anything other than helpful in reaching a resolution. Perhaps the worker will feel that they are not on trial if they have support of that nature. It would be helpful to have clarification of those questions in the Minister's response.

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

Before I call the Minister, I just point out to the Committee that the amendments are quite specific. I shall call the question on clause stand part later. I am sure that the Minister will understand that.

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

May I start by apologising for my discourtesy earlier in not welcoming you to the Chair, Mr. Stevenson, and wishing you good morning? I do that now.

It has been helpful to hear the comments of all the hon. Members who have contributed to the debate. The views of the hon. Member for Huntingdon are, if nothing else, consistent, but I refer him to the Second Reading debate, when the hon. Member for Old Bexley and Sidcup (Derek Conway) expressed his view on the issue and welcomed what the Government are trying to achieve. The hon. Member for North-West Norfolk asked some specific questions. In the spirit of what you said, Mr. Stevenson, I shall try to deal with each of the amendments and explain the motivation for the clause.

Let me begin with the Brethren. I have met them on two occasions to discuss the issue. There is no attempt by the Government to change the fundamental relationship between the employer and the employee. In the spirit of the Bill, the clause is about making things better and more easily understandable.

The amendments concern the role that the companion plays at hearings. The underlying objective of clause 27 is to clarify the entitlement of companions to contribute to hearings and to ensure that they can play a more active role at such key meetings. That will benefit everyone. The worker will gain because companions may be better able to put the case. They are less emotionally involved than the worker. Many trade union officials say that companions may be more practised at expressing themselves clearly. They may bring to the hearing expertise drawn from similar experiences in other cases. As a result, the worker's case will be put more dispassionately and succinctly.

The employer stands to benefit as well. The main purpose of hearings is to find a practical resolution to a problem. Sometimes, those who are close to an issue cannot see all the solutions. Companions can help by suggesting alternatives drawn from other experiences. In other words, their general experience of problem solving can help both parties sort out their immediate difficulties.

I believe that the hon. Member for North-West Norfolk, who was charming, as usual, understands and sympathises with the approach. His amendments seek to probe the extent of the entitlement of companions to speak. He is concerned about excessively widening their role, thereby making matters worse.

Let me start with amendment No. 51, which would prevent the companion from speaking at hearings until he has been invited to do so by the worker. Companions would not be entitled to interject on their own initiative. On each occasion when they might wish to speak—there could be many such occasions in complicated cases—they would need to ensure that the worker first invited them to do so. That sounds rather clumsy and inflexible and might well delay the proceedings.

New subsection (2C) already achieves much the same effect but does so in a more user-friendly way. It ensures in paragraph (b) that the companion cannot address the hearing if the worker does not wish them to do so. That gives the worker the necessary authority to control the companion's contributions.

Photo of Mrs Anne Picking Mrs Anne Picking Labour, East Lothian

Might not the worker feel intimidated about instigating interjections if there were not an automatic right for the companion to speak at any point, whereas, if there is an automatic right, they can sit back and feel relaxed about the fairness of the hearing?

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

My hon. Friend makes a good point. That is the basis for trying to improve the difficult circumstances, as far as the worker is concerned, of a disciplinary or other significant hearing.

The worker has the necessary authority to control the contributions made by the companion. The worker may feel that the companion is talking too much or not making the correct points and can silence them if they so wish.

Amendment No. 52, which I hope is a probing amendment, would remove the entitlement from the companion to

''respond on the worker's behalf to any view expressed at the hearing''.

Our idea is to ensure that the companion can contribute throughout the hearing. We do not want to limit their contribution to an opening statement putting the worker's case, or to one summarising the case, which is what the amendment would do, because the companion may be able to make helpful contributions in-between, which may take the form of questioning the parties about their problem. The companion may thereby help to define the issue more clearly and comment on the arguments and supporting evidence that the employer or the worker put forward.

If done well, that should help to clarify the issue. Importantly, the companion may also wish to suggest solutions which neither party has yet uncovered, drawing on his or her wider experience.

We must, of course, guard against a garrulous companion dominating the hearing. We believe that there are controls on such behaviour and I direct the hon. Member for North-West Norfolk to new subsection 2C(c), which specifies that the companion is not entitled to address the hearing if such interventions prevent the employer or any witness from contributing to the hearing.

Amendment No. 53 deals with the direct dialogue between the employer and the worker at the disciplinary or grievance hearings where the right to be accompanied applies. The purpose of the amendment is to ensure that the companion has no entitlement to jump in and answer questions on behalf of the worker. There may be common ground between me and the hon. Gentleman on that. We agree that there should indeed be scope for direct dialogue between the two principal parties. The companion is not there to act as the only spokesperson for the worker. The worker, too, should contribute to the extent that he or she feels able to do so. Indeed, the companion may have insufficient information to answer questions put to the worker about, for example, the worker's experiences. It is the relationship between the worker and the employer which is at issue. Direct communication between those two parties is, therefore, usually necessary for them fully to understand the problems.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

If the worker refuses to answer questions and the employer is able, in effect, only to state views, is the employer allowed to draw inferences from that? Clearly, the Minister's intention is to ensure that there is dialogue and that the employer is able to ask questions. What happens if the employer does not ask questions?

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

The employer will draw conclusions from that and will decide what further steps to take. The worker will always have the right not to answer a question, but that may damage their case and the companion may have a view on that. We do not want to break the relationship, but we believe that the companion can bring active support to the whole process.

Photo of Jon Cruddas Jon Cruddas Labour, Dagenham

On the same point, but from a slightly different angle, will new subsection (2C) in lines 17 and 18 allow the employer to refuse to permit the companion to answer questions on behalf of the worker?

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

No, the companion can answer questions on behalf of the worker and advise the worker. We want fairness in the direct relationship, so that the employer can see the eyes of the worker and how he or she feels about the issue before them. We are trying to protect the employer's ability to ask

questions, but during the questioning the companion can use their outside experience to advise and to support the worker.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

The point to which the hon. Member for Dagenham (Jon Cruddas) referred is exactly what amendment No. 53 is getting at because there is ambiguity. My reading of new subsection (2C)(a), contrary to what the Minister said, is that the employer could indeed stop the worker's companion from answering questions on behalf of the worker. We may disagree on whether that is right, but that is how I read it.

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

I do not read it that way, but I shall take a look at the wording. I am trying to explain the principle and the spirit behind what we are trying to achieve. We may need to tidy up the wording on Report. I want to be clear that it is not about disturbing the relationship; it is about what the companion supporting the worker can and cannot do. The companion can be anyone of the worker's choosing—a colleague or a trade union official—to give the best chance of his or her case being put. The point was made on Second Reading that one may be an excellent worker at one's job, but be unable to put across a case. The intense nature of the hearing may affect the worker. We feel that it is appropriate to ensure that the role of the companion is made clear.

Photo of Mrs Anne Picking Mrs Anne Picking Labour, East Lothian

Is it not the case that this is about balancing the process? It is normally stacked against the employee, because the employer has always had the support of a human resources or personnel department, with the relevant expertise, skills and training, to give them advice or to speak on their behalf. The employee, who does not have those skills, is totally on their own. I have a view that those employed in personnel departments should be there to represent all people in the work force, and not just be a management tool. However, that is what happens, so this provision is about stacking it right.

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

My hon. Friend is right. It is about getting the balance right in what is a difficult environment for both parties. The measure tries to give the worker the opportunity to maximise his or her position in that difficult hearing by taking a companion—whether a colleague, friend, or trade union official. It also aims to ensure that the employer has the right to ask questions of the worker. I hear what my hon. Friend the Member for Dagenham and the hon. Member for Huntingdon are saying. I believe that there is an issue in terms of the employer—if one reads the new subsection that way—being able to stop the companion from answering a question. However, the companion can express a view about the questions asked.

I accept the spirit in which the hon. Member for North-West Norfolk introduced his amendments, but we do not think that they are necessary. There is clarity in what we are trying to achieve. I ask him to withdraw the amendment.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Business, Innovation and Skills), Shadow Minister

I am grateful to the Minister for that explanation. Confusion is too strong a word, but there is obviously still a certain lack of clarity. To return to the key point, if the employer decides not to permit the companion to answer questions on behalf of the employee, it should not prevent the employer from putting the same questions to the employee. Perhaps we can come back to the matter at a later stage. As my hon. Friend the Member for Huntingdon and other hon. Members have indicated, there is a possible pitfall here. I accept the Minister's view that amendment No. 53 is not strictly necessary. However, it would not detract in any way from what the clause sets out to do, and we feel that it would benefit the worker ultimately, and make the process smoother and more workable.

Photo of Gerry Sutcliffe Gerry Sutcliffe Parliamentary Under-Secretary (Trade and Industry) (Employment Relations and Consumer Affairs)

The other point that I did not stress as well as I should have done is that amendment No. 53 puts pressure, unintentionally, on the worker to answer a question. I do not think that that is the intention of the hon. Gentleman, so on that point alone, amendment No. 53 is not viable.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Business, Innovation and Skills), Shadow Minister

I am grateful to the Minister. Perhaps we can have a discussion about that before the Bill goes to Report. There is still, in my judgment, a need to look at the overall wording of the clause, if not to proceed with that particular amendment. In the spirit of what the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.