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8.5 pm
Rob Marris (Wolverhampton, South-West): I have already declared an interest as I have links with the Transport and General Workers Union. I should also tell Opposition Members who are keen on such things that I have run small and large businesses and have worked in the public sector as well. My background in this stuff is therefore pretty wide ranging. I welcome many aspects of the Bill, including the provisions on statutory paternity pay and statutory adoption pay; I also welcome the provisions clarifying paternity leave and adoption leave, as well as maternity leave, pay and rights. I welcome the provisions on fixed-term work and equal treatment of fixed-term contract workers; I also welcome the provision on union learning representatives.
I thought that I would make that preface because often in these debates one goes on to make criticisms of a Bill's drafting and suggest ways in which it might be improved. The Opposition are constantly banging on about red tape and gold plating, but when I asked the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) which regulations he would keep, he would not say, nor would he tell my hon. Friend the Member for Manchester, Central (Mr. Lloyd) which regulations he would get rid of. It is difficult to engage in political debate when all Conservative Members seem to talk about is cumulative effect. The hon. Member for Bexhill and Battle (Mr. Barker) talked about £15 billion of cumulative red-tape and extra costs since 1997; I think that that was the flavour of his remarks. That figure may be right, but we are talking about quality of life. Simply to focus on financial costs is to be like an old-fashioned Stalinist and say, "It is all about material gain; the quality of human life does not come into the equation." Of course it does; increased regulation in many parts of our life is desirable. Regulations and laws are the basis of civilised lives.
Mr. Barker: Does the hon. Gentleman not accept that we all seek a better quality of life for working parents? However, the Bill will impose more regulation, which will put working parents on the dole; that is not something that any of us want to achieve.
Rob Marris: I agree that none of us wants to put anybody on the dole; that is why, under a Labour Government, millions more people are in work than under the Conservative Government. The Bill's provisions are not at all likely to put more people on the dole. The hon. Gentleman and I may disagreebut I do not think that the Bill will do that.
It is not surprising that there has been a threefold rise in the past 10 years in applications to industrial tribunals, and now employment tribunals; I want to focus on the part of the Bill that deals with that. Arguably, the Conservative Government fostered poor industrial relations during their period in office. Until recently, there was a continuing decline in union membership—happily that has stopped—and a decline in collective action to resolve disputes. A more individualistic approach was adopted; individuals are more educated and aware of their rights, so are more likely to seek to enforce them. We have had more rights, not only under the Conservative Government and, I must acknowledge, under the Disability Discrimination Act 1995, but, in the past four years, under the Labour Government, including considerably more rights for workers. When people have more rights, it is unfortunate that occasionally employers do not respect those rights, so employees have to go to industrial tribunals.
The thrust of the Bill, which is to encourage employees—sadly, not workers, but that is another debate, which I hope we will have—and employers to resolve disputes in the workplace, and not to bring them into the tribunal arena, is commendable, particularly the disciplinary and dismissal procedure in schedule 2. However, I am concerned that parts of the Bill seek to squeeze people out of their rights at industrial tribunals and their rights to go to those tribunals.
The nub of the problem that we face when legislating is that in many cases we would like—Opposition Members would certainly like—to simplify legislation. My hon. Friend the Member for Aberdeen, Central (Mr. Doran), who practised as a solicitor before he entered Parliament, mentioned the Trade Union and Labour Relations Act 1974, which arose from the Donovan report of 1968. That referred to setting up tribunals which would be "speedy, informal and inexpensive". We are not going back, however much hon. Members on either side of the House may wish it, to such loose tribunal arrangements.
The regulatory impact assessment in the explanatory notes—which I know are not part of the Bill, but they attempt to explain the Bill's provisions—explains how some parts of the Bill will decrease costs and some parts will increase costs. As I said earlier, the issue is not merely cost, but quality of life. I have a slight difficulty with the explanatory notes, with which I am sure my hon. Friend the Minister will help me in due course: no source is given for the figures. Presumably the notes are taken from a more compendious document, but without that sourcing, some of the figures appear to be mere conjecture.
When the Bill reaches Committee, assuming that it receives its Second Reading today, I ask the Minister to consider producing some dummy orders, such as those that were provided to members of the Standing Committee on which I was privileged to serve, which considered the Export Control Bill. Such dummy orders would flesh out the many provisions which allow the Secretary of State to make orders or regulations.
The statutory dispute resolution procedure in schedule 2 is one such matter. The wording of the schedule on that procedure could and should be tightened, and I urge the Government to reconsider it. Arguably, the standards in the schedule are too low and below the current ACAS standard. The ACAS code was amended last year and
appears in the ACAS handbook "Discipline at Work". The statutory floor in schedule 2 is lower than the standard that ACAS recommends.There is nothing in schedule 2 about informing employees of their right to be accompanied if they are members of a recognised trade union. The schedule does not state that the outcome of the disciplinary procedure should be transmitted to the employee in writing. There are four limbs to the procedure, only one of which, the modified grievance procedure, refers to the outcome being communicated to the employee in writing.
Like my hon. Friend the Member for Aberdeen, Central, I have conducted industrial tribunals on both sides—for employers and employees—and like him, the first one that I did was for an employer, and I lost it. Those tribunals often grapple with different recollections of events. If only there had been at a crucial time a letter from an employer stating, "This is what I am doing, and this is why I am doing it," that would have helped a great deal.
The crux of my problem with the Bill, which I am sure can be resolved in discussion with the Government and in Committee, is clause 34, to which my hon. Friend the Member for Manchester, Central (Mr. Lloyd) referred. The clause would overturn the Polkey case. In Polkey v. A E Dayton Services Ltd., the decision was made by the Judicial Committee of the other place in 1987. At the time it was said—I think that this is a contemporary quote from the late 1980s—by Michael Rubenstein, who some hon. Members will know is a distinguished commentator on industrial relations matters and is a long-time editor of the Industrial Relations Law Reports:
- "Failure to follow a fair procedure will now"—
- "lead to a finding of unfair dismissal in a far higher proportion of cases. . . This, in turn, will re-emphasise to employers the importance of adopting a fair procedure before taking the decision to dismiss. That will lead to fewer employees being unfairly dismissed."
With the precedent of Polkey, the regime of the past 14 years required employers to do three basic things: to warn an employee if that employee was at risk of dismissal; to discuss what might or might not occur and what dissatisfactions the employer might have; and to consult the employee over dismissal. That is a pretty basic, low-level requirement. Even then, an employer could go before an employment tribunal and say that it would have been utterly futile to go through the procedure.
The procedures post-Polkey and until the Bill were minimal anyway. Now the Bill introduces a sea change in the minimum standards, as set out in schedule 2, which all employers are to adopt as a floor, though employers can and should adopt better procedures, not least the ACAS code that I mentioned. The standards in schedule
2 will be reflected in the contract of all employees. Everybody is supposed to work together, but under clause 34 the employer can go along to the tribunal and say, "Well, it would have made no difference if I had gone through a proper procedure. I would have still fired the so-and-so."The employer can be lackadaisical and need not carry out a thorough investigation, the hearing and the internal appeal process can be a travesty, but the employer can go to the tribunal and say, "I would have fired the employee anyway. I don't like him," and get away with it. As far as I can tell, the increase in awards under clause 31(3) will not apply. Those are percentage uplifts, and a percentage uplift on nil is, of course, nil. It is unclear to me, and I hope the Minister will clarify this, whether under clause 34(3), an employee dismissed in those circumstances would get an award of four weeks' pay for the employer's failure to follow the minimum statutory disciplinary procedure.
In the explanatory notes, paragraph 153 states that the get-out clause for an employer, if I may call it that,
- "will only apply for procedures that go over and above the 3-step procedures"—
- "that will now be part of the contract of employment."
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