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Mr. Hammond: I declare an interest as an employer. I hope that we will hear very full declarations of interest from hon. Members on both sides of the House either as employers or as recipients of the largesse of trade unions, in the form of sponsorship of their constituency parties.
As the Minister said, the purpose of the new clause is to include in the Bill—
Mr. Tony Lloyd (Manchester, Central): On a point of order, Mr. Speaker. The hon. Gentleman invites hon. Members to declare an interest. That is a reasonable request and I am a member of a trade union. However, as there is no such thing as sponsorship, will you clarify whether it is necessary for members of trade unions to declare an interest?
Mr. Speaker: If a matter is recorded in the register, it should be declared. If it is not, it is up to hon. Members to decide what to do. I hope that that helps the hon. Gentleman.
Mr. Hammond: Thank you for that ruling, Mr. Speaker. As I understand it, following recent clarifications of the rules, it is not necessary for hon. Members to list sponsorship of their constituency parties in the register. However, as we will discuss amendments and new clauses that are a clear and well established part of the Trades Union Congress agenda, it will help people who are interested in the debate to know whether the hon. Members who propose them—
Mr. Speaker: Order. When those matters are before the House, hon. Members will decide what to do. At the moment, we are debating new clause 6 and the associated amendments, and the hon. Gentleman should stick to that subject.
Mr. Hammond: I am grateful to you, as ever, Mr. Speaker, for your guidance.
As the Minister advised the House, new clause 6 includes in the Bill measures that would otherwise have been provided in regulations under clause 33, which is now deleted. It is interesting that the Government have chosen to include in the Bill detailed procedures that would otherwise have been introduced by regulation. Many clauses leave matters to be disposed of by regulation, and the Government have chosen this one clause for special treatment—removing the regulation- making power and adding a fairly lengthy new clause that spells out in detail the procedure to be followed.
Interestingly, in its briefing to members of the Standing Committee the TUC suggested that it expected the Government to table amendments to clause 33. Conservative Members were somewhat surprised that no such amendments were forthcoming in Committee, but it seems that the TUC was ahead of Parliament in knowing the Government's intentions, and their agenda—or perhaps I should say the TUC's agenda—has now been revealed.
In Committee, Conservative and Liberal Democrat Members urged the Government to reveal the details of the regulations that would arise from many clauses; so will the Minister explain why the provisions in clause 33 need to be spelled out while others do not?Grouped with the new clause is new schedule 1, which is an interesting device because, subject to a minor amendment that the Government will move later, it is identical to schedule 3. The only plausible explanation is that the Government intend, at some point in the future, to amend one or other of the schedules through regulation so that different jurisdictions apply to two different parts of the Bill. That is an unsatisfactory way for a Government to proceed.
The original decision—that it would not be necessary for an employee to have gone through the entire statutory grievance procedure before being able to bring a case before a tribunal—was a concession to lobbying from the trade union movement. That is clear from the briefing that the TUC put out for Second Reading and to the Committee. Now, an employee will have had only to write a letter to his employer outlining his grievance and then to wait 28 days before instigating proceedings in a tribunal. It is not clear to Conservative Members that that will have the effect claimed by the Government of significantly reducing the number of cases that come before tribunals.
I should like to probe the Minister a little further on the provision in the new clause for the Secretary of State, by regulation, to exclude certain classes of case from the requirement to have taken the first step. As I told the House in my intervention on the Minister, the first step consists only of writing a letter. I find it difficult to imagine a case in which the obligation to write a letter to one's employer outlining the grievance was so traumatic that it would be better to provide that the employee shall go straight to an employment tribunal.
I can understand how the provision got into the Bill. The original thinking was that the complete statutory procedure would have to be gone through before recourse to an employment tribunal, so there would of course be cases in which a face-to-face confrontation between employer and employee would be inappropriate—for example, in cases involving violence or allegations of sexual harassment. However, I am unable to think of a single substantial class of case in which it would be inappropriate to impose on the employee a requirement only to write a letter. I shall be grateful if the Minister, using the considerable resources of ingenuity available to him, comes up with at least one convincing example, so that the House can understand the need for the power to exclude.
The matter is causing employers' organisations some degree of concern. That concern flows from a fact that will be a recurring theme this afternoon: that the Government are under obvious pressure from trade unions to concede yet more. Every time the Secretary of State is given a power by regulation to concede the agenda of the TUC, there is a danger that further concessions will be made in the wider horse trading that apparently goes on between the Government and the TUC.
The Opposition are concerned that a loophole is built into new clause 6 and that the Bill including new clause 6 will not have the impact that the Government desire, in terms of reducing the number of tribunal cases. We are
aware of the need to monitor the effectiveness of the provisions to ensure that they deliver the benefit for which the Government, employers and responsible trade unions hope—of reducing the number of cases that go to employment tribunals without those involved even embarking on existing in-work procedures for dispute resolution.I wish to draw the House's attention to new clause 6(6). The procedure outlined therein departs from, or goes beyond, what the Minister described to the Committee. Subsection (6)(a) is unlikely to apply: it is unlikely that an employee will bring to a tribunal a case in which the information that he lays is such as to disqualify him from bringing it on the face of the facts. Subsection (6)(b), if I understand the provision correctly, places on the employer the responsibility for drawing the employment tribunal's attention to the fact that the employee has failed to go through the correct procedures under the statutory procedure laid down in schedule 2.
Will the Minister clarify whether an employer's failure to draw the tribunal's attention at the appropriate point to the failure of the employee to exhaust, or at least embark on, the statutory procedure will preclude that matter being dealt with at a later stage? In other words, if the employer—perhaps through ignorance: he may be a small business man who is unfamiliar with the now increasingly complex body of law—fails to draw the tribunal's attention at the appropriate point during consideration of procedural matters to the fact that the employee has not written the requisite letter and waited the requisite 28 days, or whatever period regulations specify, will it be impossible for a subsequent finding against the employer to be set aside on the grounds that the employee did not follow the correct procedure? I hope that the Minister will clarify that. It would be a further burden on employers if at that stage they had to identify the problem, so as to avoid being subjected to a decision of wrongfulness in the light of the facts.
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Amendment No. 47 sets out a power to vary new schedule 1 from time to time. Perhaps the Minister will tell us what he has in mind in varying the schedule. He must have something in mind; otherwise there would be no point in introducing a new schedule that is identical to a schedule that is already in the Bill. It is clear that the Minister intends to introduce changes at some stage.
Amendment (a) seeks to delete subsections (8) to (10). The subsections give the Secretary of State a power to amend the grounds for exclusions of a claim. The Government appear to be seeking to have their cake and eat it. On the one hand, they want to put the detailed provision of the regulations in the Bill. Presumably they have been told to do so by the TUC. On the other hand, they want to retain a power fundamentally to amend, by changing the grounds on which claims to a tribunal would be excluded by regulation. Surely that is not the appropriate way in which to proceed. Having decided not to use regulation and to set out provisions in the Bill, the Government should get things right the first time. They should stick to their guns and exclude subsection (8).
Subsections (9) and (10) would be excluded by the amendment, because they depend on subsection (8). I look forward with interest to the Minister's response.
Brian Cotter (Weston-super-Mare): I, too, should like to refer to a reference in the Register of Members' Interests. I am the managing director of a company, an interest to which I have referred before. I naturally have an interest in these matters.
I am pleased that the Government have decided to remove the controversial clause 33 and to replace it with a clause that seems far more sensible and will add greater clarity, which is what we were looking for. The Liberal Democrats tabled an amendment to clause 33 before we embarked on Report. We were concerned that the clause, as it stood, could act as a barrier to justice for tribunal applicants with valid cases.
We are concerned that it would be inappropriate to rule out claims altogether where they concern sexual harassment or racial abuse, for example. The hon. Member for Runnymede and Weybridge (Mr. Hammond) referred to the issue and wanted clarification, which I expect the Minister will give.
There may be cases where a woman is being exposed to sexual harassment or intimidation of some sort. She might feel so nervous and concerned that even sending a letter could pose a problem. If violence could be involved, for example, she might fear some form of retribution. She might be concerned about stirring things up. I am sure that the Minister will have some general thoughts about that.
The Minister has said that applicants will be required to send only written notice of the grievance to the employer and wait 28 days for a response before an application to a tribunal can be made. That is fair enough. I acknowledge that it would be reasonable to expect most employees to take the first step, but I still have concerns. That is why we tabled an amendment.
In Committee, the Minister seemed to agree with me when he said:
- "We recognise, however, that there will be rare cases in which the threat of violence or serious personal harassment may make it dangerous or intimidating for applicants to take step one action before making an application."—[Official Report, Standing Committee F, 18 December 2001; c. 196.]
- "detriment in relation to national minimum wage"
How will new clause 6 operate in conjunction with other statutory rights, such as the right to paid leave? Will the Minister repeat the assurance that he gave on Second Reading on the original clause 33 and clarify the application of new clause 6 to other measures? Can he explain who will be in a position to decide whether or not the exception is applicable, and whether applicants have a legitimate reason for taking action? Will that be for the tribunal to determine at a preliminary hearing and would it not cause further complications in tribunal proceedings? In such cases, will the second chance, which will allow the applicant to go back and complete the grievance procedure—referred to by the Minister on 18 December in Committee—apply to new clause 6? If so, does the
Minister share the Law Society's concerns that such an action may sour relations between employees and employers?Finally, can the Minister provide an assurance that applicants who do not give the correct legal label to a grievance in their written statement will not be prevented from pursuing their claim in an employment tribunal? How will that influence what is brought up in the original written statement, and how much influence will the written statement have on proceedings at the later tribunal? I look forward to the Minister's reply, but generally we welcome the fact that the problem raised in Committee has been addressed.
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