Employment Bill

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Mr. Hammond: The Minister has cited as one of the circumstances in which the provisions would not apply a situation in which collective procedures, rather than the statutory procedure, had been used. Is not the import of what we have just discussed in clause 30 that those collective procedures would be additional to and consistent with the statutory procedures? If so, it is not clear to me why he needs to exclude compliance with the statutory procedures. By implication, those would have been complied with because the broader and more extensive procedure that he has in mind had been complied with.

Alan Johnson: Simply, if, for example, a grievance had been taken up by a trade union and represented collectively-whatever that grievance might be-it would be unfair on employers to expect each individual to go through the grievance procedure when the matter was being dealt with collectively with the employees. We do not want to duplicate the process and force employers to go through a procedure several times when the issue is collective.

A balance needs to be struck. We are determined to get it right, and we will consult on the regulations. I recognise that these are important issues, but I hope that I have given some flavour of what we expect from the provision to which amendment No. 54 refers.

Are we also debating amendment No. 55?

Mr. Hammond: Yes.

Alan Johnson: I am here courtesy of Nurofen this morning, but I will struggle through.

Amendment No. 55 attempts to remove the Government's ability to modify statutory procedures. However, I believe that the provision that it would delete is sensible and necessary. We have no intention of making wholesale modification of the procedures, but we need flexibility in case, when we come to make the regulations, we discover circumstances in which it would be sensible to adjust them.

Let me give the illustration for which the hon. Gentleman asked. We might want to allow for a delay in the disciplinary procedure should an employee under notice of dismissal make an application to a tribunal for interim relief while the procedure is taking place. In such circumstances, the outcome of the interim relief application would be crucial to the decision about the dismissal. That would require a modification to the procedure because under the procedure, the timing of the meetings is required to be reasonable. As hon. Members will know, interim relief is available where the tribunal thinks that the employer may have dismissed for certain reasons that are automatically unfair. Union membership is one example, as is the so-called whistleblower's act of making a disclosure in the public interest.

I hope that those examples give the hon. Member enough substance to be able to withdraw what is, as he said himself, a probing amendment.


Mr. Hammond: I am grateful to the Minister. His comments were very useful. However, I have to probe him a little further on collective dealing. Does the Minister propose that where a recognised trade union is negotiating on behalf of its members in a workplace, other employees who are not represented by the union would be prevented from raising a similar matter through the grievance procedure? Is that what the Minister has in mind? Can he assure the Committee that the availability of a separate procedure for collectively represented workers will not in any way exclude the rights of unrepresented workers in a workplace where such a procedure is taking place.

Alan Johnson: It would depend on the issue. 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, given that a recognised union exists to deal with collective issues, to insist that the employer should deal with complaints about the absence of facilities individually as well. That is an important point, because I would not want to take away the rights to pursue a grievance of individuals who are not trade union members. We shall consider the point when we come to the regulations, but I hope that the hon. Gentleman understands the gist of what we are trying to do.

Mr. Hammond: I do indeed understand the purpose that the Minister outlined. I am grateful to him for recognising the potential difficulty if the Bill deprived an individual worker of what he would regard as his rights. That would place the worker in an adverse position simply because some of his colleagues were pursuing a collective route to solution of a similar grievance.

I am glad that we have had the opportunity to flag up that concern. I am grateful to the Minister for undertaking to consider it. I hope that we can return to the point later in the Bill's consideration to ensure that we do not inadvertently create a group of second-class employees who have fewer rights than colleagues in a non-unionised workplace, simply because some of their colleagues are unionised. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 56, in page 36, line 45, leave out paragraph (b).

The Chairman: With this it will be convenient to take amendment No. 57 in page 36, line 48, leave out paragraph (c).

Mr. Hammond: Again, I suspect the grouping of these amendments is more in the interests of economy than anything else. Amendment No. 56 is a probing amendment, to seek the Minister's clarification of just what jurisdictions he has in mind. A list of jurisdictions is contained in schedule 3, and subsection (6)(b) gives the Secretary of State the power to make provision, excluding the application of clause 31 to proceedings, relating to claims of any specified description in relation to any specified jurisdiction. That is very widely drafted, and we are being asked to scrutinise a Bill that contains very wide regulation-making powers. It is appropriate to ask the Minister to explain just what he has in mind and why he thinks he needs that very wide power.

Amendment No. 57 reverts to a familiar theme and a debate that I guess we have already had in relation to another part of the Bill. It is about the power that the Minister is giving himself to define someone who is not an employee as an employee for the purpose of clause 31, and, indeed, to define someone who is not an employer as an employer. Without wanting to go round the loop of the employee-worker debate, I maintain that the power is unnecessary because if at some future stage the Government are determined to extend the definition of employee in general employment protection legislation, a general application change would have to be made to the primary legislation, although I do not know exactly how that could be done. Nevertheless, such changes would affect a wider body of legislation than this Bill.

It is unclear why the Minister needs to take a specific order-making power to deal with something that would arise only as part of a broader decision to change the boundary between employee and worker or the definition of who is subject to or benefits from the Bill and similar legislation. I am unhappy that he is taking a power to do something that could not be done by order if it were to apply generally. If the power was of narrow application to the clause, it would sit oddly with the Secretary of State's confirmation on Second Reading that the question of the worker-employee distinction would be part of the Government's broader review of employment legislation, which will, if she believes it necessary, lead to legislation during the course of this Parliament. I would be pleased to hear the Minister's views on those two subjects and an explanation on my last point.

Alan Johnson: On amendment No. 56, schedule 3 lists the jurisdictions to which clause 31 applies. The probing amendment is searching for an example of where we may need the power that the amendment seeks to exclude so that that example may be addressed in the regulations, which returns us to the collective versus individual argument. For example, although unfair dismissal is one jurisdiction listed in schedule 3, 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. This example relates to a jurisdiction already listed in schedule 3, but subsection (6)(a) enables new jurisdictions to be added to the list. When and if we consider making such additions, it may well become apparent that the statutory procedures are suitable for some descriptions of claims that can be brought under the jurisdiction but not others. It is therefore prudent to be able to exclude the procedures from applying to particular descriptions of claim within a jurisdiction that might be added in future.

Prudence also drives us to oppose amendment No. 57. We have previously cantered round the worker-versus-employees course. It is sensible to retain the flexibility to widen the coverage of the clause beyond employees, should that be considered necessary in the light of next year's employment legislation review. The subsection that the amendment seeks to remove will give us the ability to implement the findings of the review if it recommends an extension of the clause to non-employees. The hon. Gentleman does not know how that could be done, and in that he is at one with me, but we should not pre-empt the outcome of the review. It may lead to changes in some areas, it may lead to no changes or it may lead to the type of blanket change to which he referred, which would have to be dealt with in other legislation.

Mr. Hammond: In my opening remarks, I should have asked the Minister to give a categorical assurance that he will not introduce an order under this subsection other than as a consequence of the comprehensive review about which the Secretary of State has spoken. He gave such an assurance the last time we discussed the worker-employee distinction, and if he can give us such an assurance now it would alleviate our concern.

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