Mr. Hammond: I am grateful to the Minister for his clarification. I do not find anything unreasonable in the principle that he sets out. A provision under clause 31 gives someone a significant financial incentive to comply with the procedure before lodging a claim with the tribunal. As long as tribunals make use of their discretion to go above 10 per cent. and up to 50 per cent. in order to make it clear to applicants that they are expected to use the statutory procedures unless there are clear and good reasons why they should not, that side of things should work very well.
We are discussing an exclusion of the ability to access a tribunal before going through the procedures. Someone might wish to do that for some reason, even though they recognise that they will be taking a financial risk with the size of their award in doing so-they may well be penalised for not having gone through the procedures first. I agree with the Minister that the test should be framed not to exclude claims that reasonably ought to be tested in the tribunal. I am happy with his explanation on that.
I am slightly puzzled by what the Minister said about amendment No. 59. The Minister will correct me if I misinterpret what he said, but I am reading from the TUC brief. I think that he said that in order for a claim to be admissible, the relevant party must first set out in writing the basis of the grievance and then a response would have to be forthcoming. Those would have to be the first two steps. The Minister went on to say that that should not apply to unfair dismissal because-I understand the logic of this-the power lies with the employer to dictate whether the process moves forward.
However, that power surely lies also with the employer in relation to all other jurisdictions if the requirement is for the first and second steps to have been carried out. As I said, and as I read in the TUC brief, those steps are that a grievance would have to have been put in writing and that a response would have to be forthcoming or a disciplinary procedure set in motion within a specified time scale.
It appears to me that that second step lies in the hands of the employer. I do not, therefore, understand the philosophical distinction between unfair dismissal and the other jurisdictions. If the Minister can explain that, I will be very grateful.
Brian Cotter: I thank the Minister for taking on board what has been suggested. I realise that it is difficult to take account of variable circumstances, especially where sexual allegations of some sort are concerned. I think, however, that it is very important that the suggestion is taken on board and seriously addressed in regulations. Otherwise, a great problem will arise. I welcome the Minister's comments, and will not press the amendment.
Alan Johnson: I appreciate the points that hon. Members have made.
We do not intend step two of the grievance procedure to be part of the admissibility criteria. We intend step one to be included, which is entirely in the hands of employees. As I said in a previous debate, employers need to know what grievance their employees have before they come to an employment tribunal. By step one, the employee sets out the nature of the grievance. The whole list is set out in schedule 3, including the minimum wage, redundancy pay, discrimination and other things.
After the employee has put the case in writing, we propose to allow a period-we have not decided it definitely, but about four weeks is likely-for the employer to respond rather than sending the letter to the employer and then filling in the IT1. We do not envisage that to include step 2. I hope that that clarifies the point made by the hon. Member for Runnymede and Weybridge. The discipline procedure is entirely driven by the employer through statute, so it would be unfair to include discipline in the admissibility criteria. It is quite fair and practicable to include grievances if we follow the first step.
There has not been a debate on whether that is sensible, but most people seem to see the sense in it. The Institute of Directors said that it welcomed the emphasis that the Secretary of State for Trade and Industry placed on using internal procedures before applying for a tribunal. The CBI said that the most crucial element of the package is the proposal that employees must raise grievances with their employer before going to a tribunal. Employers are in no doubt that the clause relates to grievance. If I have clarified that sufficiently for the hon. Gentleman, I hope that he will withdraw his amendment.
Mr. Hammond: As I said before, I do not have a problem with the principle at stake here, which I think is perfectly sensible. I was confused because the TUC brief suggested that the TUC is a little confused-employers may understand the matter perfectly well-in talking about a first and second step that will need to have happened. I thought that the Minister mentioned two steps as a prerequisite to accessing the tribunal in such circumstances, but the record will show whether that is correct.
To be absolutely clear, I think that the Minister is now saying that the provision will apply in the case of a grievance procedure, and that the only requirement will be the first step, which is that written notice of the grievance has been given by the employee to the employer. Once that has been done, the employee will have satisfied the requirements for being allowed to apply to the tribunal, notwithstanding the fact that the remainder of the statutory procedure has not been carried out. It is a one-step hurdle, not a two-step hurdle. The Minister nods, so my point is clarified.
I have no problem with what is being sought here, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Hammond: I beg to move amendment No. 61, in page 37, line 27, leave out subsection (2).
This looks like a subsection that definitely needs to be challenged. The Secretary of State will be given a regulation-making power to amend or repeal any enactment. I thought that it was a general principle in this place that we did not give the Secretary of State wholesale power to repeal chunks of primary legislation by regulation.
Following on from the comments of the hon. Member for Manchester, Central in the last debate, we might want to ponder on the possibility that some future Secretary of State might use this regulation-making power to repeal whole swathes of employment protection legislation on the strength of a 90-minute debate in Committee. I take it as a general principle that it is very poor practice to give the Secretary of State unfettered powers to repeal primary legislation by regulation.
If I have misunderstood the power being granted, no doubt the Minister will correct me. My understanding is that the clause will give the Secretary of State the power to repeal any piece of employment-related primary legislation by regulation on the strength of a 90-minute debate in a statutory instrument Standing Committee. I would have to urge my hon. Friends to resist such a power.
Mr. Lloyd: I hope that my hon. Friend the Minister will be able to assure the Committee that the intent of subsection (2) is nothing like as wide as the hon. Member for Runnymede and Weybridge suggests.
Alan Johnson: Absolutely.
Mr. Lloyd: My interpretation is that subsection (2) is limited by subsection (1), and, specifically, can only be used in pursuit of primary claims to employment tribunals and the like. It is a wide power even at that, which is why I asked my hon. Friend for clarification earlier on how exactly it would be used. I very much welcome the comment that he put on the record.
I hope that he is able to reassure us further. I know that from his reaction to my comments already that my interpretation is the accurate one, and not that of the hon. Member for Runnymede and Weybridge. Nevertheless, it would be helpful if my hon. Friend could set out the Government's intentions. What do they have in mind and are there particular parts of existing legislation that they would seek to repeal?
Mr. Hammond: I am grateful for the hon. Gentleman's clarification. From the Minister's reaction, the hon. Gentleman's interpretation was clearly right. Does the hon. Gentleman not think, however, that it would have been better if the Minister had used schedule 6, consequential amendments and repeals to spell out precisely what other pieces of legislation needed to be amended in order to give effect to clause 33(1)?
Mr. Lloyd: I express affection for all manner of improvements in the way that we announce our legislation. Pre-legislative screening would have been very helpful. The Minister himself would probably agree with that, and that is the direction in which we ought to go. If we were not under the time pressure that our present procedure applies, it would also have been helpful to have had the regulations so that we could examine their full impact. The best that we can do is to ask the Minister to do his best to talk us through them at this stage so that the Committee has an idea of the Government's ambitions and the limitations on those ambitions.
As a general point, Parliament has to be extremely careful in giving power to Secretaries of State to make law by regulation. We need be careful not because that power is extraordinary-it has been used by every Government over time-but because it is intended to give note powers that fundamentally alter the law, but powers that amend the law within the spirit of the Bill involved. Important issues are involved.
The whole Committee is sympathetic to the need to constrain future Secretaries of State. We know not when Ministers will come or go. I wish my hon. Friend the Minister many years in office, but I want to tie him to his own words. If he moves on to pastures greater and better, I hope that he will bequeath to his successors a framework that they can operate.
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