Employment Bill

[back to previous text]

Alan Johnson: I am grateful to my hon. Friend the Member for Manchester, Central. I do not understand how anyone could move on to a greater job than being in Standing Committee F to discuss the Employment Bill.

We do not intend to repeal large chunks of employment relations legislation. Use of the power must be related to the admissibility regime in subsection (1). Establishing that regime is a major step and the drafting of the regulations will require carefully attention. We shall consult widely on them before they are introduced.

The admissibility criteria will apply to many, although not all, the jurisdictions in schedule 3 and they will apply to many aspects of employment law. It is not a simple task to apply the admissibility regime to such a diverse set of legal rights and requirements and the criteria may fit more neatly into some parts of the legal framework than others. It is prudent to take the power to make any necessary amendments to ensure that the criteria can be clearly and consistently applied across all jurisdictions. That is why we need the power to amend the specific time limit provisions relating to each jurisdiction to be subject to the regime.

The amendment would remove that essential flexibility from the regulation-making process. I have said several times that the regulations will be subject to the affirmative resolution procedure. When initially set, they will be subject to the widest consultation and will relate only to clause 33(1) and not to any other part of the Bill. With those assurances, I hope that the hon. Member for Runnymede and Weybridge will withdraw his amendment.

Mr. Hammond: The Minister has confirmed, as his hon. Friend the Member for Manchester, Central envisaged, that the powers under subsection (2) are more limited than I had thought, and I am glad about that. However, we are discussing a gradual slide down a parliamentary slope. Sooner or later, someone will have to sit down and work out what needs to go into schedules 6 and 7 to amend and repeal other legislation. In general, it is a bad principle to start including a general power to repeal or amend anything instead of working out what needs to be amended or repealed. The issue is not worth going into the trenches for and, because of the timetable, trench warfare is out of fashion in Standing Committees, much to my regret.

The issue is worth noting. Schedules 6 and 7 purport to contain consequential amendments, repeals and revocations, but what is the point of them? Why not have a general power for the Secretary of State to amend, by regulation, anything that needs to be amended to make the implementation of the Bill easier and smoother. I do not like that trend in legislation, and I should have preferred the Minister to have taken the time to decide what he was going to do and then to work out what revocations, repeals and amendments he needed in order to give effect to this part of the Bill.

Having made that point, I shall not press the amendment because the Minister has confirmed that the power will be used narrowly, although that does not make the principle a good one. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 62, in page 37, line 30, after 'Service', insert

    'and any other organisation representing persons appearing to the Secretary of State to be likely to be affected by the regulations'.

The amendment repeats an argument that we had on another clause. I would like a requirement for the Secretary of State to consult not only ACAS, but users of employment tribunals. There are defined user groups in all regions of England and Wales and it would be relatively simple for the Secretary of State to consult those user groups. I see no reason why good consultative practice in pursuit of open government should not include consulting those user groups as well as ACAS. I am disappointed that last time we debated the matter the Minister was reluctant to include such a requirement in the Bill, but if he were able to assure the Committee that his intention is that in practice those user groups would be consulted, I would be satisfied at this stage.

Alan Johnson: This is a re-run of a similar amendment, No. 45. ACAS represents major figures from all sides of industry, leading academics and even employment lawyers. It has unrivalled knowledge and expertise to help us to frame these important regulations. We shall, of course, consult other organisations about the regulations in clause 33 before we introduce them. We shall consult widely on other changes to the regulations, but there is a practical problem with the word ''used''. It would require us to consult any organisation that represents people likely to be affected, so it would commit us to wider consultation on every single change in future. People ''likely to be affected'' is so wide-ranging that we would be bound to miss someone and any Government would almost certainly fail to meet a statutory consultative requirement drafted in such terms.

Mr. Hammond: Can the Minister satisfy me with a specific undertaking that he would include in consultation the tribunal user groups in each tribunal region?

Alan Johnson: In terms of the initial application of the regulations, yes. We consulted widely on ''Routes to Resolution'', and we shall consult again on the regulations.

Mr. Hammond: The Minister misinterpreted what I said. The requirement under clause 33(3) is that the Secretary of State must consult ACAS before exercising the powers in subsection (1). I am asking if he will also give an undertaking to consult with the tribunal user groups in each region before exercising those powers. I realise that the amendment is widely drafted and may not be appropriate, but I am seeking an assurance from him that the tribunal user groups will be consulted.

Alan Johnson: I am not trying to be difficult, but I do not like making legislation on the hoof. If I give that assurance, every future consultation, however narrow, small and pedantic, would have to be widened beyond ACAS. ACAS has considerable experience in dealing with employment tribunal users and the employment tribunal judiciary. I do not want to give assurances that would make life more difficult in future, so I am not willing to give the assurance that the hon. Gentleman seeks. I hope that the hon. Gentleman will withdraw his amendment, and I shall consider what he said to see whether there is a case for stating on Report, without introducing it in legislation, that the user groups should be consulted on every occasion.

Mr. Hammond: The Minister is now going too far. I am ready to concede that the amendment is widely drafted and could cause difficulties. I hoped that he would find it easy to put on the record of the Standing Committee, but not to write into the Bill, that the Secretary of State will, in the narrow set of circumstances in which the powers would be exercised under subsection (1), consult with the clearly defined and limited number of tribunal user groups in each of the employment tribunal regions. The user groups will draw their own conclusions from the fact that the Minister has not been able to give that undertaking. They would expect to be consulted and are right to do so because the issue has been raised. So long as the Government propose to allocate sufficient time to the Report stage, I will ask the Minister to deal with such issues then, as well as with the headline issues to which we must return. I offer the Minister the opportunity to say whether that will happen.

During the passage of the Bill, either on Report or in the other place, I hope that the Minister or a colleague of his will give that simple undertaking. That would entirely satisfy me on the point that lies behind this possibly unwisely drafted amendment. In recognising that it is too wide, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 ordered to stand part of the Bill.

12.15 pm

Clause 34

Procedural fairness in unfair dismissal

Rob Marris: I beg to move amendment No. 78, in page 38, line 1, leave out from '(1),' to 'shows' in line 4 and insert

    'failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he'.

The Chairman: With this it will be convenient to take amendment No. 27, in page 38, line 5, after 'procedure', insert

    'and the dismissal would have been fair apart from this section.'.

Rob Marris: The amendment seeks to clarify section 98A of the Employment Rights Act 1996. The meaning of new section 98A(2) and the context in which it sits have been the subject of much debate on Second Reading. Several individuals and organisations have expressed concern about the way in which the new regime would operate, particularly in relation to the overturning of Polkey. The amendment would clarify and probe those issues.

Under new section 98A(1), unfair dismissal will take place if there is a breach of the basic procedure of schedule 2. That will lead to four weeks of compensation as set out in new section 112(5). The right to be accompanied under the schedule 2 basic procedure was clarified by the Minister when we debated it; he kindly confirmed that. The right to a fair hearing is implicit in schedule 2, and I hope that he will be able to make that explicit now. If there were no proper investigation under the basic schedule 2 procedure, I hope that he will also confirm that the employer who failed to carry one out would be caught by new section 98A(1)-a breach of the procedure-which would lead to an automatic finding of unfair dismissal.

I understand the Government's desire to encourage employers to adopt at least the basic procedure by introducing it statutorily, but we also need to encourage enhanced procedures-better than those in schedule 2-in the interest of better industrial relations and of having fewer cases come before employment tribunals because differences have already been resolved in the workplace. New section 98A(2) overturns the long-standing case of Polkey in 1998, which was raised on Second Reading. I am anxious that overturning Polkey will lead to employers not using the enhanced procedures and hiding behind the no-difference test. They might say that they would have got rid of the employee anyway and the fact that they did not follow the procedure does not matter because of what is stated in the legislation. I appreciate the Government's desire, encompassed in the Bill, to encourage enhanced procedures and the fact that, if we did not have the new subsection, an employer might be hoist by the petard of a minor breach of an enhanced procedure. If an employer were so hoist, he would be less likely to have an enhanced procedure for fear of going wrong, and would be more likely to fall back on the basic procedure under schedule 2. Nevertheless, proposed new subsection (2) raises questions, some of which I have tried to elucidate today. The Minister mentioned a forthcoming review of such issues. I seek his assurance that, in overturning Polkey, the review will establish whether proposed new subsection (2)-as drafted, or in the light of my amendment-dilutes enhanced procedures that improve on the basic schedule 2 procedure, thereby enabling employers to hide behind the wording, or whether the subsection results in employers moving away from enhanced procedures that operated before the Bill's enactment.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 18 December 2001