Employment Bill

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Clause 38

Failure to give statement of employment particulars, etc.

Mr. Hammond: I beg to move amendment No. 80, in page 41, line 21, after 'document', insert

    'purporting to be a document'.

The Chairman: With this we may take the following amendments: No. 81, in page 41, line 28, after 'document', insert 'purporting to be a document'.

No. 82, in page 41, line 33, at end add 'and,

    (d) the breach is material to the proceedings in question before the tribunal'.

Mr. Hammond: I will not say that this amendment is a probing one, because a substantive point is involved, but perhaps it has been dealt with in a way that I have not understood. The matter is complicated. The purpose of clause 38(4) is to distinguish and deal with two classes of defaulter: the employer who delivers a statement that turns out not to be the requisite statement, being defective in some way; and the employer who delivers no statement at all. Common sense tells us that there is a difference between the offence of thumbing one's nose at the rules and saying, ''I am not going to do what is required'' and the probably lesser one of having a stab at the task but making a hash of it and delivering a defective statement.

Subsection (4)(a)(ii) refers to an employer who

    ''has not given the employee a statement purporting to be a statement under that provision''.

The important point is that the statement may or may not discharge the employer's duties under the provision, but it at least purports to do so. The sub-paragraph continues the definition,

    ''or a document capable under section 7A . . . of performing the function of such a statement''—

a substitute document.

It seems to me that to be consistent, and for symmetry, the latter passage should refer to ''a document purporting to be a document capable under section 7A . . . of performing the function of such a statement''. Anything less treats the substitute document, or the document delivered as capable of being used as a substitute document, differently from a statement that is delivered as a statement under the provision, but which is not one.

It is difficult to make the argument concise, but there is a clear lack of symmetry between the reference to a statement purporting to be a statement and the lack of

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a matching reference to a document purporting to be a document. If I have missed something about this, perhaps the Minister will clarify the matter.

Alan Johnson: Clause 38 requires employment tribunals, when an employee has successfully complained about the breach of another employment right, to consider whether the employee was given a written statement of employment particulars by his employer. If not, or if the statement is incomplete or inaccurate, the tribunal must increase the compensation; alternatively it must award compensation if the relevant jurisdiction does not allow compensation or the tribunal has not chosen it as a remedy. A mitigation of between 5 per cent. and 25 per cent. is applied.

It is at this point that matters become complicated. Subsections (4)(a)(ii) and (4)(b)(ii) refer to

    ''a statement purporting to be a statement''

under that section, which means the relevant section of the Employment Rights Act 1996, or

    ''a document capable under section 7A of that Act . . . of performing the function of such a statement''.

Those final words relate to the earlier phrase

    ''a statement purporting to be a statement''

in that section. Section 7A of the 1996 Act refers to a document, either a contract of employment or a letter of engagement, capable of performing the function of a statement purporting to be a statement under the Act. It is not necessary to add the words

    ''purporting to be a document''

in either case, as amendments Nos. 80 and 81 propose. The hon. Gentleman is right; he is doing his job, which has forced me to re-examine the clause. I took another Nurofen as a result, but I am satisfied that the clause relates to the 1996 Act. As in the previous amendment, we have agreed that the contract of employment and the letter of engagement can be written statements. That makes it easier for small businesses because they do not have to produce a third statement.

6.45 pm

Amendment No. 82 is different from, although correctly grouped with, the other amendments. We have deliberately not limited compensation to occasions when an employer's breach of the written statement requirements is relevant to the matter complained of by the employee, but such would be the effect of amendment No. 82. The clause allows the tribunal to vary the award and it would be free to relate that to the effect of the employer's breach. It would be wrong to restrict tribunals to awarding compensation only when there is such an effect.

The written statement is a key document in clarifying the relationship between employer and employee, and in helping to avoid workplace disputes. If a dispute prompts an employee to complain successfully to a tribunal and it is found that the employer has not met his written statement obligations elsewhere, the employer should incur some penalty regardless of whether the breach is material to the case being heard. I am therefore unable to agree to the hon. Gentleman's amendment and I hope that he will withdraw it and not press the rest of the group.

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Mr. Hammond: I simply do not agree with the Minister on the first two amendments, but I accept that the matter is complicated. The Minister has the drop on me at the moment because he has the wording to which the clause refers. It is not obvious that a document purporting to be capable

    ''of performing the function of a statement''

is the same as a document capable

    ''of performing the function of a statement''

purporting to be that statement. I think that is right, and I shall reflect on it. If that is how the clause works, fine. That is not immediately obvious because it is not the statement that we are examining in the latter part of the subsection: it is the document capable

    ''of performing the function of a statement''.

A statement purporting to be a statement is not strictly relevant.

Alan Johnson: I have lost the will to live.

Mr. Hammond: I have performed my function admirably, Mr. Benton, and profess myself well pleased with today's proceedings.

Mr. Kevin Hughes (Doncaster, North): Is the hon. Gentleman a lawyer, or just purporting to be a lawyer?

Mr. Hammond: The hon. Gentleman has touched on my Achilles heel. I am not a lawyer, but there is something of the frustrated lawyer in me.

The language of the Bill is impenetrable. Many Bills that we consider depend on references and amendments to other legislation, which can make it impossible to discern the end effect from a reading of the Bill. That is unfortunate. I was struck by that peculiar lack of symmetry and I shall go away and reflect on it further.

I am not surprised that the Minister did not accept amendment No. 82; I am slightly surprised that I forgot to speak to it in my opening remarks, but we shall let that pass. However, there is an idea—it lies behind much of today's discussion—that breaches of procedure must be material and have some impact before people are penalised in respect of them. There was a huge sigh of relief from employer organisations, especially small business organisations, when the Minister decided to tackle the matter head on and say that issues of fairness in dismissal and in the way in which people are dealt with at work must be about substance, not form. The issue cannot be minor nit-picking over whether procedures have been followed and whether, for example, the correct word has been used; it must be something more substantive.

However, the Minister then introduced the minimum statutory procedures to which he does not extend that logic. He says that if someone fails to comply with those procedures to the letter, they will be penalised regardless of whether that failure has any impact. That is slightly out of keeping with the his general tone and approach to the clause, and I tabled the amendment to probe his thinking on the issue. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Mr. Hammond: I beg to move amendment No. 83, in page 42, line 15, leave out paragraph (b).

The Chairman: With this we may discuss amendment No. 84, in page 42, line 18, leave out paragraph (c).

Mr. Hammond: Paragraph (b) gives the Secretary of State the power by order to

    ''make provision, in relation to a jurisdiction listed in Schedule 4, for this section not to apply to proceedings relating to claims of a description specified in the order''.

That is a wide power for the Secretary of State to disapply clause 38. If the Minister wants such a wide power, I should like him on the record to constrain his use of that power by limiting its effect. I imagine that he has in mind specific cases in which he intends to use the powers. I suspect that my hon. Friends share my belief that it is far too wide an order-making power to give the Secretary of State without some explanation of why it is needed and how the Minister intends to use it on the Secretary of State's behalf.

Amendment No. 84 will be so familiar to Committee members as scarcely to require an explanation. It deals with the Secretary of State's ability by order to provide that a person who is not an employee is an employee and a person who is not an employer is an employer. Again, I find deeply disturbing the idea that something can be what it is not merely because the Secretary of State says so. We have had that discussion before.

Alan Johnson: The jurisdictions set out in schedule 4 are the same as those in schedule 3. There may be occasions on which it is inappropriate for statutory procedures to apply to a jurisdiction in all circumstances, so schedule 3 would need to be amended. We would ordinarily expect to modify schedule 4 to reflect such changes. They would be rare and, although I always like to give an example, I have unfortunately not got one for the hon. Gentleman.

The measure is prudent. We have taken the power to amend schedule 3; as schedule 4 sets out exactly the same jurisdictions, it would be wise to hold that in reserve. The hon. Gentleman asked for an assurance that we will not use the power often. It will be used rarely; nevertheless the power that amendment No. 83 would exclude, and the power to amend those jurisdictions to which adjustment of awards apply, are equally necessary. We will consult on what exclusions should be made by regulation under either power, and consider carefully before finalising them.

Subsection (10)(a) gives a power to add new jurisdictions to the list in schedule 4. When and if we come to consider making such additions, it may become apparent that the written statement penalty should apply to some descriptions of claims that can be brought under the jurisdiction, but not others. It is therefore only prudent to be able to exclude the penalty from applying to particular descriptions of claims within a jurisdiction that is added.

Amendment No. 84 is an old friend. The hon. Gentleman mentioned that we had been around this course several times. He asked for assurances that we

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would not want any change in advance of the worker-employee review, which we intend to conduct next year. I am happy to give that assurance again on this amendment, as with the others.

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