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New Clause 18
Protection of Journalists
After section 104C of the Employment Rights Act 1996 (c.18) insert
"104D Journalists
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed, if the reason (or, of more than one, the principal reason) for the dismissal is that
(a) the employee works as a journalist and,
(b) refused (or proposed to refuse) to carry out any act that would amount to a contravention of the Press Complaints Commission Code of Practice that applies at that time." .'. [John McDonnell.]
Brought up, and read the First time.
John McDonnell : I beg to move, That the clause be read a Second time.
Journalists have come under pressure in recent times with regard to their employment, as a result of their courage in standing by their code of practice as agreed by the Press Complaints Commission. A number of journalists have made it clear to their employers that they wish to uphold the status of their profession by adhering to the code of practice, which ensures, for example, that they do not misrepresent, that they do not identify or in any way contribute to the identification of victims of sexual assault, and that they protect their confidential sources.
The new clause introduces into British law a conscience clause to protect that area of employment. The clause would ensure that any attempt to dismiss a journalist for refusing to break the Press Complaints Commission code of practice would be unlawful and therefore actionable in law in respect of compensation. The issue has come up on a number of occasions. There is a case that is currently sub judice so we cannot refer to it, but the National Union of Journalists believes that the matter should be debated adequately and that we should return to it later.
Mr. Sutcliffe: Let me stress that the Government always deplore arbitrary and unfair dismissals. The unfair dismissal legislation, which is generally considered to be working well, has been carefully drawn up to ensure that employees are protected against unfair treatment. For a dismissal to be fair, an employer must not only have dismissed the employee for a fair reason, but must have acted reasonably in doing so. As hon. Members know, the legislation also specifies certain
particularly serious reasons for dismissal that are regarded as automatically unfair. These include, for instance, pregnancy or maternity, and trade union membership, non-membership or activities. My hon. Friend seeks to add to these reasons.Before any additions to the list of automatically unfair reasons are considered, however, we must be clear that they are both necessary and appropriate, and I do not believe that the addition proposed by my hon. Friend fits either criterion, although I am sympathetic to his underlying concern. I understand that the Press Complaints Commission code of conduct applies to editors and publishers, as well as to those who work for them. A publisher or editor's dismissal of a journalist for declining to breach a code of conduct that applies equally to both parties is most unlikely to be considered a fair one by an employment tribunal, and to that extent the amendment is unnecessary.
I also understand, however, that exceptions to some of the code's provisions can be made in exceptional circumstances, and to that extent the amendment is inappropriate. It assumes, in effect, that no breach is ever defensible, and thus that no journalist should ever be called to account by his employer for refusing to depart from its recommendations. That goes too far in constraining employers. I hope my hon. Friend will accept these points. In view of the ample protection provided by the existing legislation, I invite him to withdraw the new clause.
John McDonnell: I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Amendment made: No. 4, in page 7, line 29, leave out (4)' and insert
(4ZE) (which is inserted by section (Additional duties on employers informed of ballots))'. [Mr. Sutcliffe.]
Clause 11
Amendments made: No. 5, in page 11, line 10, after 7(6),', insert 27C,'.
No. 6, in page 11, line 10, after 29(5),', insert 119C,'. [Mr. Sutcliffe.]
Clause 24
John McDonnell: I beg to move amendment No. 15, in page 21, line 8, leave out from (1) to of' in line 9 and insert
An employer shall not make an offer or a threat to any worker with the purpose or the effect'.
Madam Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 16, in page 21, line 35, after worker', insert or a trade union'.
No. 22, in page 21, line 36, leave out his' and insert the worker's'.
No. 17, in page 21, line 36, leave out him' and insert the worker'.
No. 18, in page 21, line 39, leave out
which is recognised by his employer'.
No. 19, in page 22, line 14, after worker', insert or a trade union'.
No. 21, in page 22, line 15, leave out his' and insert the worker's'.
No. 20, in page 22, line 15, leave out him' and insert the worker'.
No. 23, in page 24, line 32 [Clause 26], leave out subsection (2) and insert
(2) For subsection (1) substitute
"(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer done on the ground that
(a) he was or sought to become a member of an independent trade union,
(b) he took part or sought to take part in the activities of an independent trade union at an appropriate time,
(c) he made use of or sought to make use of trade union services at an appropriate time,
(d) he failed to accept an offer made in contravention of section 145A or 145B, or
(e) he was not a member of any trade union or of a particular trade union or one of a number of particular trade unions.".'.
No. 13, in page 24, line 32, after (1),' insert
after "purpose" insert "or with the effect", after "part" in paragraph (b) insert "or seeking to take part",'.
No. 14, in page 24, line 34, after use', insert
or seeking to make use'.
No. 24, in page 25, line 4, leave out worker's "making use" ' and insert
worker having "made use of or sought to make use of".'.
No. 25, in page 25, line 9, leave out from "as' to end of line 10 and insert
subjecting the worker to detriment on that ground is to be treated as subjecting him to a detriment within subsection (1)(c)'.
No. 28, in page 25, leave out lines 11 to 14.
No. 29, in page 25, line 15, leave out (2C)' and insert (1)(d)'.
No. 7, in page 25, line 18, at end insert
(4A) After subsection (4), insert
"(4A) The payment of higher wages or higher rates of pay or overtime or the payment of signing on or other bonus or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits so long as
(a) there is no inhibition in the contract of employment of the worker receiving the same from being a member of any trade union, and
(b) the said payments of higher wages or rates of pay or overtime or bonuses or the provision of other benefits are in accordance with the terms of a contract of employment and reasonably relate to the services provided by the worker under that contract." .'.
No. 30, in page 25, line 20, at end insert
(5A) In subsection (1) of section 148 of the 1992 Act, before the word purpose' insert "grounds on which, or, as the case may be,".'.
John McDonnell: Time does not permit a full debate of the issues covered by the amendments, so I shall refer to only one element. It was pointed out on Second Reading that, as the Bill is framed, it is almost impossible to interpret the meaning of "purpose". An employee would have to demonstrate that an employer was subjecting the employee to a detriment for the purpose of preventing or deterring the worker from performing a protected activity or penalising the worker for doing so. Already we struggle in courts of law to demonstrate the purpose. The employer need only give some vaguely plausible reason in order to wriggle out of the provisions of the current legislation. I urge a re-examination of the clause to see whether we can tighten it and incorporate in the legislation the true spirit of the judgment in the Wilson and Palmer case.
9.15 pm
Mr. Sutcliffe: I appreciate my hon. Friend's brevity in dealing with a major issue in respect of the judgment in the Wilson and Palmer case.
The Government believe that we have clearly set out our position in clauses that were discussed earlier. We think this is an issue around purpose. I was happy to meet Mr. Wilson of the Wilson and Palmer case, who is satisfied with what the Government have done. I ask my hon. Friend to seek leave to withdraw the amendment, as while I accept that there is a variance between us, the Government have moved some way towards incorporating the Wilson and Palmer judgment.
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