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Orders of the Day
Employment Bill [Lords]
As amended in the Public Bill Committee, considered.
‘(1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (in this section “the 1992 Act”) is amended as follows.
(2) For section 238A (participation in official industrial action) substitute—
“238A Effect of industrial action on employment contract
(1) Any termination of a contract of employment by an employer shall be unlawful and of no effect if the reason or one of the reasons was or is that the worker has participated, is participating or proposes to participate in lawful industrial action or a lawful strike; and in any proceedings, the termination shall be presumed to be by reason of that participation or proposed participation unless the employer proves the contrary.
(2) Where in any proceedings a court finds a termination unlawful as a result of subsection (1), it may (in addition to making any other order)—
(a) make a declaration as to the continuation of the contract of employment;
(b) award damages in respect of any loss suffered by the worker by reason of the termination.
(3) Where a worker’s act or failure to act is a consequence of the worker’s participation, or proposed participation, in lawful industrial action or a lawful strike, that act or failure to act is not actionable on any of the following grounds—
(a) that it amounts to a breach of that worker’s contract of employment, or to non-performance or partial performance of one or more terms of that worker’s contract of employment;
(b) that it amounts to the breach, non-performance or partial performance of any duty or obligation owed by the worker to any person; or
(c) that it is directly or indirectly causative of the breach, non-performance or partial performance of any duty or obligation owed by another person.
(4) For the purposes of this section, section 238AA and section 238AB, an employee participates in lawful industrial action or a lawful strike if he commits an act, or a series of acts, which he is induced to commit by an act which by virtue of section 219 is not actionable in tort.
(a) “court” includes an employment tribunal, and
(b) “termination” includes a purported termination.
238AA Unfair dismissal and the right not to suffer detriment
(1) An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 (c. 18) (unfair dismissal) as unfairly dismissed if the reason or one of the reasons for the dismissal is that the employee has participated, is participating or proposes to participate in lawful industrial action or a lawful strike.
(2) A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer, where the reason (or one of the reasons) for the act or failure is that the worker has participated, is participating or proposes to participate in lawful industrial action or a lawful strike.
(3) Subsection (2) does not apply where the worker is an employee and the detriment in question amounts to dismissal.
(4) Nothing in this section prevents an employer, in relation to a worker who participates in lawful industrial action or a lawful strike, from—
(a) withholding remuneration or benefits from the worker, so long as—
(i) the amount withheld does not exceed that to which the worker would have been entitled had he not participated in industrial action or a strike,
(ii) the withholding of the remuneration or benefits in question is permitted by the worker’s contract of employment, and
(iii) it is reasonable in all the circumstances to withhold the remuneration or benefits in question;
(b) enforcing, to such extent as is reasonable in the circumstances, any restriction imposed by the worker’s contract of employment concerning trade secrets or other confidential information.
238AB Complaints to employment tribunals etc
(1) A worker or former worker may present a complaint to an employment tribunal that he has been subjected to a detriment by his employer in contravention of section 238AA(2).
(2) An employment tribunal shall not consider a complaint under subsection (1) unless it is presented—
(a) before the end of the period of three months, beginning with the date of the act or failure to act (or the last in a series of similar acts or failures) to which the complaint relates, or
(b) within such further period as the employment tribunal considers just and equitable in all the circumstances.
(3) In proceedings on a complaint under section 238AA(2), it is for the employer to show the reason for the act or failure to which the complaint relates; and the act or omission shall be presumed to be by reason that the worker had participated, was participating or proposed to participate in lawful industrial action or a lawful strike unless the employer proves the contrary.
(4) Where an employment tribunal finds that a complaint presented to it under subsection (1) is well founded, it shall take such of the following steps as it considers just and equitable—
(a) make a declaration as to the rights of the complainant in relation to the matters to which the complaint relates;
(b) order the employer to pay such compensation to the complainant as it considers just and equitable having regard to all the circumstances, including the detriment to which the worker was subjected and any loss suffered by the worker in consequence of the act or omission to which the complaint relates; and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not awarded under any other head.
(5) In proceedings on a complaint of unfair dismissal under section 238AA(1), the dismissal shall be presumed to be by reason that the worker had participated, was participating or proposed to participate in lawful industrial action or a lawful strike, unless the employer proves the contrary.”
(3) In section 239 (supplementary provisions relating to unfair dismissal) subsection (4) ceases to have effect.
(4) The Employment Rights Act 1996 (in this Act, “the 1996 Act”) is amended as follows.
(5) After section 113 (reinstatement and re-engagement orders) insert the following section—
Where an employment tribunal finds that an employee has been unfairly dismissed in circumstances to which section 238AA(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 applies, and the complainant wishes to be reinstated, the tribunal shall make—
(a) an order for reinstatement, or
(b) an order for re-engagement on such terms as the parties may agree or as the tribunal (having regard to any advice received from ACAS) shall order”.
(6) In section 117 (enforcement of order and compensation) after subsection (2) insert the following subsection—
“(2A) In relation to an order made pursuant to section 113A, the amount of compensation shall be such as the tribunal thinks just and equitable in all the circumstances having regard, in particular, to the nature of the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and to any loss suffered by the employee in consequence of the non-compliance; and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not it is awarded under any other head.”
(7) In section 117 after subsection (8) insert the following subsection—
“(9) Any order for reinstatement or re-engagement made pursuant to section 113A may be enforced as if it were an order made by the High Court.”
(8) In section 124 (limit of compensatory award etc)—
(a) after “section 117(1) and (2)” insert “or (2A)”;
(b) for “section 115(2)(d)” substitute “section 115(2)(d), section 117(2A)”.
(9) In section 128(1)(b) (interim relief pending determination of complaint) after “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section 238AA(1) of that Act”.
(10) In section 129(1) (procedure on hearing of application and making of order) after “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section 238AA(1) of that Act”.’.— [John McDonnell.]
Brought up, and read the First time.
5.12 pm
John McDonnell (Hayes and Harlington) (Lab): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: new clause 2— Employer’s duties in relation to industrial action ballots—
“The following section is inserted after section 226C of the Trade Union and Labour Relations (Consolidation) Act 1992—
“226D Employer’s duties in relation to industrial action ballots
(1) It is the duty of an employer reasonably to co-operate generally, in connection with a ballot conducted or proposed for the purposes of section 226, with the trade union (or unions) and the person appointed to conduct the ballot.
(2) Without prejudice to the generality of subsection (1), it is the duty of an employer to supply to a trade union in good time information reasonably requested by the trade union for the purposes of establishing the names, addresses, categories and workplaces of those members whom it wishes to ballot for the purposes of section 226.”.’.
New clause 3— Agency labour replacing those taking lawful industrial action—
“In the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (S.I. 2003/3319), after regulation 7 (restriction on providing work-seekers in industrial disputes) insert the following regulation—
“Restriction on hirers in industrial disputes
7A (1) A person shall not hire a work-seeker to perform—
(a) the duties normally performed by a worker who is taking part, or intends to or is about to take part, in a lawful strike or other lawful industrial action, and in respect of whom notice of a strike or other industrial action has been given by a trade union (“the first worker”), or
(b) the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform duties normally performed by the
first worker (whether or not the employer is contractually entitled to require the other worker to perform those duties).
(2) Where a person seeks to become the hirer of a work-seeker wholly or partly by reason of (or of the prospect of) a strike or other industrial action, that person shall, before being supplied with a work-seeker by an employment business, inform the employment business of that fact.
(3) Paragraphs (1) and (2) shall not apply if, in relation to the first worker, the strike action or other industrial action in question is an unofficial strike or other unofficial industrial action for the purposes of section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992.
(4) In this regulation and in regulation 7, “employment business” includes an agency.”.’.
John McDonnell: This is now a time-limited debate, and I am anxious to ensure that we deal with all the important issues scheduled for debate today, so I shall try to be as brief as possible. I shall speak about new clauses 1, 2 and 3, but I shall seek a ballot—pardon the pun; I meant a Division—on new clause 2, on balloting procedure, at the appropriate time. I shall be advised by you on that, Mr. Deputy Speaker. I seek to press it to a Division following consultation with hon. Members and a range of trade unions, who feel that new clause 2 is the most important new clause in the batch before us. It relates to the largest impediment to their activities and to good industrial relations.
This is my third attempt to debate the new clause. My first two attempts were on clauses in the Trade Union Rights and Freedoms Bill, but both times the debate was talked out. I am grateful for the advice and assistance of the Clerk to the Committee, which helped us to ensure that the new clauses were in order, and could be selected today. I also pay tribute to the Institute of Employment Rights for its tenacious pursuit of trade union rights, and its advice and assistance. In particular, I pay tribute to Carolyn Jones, John Hendy QC, and Professor Keith Ewing. I also pay tribute to the late Brian Bercusson. Together, as a team, they have provided support throughout the last two decades in trying to seek trade union reform and establish basic trade union rights once again in this country. May I also pay tribute to the many trade unionists who have campaigned on these issues over the years and lobbied Parliaments? They include many rank and file trade unionists, general secretaries and others: we all owe them a debt of gratitude for campaigning for basic trade union rights in this country.
5.15 pm
The three new clauses are extremely moderate and could hardly be described as burdensome reforms in vital areas of trade union rights. They are supported by every trade union affiliated to the TUC, they are unanimously supported by the TUC general council and they have been unanimously supported by the TUC for at least three years. My concern is that they are more important now than before. As the country moves into a recession, there is always a danger that unscrupulous employers will use the excuse or the smokescreen of recession to seek to undermine wages and conditions under which workers are employed and even to shed labour without due regard to appropriate procedures and processes. Workers will look to their trade unions for protection, and, inevitably, there will be disputes, but people will look also to the Government to provide security and protection from exploitation, loss of
employment and unfair treatment by ensuring that appropriate rights and protections are on the statute book. The three new clauses go some limited way in providing reassurance that there is legal redress against unfair treatment and victimisation, and that trade unions can operate effectively in representing their members and in implementing their members’ wishes.
The aim of new clause 1 is to provide protection from dismissal or detriment for workers taking industrial action. I think that Members in all parts of the House agree that the right to take industrial action is a fundamental right. It is guaranteed by international treaties and conventions: the International Labour Organisation conventions of 1987 and 1998; the Council of Europe’s European social charter and article 11 of the European convention on human rights and fundamental freedoms; and article 8.1(d) of the United Nations international covenant on economic, social and cultural rights. The United Kingdom’s law on trade unions—in particular, the denial of the right to strike and to take industrial action—has been held to be in breach of those international treaties by the decisions of their supervisory bodies over many years. The new clauses would not go as far as to try to incorporate or enact the international statutes in UK legislation: I wish they could. My hon. Friend the Member for Wolverhampton, South-West (Rob Marris), who was described earlier as a Fabian, will appreciate the approach of gradually improving legislation, and the moderate approach that I generally take to such matters. The aim is to protect workers taking industrial action from being sued, sacked or otherwise penalised by an employer.
New clause 1 would provide that dismissals in anticipation of, during or after lawful industrial action would be void and ineffective, unless the employer could show that the reason for the dismissal was not connected to the industrial action.
Dr. Nick Palmer (Broxtowe) (Lab): I have a lot of sympathy for my hon. Friend’s new clauses, and I am inclined to vote for the one on which he will call a Division, but, on the point that he just made, I am concerned that we would be asking the employer to prove a negative—that the interest in striking was not the reason for the proposed dismissal. I wonder whether it would not set an impossibly high hurdle, whereby someone who was threatened with dismissal could threaten to strike to invoke the new clause.
John McDonnell: In normal dismissal cases, the employer would need to bring forward evidence that demonstrated the grounds for the dismissal. We seek that balance—a demonstration of the legitimacy of dismissal—in this case, so that there are legitimate grounds, other than the taking of industrial action, that the employer can demonstrate. I understand my hon. Friend’s concerns, but, in practical terms, for those of us who have been trade unionists and defended people at industrial tribunals, the emphasis is on the employer to bring evidence of why the dismissal took place. In such instances, the issue is about proving not a negative but the action, other than the relationship to industrial action, that demonstrates the grounds for dismissal.
Dr. Palmer: The new clause does, however, say that
“if...one of the reasons was...industrial action”,
so the employer could demonstrate a perfectly valid reason for dismissal, but, if he was unable to prove that
he was not also influenced by the threat of industrial action, he would not be able to proceed.
John McDonnell: The employer would have to demonstrate that its decision to dismiss on other grounds had not been contaminated by the fact that industrial action was taking place.
Mr. Andrew Dismore (Hendon) (Lab): As my hon. Friend knows, I am one of the signatories to new clause 1. What it proposes is modest. Given how it is phrased, it would not in the 1980s have prevented the dismissal of miners who had been criminally convicted for picketing and so forth. Presumably, such workers would still be dismissed even if the new clause were agreed to. That is why I think it is so modest.
John McDonnell: All this is destroying my revolutionary credentials. Let me be clear: we are trying to reach a consensus with the Government. For five years, we have consulted every trade union, through the TUC, on our proposals. There was even a resolution at the Labour party conference proposing similar trade union reforms. [Interruption.] The resolution did get through; there was a majority at the Labour party conference, although I accept that it followed the Gate Gourmet dispute and that it was an emotional period.
My proposal provides for minimal protection, not even to the level of international law, and it is practical. It is a pragmatic approach to ensuring that people cannot be dismissed during industrial disputes.
Mr. Brian Binley (Northampton, South) (Con): Will the hon. Gentleman tell us what assessment he has made of the additional tribunal cases that might result from his new clause? Has he assessed how many such cases might be vexatious and how much more cost they would impose on British industry and commerce generally?
John McDonnell: I shall come on to the percentages of current cases; at present, they are minuscule, which demonstrates that there is inadequate protection for workers in respect of reinstatement. I shall say more about that point later, and the hon. Gentleman can then come back at me if he wishes.
If a dismissal takes place, the new clause would make it automatically unfair. For employers, that will act as a powerful disincentive to taking on replacement staff and making strikers redundant. Interim relief would be available in all unfair dismissal claims relating to lawful industrial action and employees who had been unfairly dismissed would be entitled to automatic reinstatement if they requested it. The same principle would apply to the imposition of a detriment on the worker by the employer. The employer would have to show that the reason was not the worker’s participation or proposed participation in lawful industrial action. However, let me be clear that that would not invalidate the normal process of withholding remuneration and benefits, limited to those that the employee would have received had he or she not taken industrial action.
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