6. Letter to the Chairman from Lord Wedderburn
on the Employment Bill
May I write to the Committee before its next meeting,
following the letter from Lord McCarthy, Baroness Turner and myself
of 11 April, and the further letter to you from the Secretary
of State of 7 May (below SS7M), now in the Library, of which Paul
Evans kindly sent me a copy today.
Since I am chosen personally for reference in the
Secretary of State's letter, perhaps I may be allowed to send
a brief comment on it to your Committee. I have not had the opportunity
fully to consult my colleagues but I have no reason to think they
will not share my response.
None of us has ever doubted the admirable objective
of the Government to settle more individual workplace disputes
by dialogue at the level of the workplace. We made that clear
at Second Reading and in Grand Committee. My own view was that
:"No one with any sense of adequate industrial relations
could oppose that objective, but the key issue is how this should
be done fairly and sensibly" (26 February, col.1384). I do
not understand why this position has been consistently misunderstood
and misrepresented in responses by the DTI.
What is called "the problem" and "the
situation" (SS7M) was identified by Ministers after the publication
of Routes to Resolution in 2001, as an excess of complaints
to the tribunals, caused largely by inadequate provision of procedures
by small employers as well as inadequate attempts at dialogue
by employees. The fact of the former was well established.
On the latter, the alleged unjustified excess of
claims by employees to the tribunals- now the central issuereference
was made repeatedly by Ministers for nine months after September
2001 to the SETA figures as their proof of need to act. This is
the survey which we asserted was both inadequate and misinterpreted.
They also cited in part the "Awareness" survey figures,
which afforded them no (and to which the SS7M letter does not
There is no evidence whatever to suggest that what
employers' organisations have come to call a new "compensation
culture" among workers has caused the increase in applications.
Nor has the number of applications to tribunals increased in reality
between 1989 and 2001 in any statistical manner which would prompt
new limitations upon employees' rights to complain to the tribunals
(see figures in written answer, 22 February 2002).
There is inadequate dialogue at the workplace,
especially in smaller enterprises, but no evidence that employees
are especially, or increasingly responsible for that result.
The Secretary of State refers to no other body of
evidence on the central issue, other than generalised references
to previous "work" and "widely held views".
The work for the Department by "Earnshaw et. al." (SS7M)
is neutral on this issue; the work for it by Burgess, Propper
and Wilson (Research Series no. 10)not referred to in SS7Mstrongly
suggests the opposite. Leading scholars in the field have concluded
that the basis of the allegations against employees rests on "anecdote".
This is the context in which we feel concern that
Clause 32 of the Bill (ex . old clause 33) places serious limitations
on the access to tribunals enjoyed by employees. It is placed
on employees alone, even if the clause "is designed to encourage
both sides to talk" (SS7M). This indicates that the chosen
new limitation on employees' rights is the proportional way (along
with other clauses, such as clause 31) of solving the problem.
Recently the Minister of State, Alan Johnson, stated on the BBC
that thereby complaints to tribunals will be reduced by 34,000
in the first year (in 'Nice Work', 4.0 p.m. 24 April 2002).
The obligation to use the statutory disputes procedures,
it is true, falls on "both the employer and employee"
(SS7M). But the penalty of reduced access to the tribunals for
failure to complete the first step in the grievance procedure
falls on the employee. No parallel penalty by way of access to
tribunals is placed on the employer for failure to complete any
step in the procedure.
The period of 28 days in which the employee is prohibited
from approaching the tribunal even where he/she has taken
the required step, is a very serious penalty, not least for those
suffering discrimination or harassment at work. Despite encouragement
to do so, the Government has not felt able to put on the face
of the Bill exceptions which might alleviate that disadvantage.
The Law Society had suggested concerning Clause 32 (ex. 33), that
clause 31 would have been sufficient for the Government's objective.
These are matters which my colleagues and I intend
to press upon the Government on Report but we are not confident
of any improvement.
We appreciate of course that on issues of proportionality
under the Convention, a Government must be afforded a wide margin
of appreciation. Nor do we harbour the mistaken belief that your
Committee can settle all the details of the differences of view.
We are still concerned, however, that the disadvantages
concerning access to justice for employees in clause 32 of the
Bill (taken in the context of the remaining clauses and, especially,
in the absence of clarity in the Bill itself about the exceptions
which the Government may plan in regulations) may be arguably
24 May 2002