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Lord McCarthy: My Lords, I am not trying to be difficult, but is it the Government's intention to complete the passage of the Bill in this Parliament?
Lord Lucas: My Lords, I could not possibly comment on that now but I shall write to the noble Lord. I have no reason to think otherwise as it would be a waste of Parliament's time if we did not.
Bullying can, in extreme cases, lead to stress and illness. That too is covered by law. The Health and Safety Executive has issued guidance which deals with stress at work, including bullying. The guidance derives from the Health and Safety at Work etc. Act 1974. Under the Act, employers have a duty to ensure the health and safety of their employees. Ill health resulting from work-related stress, including the way in which employees are managed, falls to be treated in the same way as ill health due to other causes in the workplace. So the 1974 Act provides a basis for tackling bullying at work. That was mentioned by the noble Baroness, Lady Gould of Potternewton, and the noble Lord, Lord Haskel. It is a part of the legislation which is reasonably actively used at the moment.
The Employment Rights Act 1996 protects employees against victimisation by their employer for taking certain actions on health and safety grounds or for seeking to assert statutory employment rights. Under general employment law, employees have a contract of employment which is legally enforceable. It involves a mutual duty of trust and confidence. If either side breaks this by totally unreasonable behaviour, the other will be entitled under common law to terminate the employment relationship.
An example of such behaviour is where the employer seeks to impose significant contractual changes without the employee's consent. The employee will have good prospects of succeeding with a claim of constructive unfair dismissal. The noble Lord, Lord McCarthy, showed how useful it was for some aspects of the problem.
Protection is also provided, as the noble Lord, Lord, McCarthy, said, by the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. They make it generally unlawful for an employer to subject workers to any detriment on grounds of sex, marriage, race or disability.
Cumulatively, those measures provide a broad framework of protections against various forms of unfair behaviour. Moreover, case law has helped to define the law; for example, by making it clear what may constitute sexual or racial harassment. So bullying, although not explicitly covered in law, can in practice often be dealt with under it. Indeed, a case was reported yesterday of an employee who brought a successful prosecution for assault against his employer. It shows that there are remedies under the existing law.
Generally, firms will already have some procedures in place, perhaps along the lines of the ACAS code on disciplinary practice. The Government see such guidance and the Discipline at Work Handbook, together with initiatives by the CBI, the Institute of Personnel and Development and some trade unions as offering more promising means of dealing with unacceptable behaviour at work. The noble Lord, Lord Monkswell, mentioned his own trade union which is prominent in the area. He gave examples of where it has been successful and in our view it is the principal way in which the general problem of low level bullying in its less extreme manifestations should be tackled because it is likely to achieve the greatest success with the greatest ease. I add that the Employment Rights Act 1996 requires employers to notify staff about grievance procedures, so the law already accepts that employees must have a channel for raising complaints.
The Bill of the noble Lord, Lord Monkswell, is a brave attempt to incorporate a right to dignity into legislation. However, the basic concept of dignity at work is difficult to incorporate into law. It is both an imprecise and highly subjective concept and therefore liable to be construed in different ways. We feel that that cannot be good for employers, employees or those who have to apply the law. No one wants to see the law made more complex or confusing, yet that would be the effect of the Bill.
I hope that what I have said on what we are doing at present and the other opportunities which exist for legislation will provide some comfort for the noble Lord when I say that at this stage we cannot offer him any hope of support for the Bill.
9.50 p.m.
Lord Monkswell: My Lords, I am encouraged by the Minister's response. He started by saying yes, there is a recognition that there is a very real problem, and he finished by saying that he was unconvinced at this stage that the Government should support the Bill. That suggests that they recognise the problem but are not sure that this is necessarily the best vehicle to resolve it.
First, however, I thank all noble Lords who have taken part in the debate, which has been very useful and interesting. A number of noble Lords were able to highlight issues on which I could not expand in my opening remarks. I am particularly grateful to my noble friend Lady Gould of Potternewton who, using her experience of the sex and race legislation, pointed out that those provisions had weaknesses when it came to bullying at work. She also brought in the international dimension. We need to remember that bullying at work is not just a British problem. It is experienced in other countries and it is interesting that other countries have taken action within their own culture to try to solve it.
The noble Lord, Lord Rea, highlighted the medical aspects and the grievous problems that individuals can suffer as a result of bullying at work. My noble friend Lord Haskel very effectively pointed out that bullying at work is bad for business. He identified a matter of which I was not aware; namely, the good work done by Cranfield in its management training for middle management, identifying the need for dignity at work as part of management training.
We are all indebted to the experience and knowledge of the noble Lord, Lord McCarthy, in this legal minefield of an area, if I may so put it. He pointed out the inadequacies of the existing law. I was very pleased to have his critical examination of the Bill and his suggestions for amendments and changes, which I am sure we will be able to accommodate in Committee. I am sure that the Committee stage will be very useful.
I hope that the Minister will be at his place when we have the Committee stage, that he will listen to and be involved in the debates, and that the deliberations as the Bill becomes better as the result of constructive criticism will persuade the Government that it is a good vehicle by which to tackle the problem. It is worth pointing out that the Government have taken action on bullying in schools. It has been raised as a major public issue within the last couple of years. The Government have insisted upon, and have provided money for, a whole school policy to deal with bullying. Whether or not there are incidents of bullying at a school, there is a requirement that every school should have a policy aimed at preventing bullying and tackling it in a sensible and progressive way when it happens. So the schools are tackling the problem.
The Government have pointed out that bullying or stalking on the public highway, if I may so put it, are to be tackled by a Bill that the Government themselves will
bring in. It will require police action to be taken if someone is bullied or stalked on the public highway. Only last week we had a Starred Question about bullying in the Armed Forces. I was very glad to hear from the Government Front Benches total condemnation of bullying in the Armed Forces and the fact that the Ministry of Defence and the Armed Forces have policies and practices to prevent bullying, to counteract it if it is found, and to take action to deal with it if it occurs. Why should not that apply in industry, in commerce and in employment? We have taken action on schools, on the public highway and in relation to the Armed Forces. But the one area where no clear action is being taken is in employment.My noble friend Lord McCarthy pointed out the difficulties that arise in the areas of constructive dismissal and the Public Order Act. The Minister mentioned a number of other areas. Perhaps I can quickly run through them. He mentioned the anti-stalking Bill which will provide for police or court action through injunctions. The idea of an employee going to his local police station and reporting bullying at work beggars belief in terms of the way in which employment works. And going to a court for an injunction is an expensive way of dealing with the problem and does not do anything to prevent it. It is a case of shutting the stable door after the horse has bolted.
The analogy was made with the Health and Safety at Work etc. Act. I had experience of that Act going back to 1974 when it was introduced. In the early days it was a powerful instrument of change because managers and employers felt at that point that they ran the risk of being sent to gaol if they transgressed the Act. Unfortunately, the reality is that there have been virtually no prosecutions under the Health and Safety at Work etc. Act which have resulted in managers going to prison. As a result, the Act is not applied very effectively. Good employers operate it well. The problem we face does not concern the good employer. The good employer will have the policies and practices in place. The problem is the mediocre, the poor or downright bad employer who needs to be encouraged to implement the right policies and, if he does not, needs to recognise that he will receive significant penal sanctions.
My noble friend Lord McCarthy raised criticisms in relation to references to industrial tribunals, the likely risk of employers taking a long time over cases and extending the time of the tribunals, and the problem of casework and delay. But this situation is slightly different. There are limits on the amount of compensation that can be awarded in previous normal employment sex and racial discrimination cases. In this case the draftsmen have not put any limit on the amount of compensation that can be paid and there is a requirement on employers to take action to prevent continuation of the problems.
I was intrigued by the Minister's reference to the ability of an employee to take out an action for assault. Again, I suspect that that would tie up the High Court or the relevant court and be more expensive than an industrial tribunal hearing. It is worth pointing out that
I saw the specific case mentioned and believe that it revolved around a solicitor's office where presumably everyone would be knowledgeable about legal affairs and the way to take out actions for assault.The Minister's final point in terms of the options for employees to resolve the problem was his calling into aid the actions of unions and their policies and negotiating policies with employers. I am glad to hear that that is thought to be a good thing by the Minister. However, it still leaves us with the problem that not all firms are unionised and not all employers are prepared to negotiate these policies even where there is a union present.
I hope that the debate and the reading of it by the Government will encourage them to think that we have the right vehicle to tackle this devastating problem of bullying at work. I welcome suggestions from my noble friend Lord McCarthy in terms of the amendments that are probably necessary to make the Bill more effective. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Planning (Consequential Provisions) (Scotland) Bill [H.L.]
A message was brought from the Commons that they concur with the resolution of this House of 3rd December
- House adjourned at ten o'clock.
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