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Baroness Miller of Hendon: I intervene very briefly and shall not delay the Minister. I had not intended to speak so much on the difference between "exceptionally serious" and "very serious", although "exceptionally serious" is better in this context. My concern was with the other words in the amendment; namely,
- "he believes on reasonable grounds that",
which were not mentioned by the noble Lord, Lord McCarthy. We are not happy with that wording. We believe that "reasonably" is a subjective concept, and that the whistle-blower should be required to have a better case than merely that, "he reasonably believes".
Lord Haskel: New Section 43H provides protection for workers who make disclosures about exceptionally serious failures. The intention is to provide as clear an indication as possible that the order of seriousness--if I may put it that way--is greater than that for other disclosures. The new section is meant to apply only in very rare cases. The purpose of inserting "exceptional"
is to indicate that the case is indeed a rare case. Nobody wants individuals disclosing confidential information to other bodies unless the circumstances are exceptional.However, we all recognise that there will be concerns that are rare, but so grave that they need to be disclosed and dealt with as soon as possible. We believe that the current wording conveys that very clearly. In our view, the proposed amendment is less unambiguous, and leaves room for doubt as to how this section should be interpreted in practice.
We believe that the best way to convey the order of seriousness under new Section 43H is by referring to failures that are objectively judged to be exceptionally serious. There may be disclosures which are very serious, but hardly exceptional, and such disclosures would be protected under other provisions in the Bill.
I realise that my noble friend Lord McCarthy has some concerns about whether an individual will be able to judge if a matter is exceptionally serious. He mentioned that issue at Second Reading. It is a very fair point. He raised it in the context of guidance on the Bill.
Public Concern at Work will be liaising with the CBI and the TUC in developing guidelines. These will provide a user-friendly explanation of the Bill, and the best practical way for workers to proceed if they are worried about wrongdoing or failures in the workplace. That will be of considerable practical value to employers and workers alike.
In addition, the Department of Trade and Industry will be issuing its own guide to workers' rights under the Bill. This, too, will set out a straightforward explanation of the provisions in the Bill. Like other DTI guidance on employment rights, it will be available free from a range of sources. We will certainly do our best to ensure that the Bill is well understood. I hope that my noble friends will find this a helpful and acceptable alternative to their amendment, and that the guidelines will indeed serve to show what is exceptional and what is rare.
Lord McCarthy: I am glad to hear the noble Lord's remarks. We are starting to move on this matter. He agrees with me, as Hansard will show, that there are some circumstances that are "very serious" but hardly "exceptional". In other words, he says that we are trying to make it just a little easier to use this provision in the Bill. Yes, of course, that is what we are attempting. Indeed, we say that it is almost impossible to know in advance what is exceptional; whereas, rather more broadly, matters can be found that are very serious when they cannot be said to be exceptional. So we are making some small progress.
One point worried me. As I understand it, the Minister is saying that the purpose of new Section 43H is to speed matters up. He seemed to be saying that if they were very serious or exceptionally serious, the matter would come to a tribunal more quickly. I do not know whether that is the Government's aim. The aim is not clear; that is part of the problem. I thought that the aim of this new section was to provide one of the circumstances in which an employee might be more likely not to inform an employer and still be protected;
namely, because a matter was "exceptionally serious". If it is not about the gravamen of a dereliction of law and is about moving upstream in the queue, then I shall have to think again. Perhaps the Minister will also think again. I may have misunderstood his remarks.Turning to the point made by the noble Baroness, Lady Miller, the Bill is peppered with the idea, "on reasonable grounds", as is almost every Bill. I do not know whether it is now the policy of the Opposition not to like the word "reasonable" and that they want us to remove it from all future measures. My noble friends wrote this amendment and inserted the word "reasonable". At first, I thought, "That old thing again". It is not exceptional to have such a provision in the Bill. The crux of the matter is whether we insert "very" and remove "exceptional". However, at this stage I am prepared to withdraw the amendment and beg leave to do so.
Amendment, by leave, withdrawn.
2 p.m.
Clause 2 [Right not to suffer detriment]:
Lord Wedderburn of Charlton moved Amendment No. 4:
The noble Lord said: In moving Amendment No. 4, I shall, with permission, speak also to Amendments Nos. 5, 6 and 8, which all deal with the problem of inadequate remedy, where we wish the right to be made stronger than it is.
In Clause 2, it is the right of a worker not to be subjected to any detriment by an employer. Here, having learned from the Wilson and Palmer cases, the legislator has put in,
When we look at the other way in which a victim may be victimised or prejudiced, Clause 5, the new Section 103A to the main Act, states that
I hope that the amendment will not be regarded as particularly contentious. It seems to me extraordinary that the worker retains his protection where he has made disclosures but the employer can come in before the act is complete and before there is the protection under the various clauses we have looked at, and, for example, make a threat or do something else to the prejudice of the employee. I believe I am right in saying that it is the view of the campaign which produced the Bill that, if an employer threatens to commit an act which is, in a broad sense, prejudicial to an employee, if it is only a threat it is taken out of the protection of the Employment Protection (Consolidation) Act.
I have always had some sympathy with that view, but, unhappily, last year the Court of Appeal, in the case of Mennell v. Newell and Wright, referred to in The Times of 18th July, rejected that argument. It is not the first
Briefly, the situation was that a worker, who was a lorry driver, had put to him, as had been put to his colleagues, a new set of contracts. The new contracts which the employer wished to press upon them provided for a deduction from wages in order to pay for their training, which had previously been paid for by the firm. The lorry driver complained and was dismissed. He said that he had been dismissed for asserting a statutory right, which is now provided in Section 104 of the Employment Rights Act 1996, which prevents the dismissal being proper.
The Employment Appeal Tribunal agreed with that reasoning--at somewhat more length, of course. But the Court of Appeal said no; that, although a complaint could be presented under the 1986 Act even where an employee had not been employed for two years--as so often, that was at the centre of the matter--an industrial tribunal had no jurisdiction to deal with a threatened deduction of wages under, originally, the Wages Act but could hear complaints only where an employer had actually made a deduction.
What I gain from that case, unhappy though it is, is that the courts are drawing a clear distinction between things that an employer does and things that an employer threatens to do. As the Bill stands, it does not cover things which an employer threatens to do to the disadvantage of an employee.
Lord Borrie: Does that not depend on the interpretation of the word "detriment" in the Bill?
Lord Wedderburn of Charlton: If we were trying to upset the Court of Appeal decision in Mennell v. Newell and Wright, I would join my noble friend in making that plea. There are several ways in which one can argue that it is wrong. What I am saying is that the law today, when the legislature is to make its decision, is, according to the Court of Appeal, that threats are out and acts are in. That is true of the Bill. I think my noble friend Lord Borrie and I are very close on this matter. I agree that I should want to argue if an employer came along and said: "I know all about you, Borrie. We know you are going to make complaints about what is going on in the firm. We know you haven't started to do so yet, and you certainly have not got yourself protected, but you had better go and join the awkward squad. You will not get so much overtime".
Page 6, line 25, at end insert (", or threatened with,").
"by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure".
"An employee who is dismissed shall be regarded ... as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure".
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