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Lord Borrie: But is it not a detriment to me if I have that hanging over me?
Lord Wedderburn of Charlton: With respect, I think it is, but the Court of Appeal said it was not. One has to find some distinguishing factor in Mennell v. Newell and Wright. My noble friend does not agree. I am trying to do my best with a decision which I think is a bad decision. I am asking the legislature to help us by making the position
absolutely clear. Why people should want to rely upon the opaque nature of the law when they can put it right in a place such as this House, I cannot think.If we do not like that position, there is Clause 5, which makes it absolutely clear that the protection against unfair dismissal applies only where an employee has made a protected disclosure. There is no question of that section being a problem. It must be right, if the employer or manager comes along and threatens the worker.
Let us think for a moment of the situation we are considering. The worker believes that management is doing something wrong. He is faced with the question, "Shall I disclose this? If I do, I may have to go home and say that I have been given my cards and the family does not have a wage the following week". He has to make that decision, helped, we hope, by his trade union representative. Surely he will look at the Bill and say, "It must be that I am protected from dismissal for making this proper disclosure, even though I have not gone about it fully according to the provisions of the other clauses".
This clause should provide for the employee who is dismissed to be regarded as having been unfairly dismissed, if the reason for the dismissal is that the employee made, attempted to make or perhaps intended to make--I have not put that in my amendment--a complaint. I should like the Government to think about that and prevent whistle blowers--if they be called such--from being dismissed by managers who take action before the employee takes all the necessary steps before he is protected. I beg to move.
Lord Borrie: Before my noble friend sits down, I thought he was speaking to three different amendments, one of which is Amendment No. 5, which seeks to insert the word "intend". I have not understood that amendment so far. It seems to me that if somebody intends something and it is merely in his mind, that cannot give rise to a situation which could result in either victimisation or a claim for unfair dismissal.
Lord Wedderburn of Charlton: My noble friend is right to question the situation. It is true that we added those words but we added them for this reason. Where a worker, in discussion no doubt with others because people talk to each other, said, "I think what they are doing up there is wrong and intend to make it an open matter and disclose"; somebody may say, "You have heard of this Act and had better watch out". However, the worker says that he intends to complain. The manager hears about it and says, "I hear that you are intending to use these procedures to allege that we do terrible things, which we do not".
The matter rests on the evidence. If he is subject to a detriment, it is on the ground that he intended to follow the procedures in the Bill. I hope that the Committee will see that that is a situation in which he should be protected.
The Earl of Balfour: I feel that the addition of these words will weaken the position of the worker. Perhaps I can put it this way. A worker has the right not to be
subject to or threatened with any detriment by any act or a deliberate failure to act by his employer. With all due respect to what has been said, I feel that the words of the Bill are better without the addition of the amendment.These amendments are grouped with Amendment No. 8. Perhaps I may ask the Committee to take a minute to look at Clause 5. So far in the passage of this Bill we have been dealing with amendments to the 1996 Act. We have been talking about "workers". Perhaps Members of the Committee will be good enough to look at the first line of the proposed new Section 103A. It begins:
- "An employee who is dismissed shall be regarded".
I feel that for the sake of consistency it should read "a worker". Equally, page 7, line 21, which deals with the addition of subsection (6A) to the 1996 Act, reads,
- "the principal reason) for which the employee was selected for dismissal".
Again, we have so far talked of the "worker" up to this point and perhaps we should substitute "worker" for "employee" in both cases. It is a technical point, but one worth making.
2.15 p.m.
Lord Haskel: Perhaps I may quickly respond to the last point made by the noble Earl, Lord Balfour. I think that the word "employee" is in the Bill because the protection applies to anybody working in the company, be he a worker working on the shop floor or an employee in the boardroom. I think that the intention is that it should apply to everybody who is involved in the company and not just workers.
I turn to Amendments Nos. 4 and 6 and the point made by my noble friend Lord Wedderburn. I am not a lawyer, and I am not sure that I want to get into an argument over particular cases. Indeed, we may have to write to the noble Lord about this particular case, but it seems to me that the notion of detriment includes being threatened. That is already well understood. I am not sure whether or not the case quoted by my noble friend Lord Wedderburn undermines that. Detriment is a broad concept and the Bill makes it clear that it includes deliberate failures to act as well as actions.
Our understanding of how this would work can be illustrated by an example. An employee who has made a disclosure to the employer could be threatened with relocation to a remote branch of a company, for instance, where promotion prospects are poorer. That kind of threat is a detriment and even though the worker can be assured that the employer could not lawfully carry out the threat, the fear of the threat may well amount to detrimental action. Any threat which puts a worker at a disadvantage constitutes in itself detrimental action. Certainly, such a threat would be contrary to the openness which we hope to see between employers and employees working together in dealing with wrongdoings or failures under the Bill.
The wording of the Bill follows the drafting of existing provisions of the Employment Rights Act 1996, which provides protection against detrimental treatment on specified grounds such as carrying out duties of a
health and safety official. These provisions have not caused difficulties of interpretation, but to use different wording in this case, as suggested by the amendments, we feel would cast doubt on whether threats were covered in those other cases.I turn to the clauses to which Amendments Nos. 5 and 8 are proposed, providing protection for employees who are victimised or unfairly dismissed for making a protected disclosure. I can understand my noble friends' wish to ensure that an employee who failed to get his message across should not lose protection. However, it seems to me most unlikely that such a situation would arise. Normally, a disclosure made to the employer or via internal procedures is likely to get through, rather than be merely attempted.
But even if the worker passes information on internally and it does not reach the right person who is responsible for dealing with such matters, it seems to me that a tribunal is likely to find that the employee has disclosed to the employer and is protected, provided that he acted in good faith.
These amendments could allow workers to argue that although they had failed to follow the correct procedures, they had intended to do so and so had attempted to make a protected disclosure. This would of course undermine the clear procedures set out in the Bill. The Bill already contains provision in Section 43J to prevent employers placing "gagging" restraints on employees. The amendments could be misinterpreted to enable workers to use the threat of disclosure as a bargaining counter with their employers, rather than working in partnership with them to resolve the concerns. This would be contrary to the spirit of the Bill.
I hope that noble Lords will accept this explanation as to why the Government could not accept these amendments.
Lord Borrie: I do not need to add very much because my noble friend the Minister has set out the reasoning that I would have employed in terms of these linked amendments. In relation to what the noble Earl, Lord Balfour, said, the word "worker" appears throughout. Of course only a worker can be dismissed under the unfair dismissal procedures. But I think that the word "employee" appears because it is inserting something into an existing Act where the word "employee" is used.
I asked my noble friend Lord Wedderburn about the amendment dealing with intention. I thought that intention could be just something in one's mind and therefore nothing could possibly arise out of that in terms of victimisation or a claim. He said that people who have an intention to disclose may well talk about it to others. I can understand that. But as soon as the employee talks to someone who is a senior person--a manager or someone in line management--he is part of the organisation of the employer and a disclosure to him, talking to him, is a disclosure within new Section 43C, and therefore there comes about the protection against victimisation and so on in the legislation. So I cannot see the value of the amendment dealing with intention. As for "attempt", the attempt involves, as I understand
it, some sort of move towards disclosure which has not been completed. There may be some marginal value in that, but it requires the strong imagination of my noble friend to think that that adds something to the Bill.
It is clear from the earlier words of my noble friend Lady Turner that we are to have a Report stage. I shall read in Hansard what everyone has said. I ask my noble friend to withdraw the amendment.
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