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Lord Newby: The noble Baroness referred very elegantly to the judicial tradition which she used in support of her argument. It is fair to say that the Industrial Relations Act 1971--the first time that the employee had a cause of action against an employer for unfair dismissal--provided that the burden of proof rests with the employer, not with the employee, to show that the reason for the dismissal was fair.
In that case there was a much more draconian range of powers than appears in this Bill. It seems to me that the Bill is merely continuing the tradition established by the Conservative Government in 1971. They saw, rightly, that in the kind of dispute that we are talking about, unless the burden of proof were reversed, there simply would not be a level playing field and the balance of forces would be cast unfairly against the employee.
It seems to me that exactly the same applies here. I too am an employer. I keep records of what I pay the people who work for me. By and large, I do not pay them in cash. If I were to do so, I suspect that I should require from them a receipt to show how much cash I had given them. Even if I were handing over cash as opposed to paying by cheque or direct debit, the thought that I would somehow do that without any records or in a way that would leave me open to dispute is ludicrous. I cannot believe that as a matter of general principle and practice that employers are doing that.
I apologise for detaining the Committee on this matter but I have not spoken before this evening. I feel very strongly that this is an issue where a principle has been established in an Act introduced by the administration
of the noble Baroness's party. Therefore, it is appropriate for the tradition which that Act established to be continued in this legislation.10.30 p.m.
Lord Falconer of Thoroton: Despite the enthusiasm with which the noble Baroness produced her extremely eloquent and effective speech, if one thought a little about why it was that the burden of proof had been reversed one would realise that there were quite good reasons behind it. The noble Lord, Lord Newby, referred to the Industrial Relations Act 197l which was introduced by a Conservative Government. It placed the burden upon the employer to establish that a dismissal was fair. The reason it placed that burden on the employer was plainly that it would be the employer who would have the detail relating to that person's employment and the circumstances in which he was dismissed.
The approach taken by the 1971 Act is one used repeatedly in civil law. The latter has always been able to construct arrangements whereby, in circumstances where the answer to a particular problem is more likely to be in the hands of one party than another, it will place the burden of proof on that other person rather than the plaintiff. With respect to the noble Baroness, Lady Miller, the burden of proof in criminal cases should not be confused with that in civil cases.
What does this legislation do about the reversal of the burden of proof? First, it places the burden on the employer to establish whether an individual qualifies for the national minimum wage; and, secondly, it places the burden of proof on the employer to establish that the employee has been paid the national minimum wage. That is whether the claim is brought for an unauthorised deduction before an employment tribunal or whether the claim has been brought to enforce a contract claim where it is said that the worker is not paid the minimum wage. With great respect to the noble Baroness, that would seem to be quite sensible.
As far as concerns people who might be making claims for the national minimum wage, very many of them will be in a moderately vulnerable position. Many of them may be isolated from other workers; for example, they may be out-workers or home workers, completely without assistance, and indeed sometimes not very well able to express themselves in English. As a matter of principle, what is wrong with them being allowed to go to an industrial tribunal and say, "I don't believe that I have been paid the minimum wage; I appear to be getting a very small amount of money"? If the noble Baroness had her way, the employer would simply say: "Prove that you are an employee first of all, and prove what you have been paid". The employee would then say, "I can't remember the terms upon which I was actually employed and I can't tell you what I have been paid over the years because I'm paid on a piece rate".
Surely in such a case the sensible course is that the employer comes before the tribunal and provides the material showing the basis of employment or the relationship between the worker and the employer,
together with the figures as to what that person has been paid. A balance must be struck somewhere. The burden has to be placed on one or the other. Which is the more sensible place to put the burden? Is it on the employee in trying to enforce the national minimum wage or is it on the employer? The obvious answer seems to me to be on the employer. If he has a complete answer to the case, he will be able to say, for example, "This person is not an employee", or "I paid the national minimum wage". He will be able to do so much more easily than would be the case with the employee.I find the suggestion of the noble Baroness--namely, that this is some sort of constitutional affront--impractical, misguided and alarmist. I suggest that she should think again about the basis of the amendments that she has tabled. She should consider, as a matter of practicality, where the balance should properly lie. In my respectful submission it is clear that the reversal of the burden of proof in relation to these two matters is sensible and practical. I respectfully ask the noble Baroness to withdraw her amendment.
Baroness Miller of Hendon: Despite the beguiling way in which the Minister responded to that point, he did not respond to the following point. Nowhere does Clause 28 state--I searched hard--that the employee either has reasonable grounds or is acting in good faith. We have often used those terms during the course of this Bill. The Minister appears to be saying it is quite obvious that the burden of proof should be on the employer. I believe it is much more obvious that the employee should at least have reasonable suspicion to believe he has not been paid the minimum wage. After all, he will be given his money with a pay slip. However, due to the lateness of the hour, I shall withdraw the amendment. However, I give the Minister notice that I shall return to the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 104 and 105 not moved.]
On Question, Whether Clause 28 shall stand part of the Bill?
Baroness Miller of Hendon: For the same reason as I have just mentioned I shall not oppose the Question that Clause 28 shall stand part of the Bill at this time of night.
Baroness Seccombe moved Amendment No. 106:
The noble Baroness said: In moving Amendment No. 106 I wish to speak also to Amendments Nos. 107 and 108. I wish to follow the line of my noble friend. As drawn, this part of the Bill worries me greatly. The Bill will give to what is described as an "officer"--and an officer is probably an official appointed by the Secretary of State, or seconded from a local authority--powers to demand information and compliance with his orders. In reality, Clause 31 as drawn deprives the
The Bill creates a new criminal offence of "contempt of officer"; an offence which deprives the employer of defences that are available to the most violent criminal prisoner. Clause 31(5)(a ) makes it an offence to delay or obstruct an officer. We do not object to the word "obstruct". We have tabled Amendment No. 106 because we object strongly to the word "delays". "Delays" is not defined. What happens if an officer demands information or whatever and the employer says, "You will have to make an appointment or wait while I consult my solicitor"? Is that a delay? If so, that is to be an offence. Our Amendment No. 107 seeks to require the officer to exercise his powers reasonably. The word "reasonable" keeps appearing throughout the Bill. We have already had a number of debates on the word "reasonable". The Committee will be pleased to hear that I do not intend to go over that ground again.
However, I remind the Committee that as regards the criminal offence of obstructing a police officer in the course of his duty, the police officer must prove not only that he was exercising a legal duty, but that he was doing so reasonably. A police officer cannot complain if, contrary to any requirement of his, a suspect insists on exercising a legal right of his own.
Finally, Amendment No. 108 seeks to insert the word "wilfully" to qualify "neglect". Again, the Government are seeking to create an absolute criminal offence with no defence. "Neglect", according to the Oxford English Dictionary, means "to fail to do". An employer may neglect--that is fail--to answer questions, furnish information or produce any documents simply because he has forgotten or does not know the answer or because he does not have the documents. This iniquitous provision even deprives an employer of the right to silence that is still among our constitutional safeguards in criminal cases, notwithstanding recent changes in the law.
What the provisions in this section that we wish to modify seek to do is to create powers that are not available to the police and to subject a person guilty of the offence of being an employer to penalties, sanctions and procedures not available to the police when investigating a suspected serial killer. It is constitutionally essential that your Lordships introduce a sense of rational perspective and proportionality into this part of the Bill. I beg to move.
Page 22, line 18, leave out ("delays or").
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