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Lord Laming: Taking first the issue of notifying the social services department where the individual now resides, the Secretary of State does not require specific statutory authority to pass on this information, provided he is satisfied that it is necessary in all the circumstances and having weighed the relevant issues of confidentiality and proportionality.
It is also helpful to mention the Department of Health working document, Working Together. That provides guidance on the way in which these matters should be dealt with, not just for social services departments, but for all the relevant agencies involved in the protection of children and which have responsibilities under the provisions of the Children Act 1989.
I am grateful to the noble Lord, Lord Meston, for mentioning the recent judgment because the Working Together document is currently being revised and it will address issues raised in a number of recent cases. In particular, it will be giving guidance to area child protection committees on the way in which all such matters should be handled at a local level. This guidance will be issued under Section 7 of the Local Authority Social Services Act 1970.
As the noble Lord, Lord Hunt, also indicated, where the Secretary of State is aware of a person being employed in situations that give rise to concern, the Government have given an indication of how they intend to handle that. For that reason, I urge the noble Earl to withdraw his amendment.
Earl Howe: I am grateful to the noble Lord and the Minister for those explanatory comments. I am entirely content and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 8:
After Clause 3, insert the following new clause--
(" . Where a child care organisation, or any other organisation, is made aware that an individual who is employed in a child care position is included (otherwise than provisionally) on the list and by reason of that discovery either dismisses him or transfers him to a position within the organisation which is not a child care position, that organisation shall not thereby be rendered liable to civil proceedings on the grounds of unfair or constructive dismissal (as the case may be).")
The noble Earl said: This amendment, I hope, is self-explanatory. An organisation may be made aware that someone working for it has had his name included on the Secretary of State's list as a result of an incident that occurred sometime earlier with a previous employer. If that person is working with children, the current employer may, quite reasonably, take the view after making appropriate inquiries that it cannot continue employing that individual.
On the other hand, the person concerned may have an unblemished track record with the current employer. What is the employer able to do? If he dismisses the person, he lays himself open to an action for unfair dismissal. If he transfers the person to a job that has no contact with children, that may not be to the employee's liking and he may resign to pursue a claim for constructive dismissal. That is why it should be a matter at least for discussion that an employer who takes a well-considered decision to dispense with someone's services, purely on the grounds of their inclusion on the list, should not thereby be rendered liable to an action in the courts under the employment laws.
The Minister in another place said that case law existed to show that an employer may act in response to evidence of previous misconduct that directly relates to a person's ability to perform his or her current employment. But is that good enough? I am thinking particularly of the sort of case I mentioned. An employee placed on the list as a result of a misdemeanour committed many years in the past, but with an otherwise unblemished track record with his current employer, might feel that he has been unjustly treated were he to be dismissed simply on the grounds of being on the list. But this is surely an issue for the employer to determine. A responsible employer will look at each such case on its merits and take the action he thinks appropriate. We ought to give the employer the benefit of any doubt and explicitly free him from the threat of legal action in cases where an employee refuses to go quietly.
I hope that the noble Lord will be sympathetic to my central point in this amendment. I beg to move.
Lord Meston: I take a purely technical objection. The amendment does not in fact cover wrongful dismissal; it covers unfair and constructive dismissal. That is purely technical. As a matter of principle, I do not support the suggested immunity which this amendment proposes. The question of whether or not a dismissal was unfair or wrongful surely has to be looked at on the facts and circumstances of the individual case, and, if necessary, be assessed by the court or employment tribunal which is considering the problem.
Lord Hunt of Kings Heath: Again, I understand the reasons why the noble Earl tabled this amendment. I sympathise with what he is seeking to do. But in principle what he is proposing is wrong--on very much the grounds put forward by the noble Lord, Lord Meston. However, I hope that I can provide some words of comfort to the noble Earl in this matter. Essentially, the amendment seems designed to give employers immunity from proceedings before the employment tribunal for unfair or constructive dismissal, where the dismissal or transfer to a non-childcare position was made as a result of the employer discovering that the individual is included on the Department of Health list.
While it is doubtful whether the amendment, as drafted, could in fact have the intended effect, perhaps I may address the merits rather than the technicalities of it. There is undoubtedly a sense in which it may seem
It is precisely the function of the employment tribunal to discriminate between cases and to weigh each according to its particular merits. Effectively removing access to the tribunal in this way would benefit not only those employers who have acted properly and in good faith and who would, therefore, have nothing to fear from tribunal proceedings, but also others who might have taken advantage of the immunity to disregard the normal obligations imposed by Parliament under employment law.
The employment tribunal will look at a wide range of issues when considering whether a dismissal was fair. The fact that an individual is included in the list will be but one of those issues, and other relevant issues might arise. As such, it would be inappropriate to remove the individual's right to have his case heard by the employment tribunal.
In seeking to improve child protection, it is not the intention of the promoters of this Bill, as I understand it, to remove or diminish the reasonable protections already available to relevant parties. What we are seeing here is another indication of the very careful balance to be drawn between, on the one hand, the need to protect children and, on the other, the rights of the individuals concerned who may be placed on the list.
I did say that I hoped to be able to offer some comfort to the noble Earl. Despite the strong view that I expressed in relation to the principle, I believe that there is some comfort to be drawn in relation to the practice as the crucial question is whether an employer who dismissed someone from the childcare position, because the individual was found to be on the list, would be likely to lose before an employment tribunal on the grounds that he dismissed the person unfairly. Although the noble Earl was perhaps a little dismissive of the comments made by the Minister in another place concerning case law, I think that there is some comfort in that regard.
Lord Laming: In the presence of distinguished lawyers, I hesitate to rely upon the law in reply to the noble Earl, Lord Howe. However, it is my understanding that if an employer needs to defend a claim of unfair dismissal of an employee he has five possible statutory grounds on which to do so. The one I would expect an employer in these circumstances to rely upon is as follows:
"He would state some other substantial reason of a kind such as to justify dismissal of an employee holding the position which that employee had".
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In other words, the position which the employee held at the time justified the action of the employer. Where decisions have been made in good faith, following the proper procedures, experience shows that this has provided proper protection for the employer.
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