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Lord Sainsbury of Turville moved Amendment No. 258B:

Page 70, line 5, leave out paragraphs 12 and 13 and insert--
("12. In section 88(1)(c) (notice period: employment with normal working hours) after "childbirth" insert "or on parental leave".
13. In section 89(3)(b) (notice period: employment without normal working hours) after "childbirth" insert "or on parental leave".")

The noble Lord said: I hope that by making that small concession we have not totally upset the noble Baroness's afternoon. However, we are grateful for the speed with which we have dealt with those amendments.

This group of amendments deals with some small technical but complex changes to the Bill. The first amendment in the group remedies a small defect in the current drafting. Under existing provisions, an employee who has given notice while on maternity leave is entitled to be paid during the minimum statutory notice period,

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whether or not she was otherwise being paid while on leave and whether the maternity leave itself was statutory or contractual. That is in line with the treatment of notice in other cases where an employee may be on unpaid leave, such as sick leave. It ensures a minimum level of protection for an employee whose job is terminating and so underlines the purpose of the statutory notice provisions.

In line with that purpose, in Part III, paragraphs 12 and 14 of Schedule 4 are intended to extend the protection to employees who may be absent on parental leave during a notice period. In doing so, however, they have inadvertently narrowed the protection to those on statutory, as opposed to contractual, maternity leave. The amendment rectifies that defect.

Amendments Nos. 259 and 298 are related, so for simplicity I shall take them together. These are small technical amendments which take into account an amendment made to the Employment Rights Act 1996 by the Employment Rights (Dispute Resolution) Act 1998 which we had missed. Paragraph 21(2) of Schedule 1 to the 1998 Act inserted into Section 118(1)(b) of the 1996 Act a reference to a new Section 127A. This amendment takes account of that insertion in removing from Section 118(1)(b) the reference to Section 127, which the Bill repeals.

Section 127 deals with compensation due where a woman who qualifies for the statutory right to return during the period of 29 weeks after the end of her maternity leave is unfairly dismissed at or after the end of her maternity leave. The section is being repealed in consequence of the repeal of the other provisions of the Employment Rights Act relating to the right to return.

Amendments Nos. 260 and 299 are also related. Paragraph 46 of Schedule 4 provides for the omission of Section 227(4)(a) of the Employment Rights Act 1996 and the word "but" immediately following it. However, that is already achieved by means of Clause 31(1)(a) and so is unnecessary. Amendment No. 260 therefore omits paragraph 46 from the Bill.

As regards Amendment No. 299, the previous amendment left out paragraph 46 from Schedule 4 to the Bill because Clause 31(1)(a) already achieves the same effect. Lines 13 and 14 of page 90 of the Bill reflect paragraph 46 of Schedule 4 and are also unnecessary, hence Amendment No. 299 to remove them. Amendment No. 260A removes an inconsistency in the Bill. The Government gave an assurance in the other place that the regulations would be subject to the affirmative resolution procedure to allow further opportunity for proper scrutiny and debate, and the Bill was amended accordingly. However, the powers relating to detriment and dismissal remain exercisable subject to the negative resolution procedure. By making these powers also subject to the affirmative resolution procedure, we are ensuring that all the powers relating to family leave can be exercised in a single instrument so that users of the regulations can find them all in one place.

I commend the amendment to the House on the grounds that it aids both consistency and simplicity. I beg to move.

On Question, amendment agreed to.

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Lord Sainsbury of Turville moved Amendment No. 259:

Page 71, line 8, leave out from ("general)") to end of line 9 and insert ("omit ", 127"")

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendments Nos. 260 and 260A:

Page 72, line 25, leave out paragraph 46
Page 72, line 29, leave out paragraph 48 and insert--
("48.--(1) Section 236 (orders and regulations) shall be amended as follows.
(2) In subsection (2)(a) after "order" insert "or regulations".
(3) In subsection (3)--
(a) after "and no order" insert "or regulations",
(b) for "72(3), 73(5), 79(3)," substitute "47C, 57A, 57C, 71, 72, 73, 76, 81, 99,", and
(c) for "or order" substitute ", order or regulations".")

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Clause 10 [Right to be accompanied]:

Lord Meston moved Amendment No. 261:

Page 5, line 11, at end insert (", and
(d) is to be permitted to take a written record of the hearing")

The noble Lord said: This is the beginning of a large group of amendments. I therefore wish to speak first to Amendment No. 261. Clause 10 provides for a worker's right to be accompanied in certain circumstances. The limits of that right will be discussed in relation to other amendments.

Clause 10(2) specifies that a person accompanying may address the disciplinary or grievance hearing and that he or she may confer with the worker during that hearing. The amendment modestly proposes that it should also be expressly stated that the companion may take a written record. The amendment is the product of too many hours in employment tribunals arguing about or seeking to establish what was or was not said during a disciplinary or grievance hearing.

These hearings can turn out to be of considerable significance in subsequent proceedings. Given the fallibility of human memory, there is no substitute for a good contemporaneous record. I recall one case in which a line manager would not allow an employee to take any sort of note of a critical meeting. I recall many more in which the employers had someone present taking a record which was later typed up and, later still, sent to the employee for agreement or comment even though that note was plainly inadequate. For example, a disciplinary hearing which lasted for well over an hour was reduced to a few short, inaccurate paragraphs. Yet that may be the only written record for appeal or tribunal proceedings which may take place months or even years later. The amendment would therefore add the taking of a written record to the list of the minimum things the worker's companion may do.

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Perhaps I may speak also to Amendment No. 266 within this group which stands in my name. The amendment provides that:

    "The provisions of sections 10 to 12 of this Act are without prejudice to the ability of an employment tribunal when appropriate in the circumstances of a case to hold that a worker has been unfairly treated--

    (a) if he was not permitted to be accompanied at any hearing by some other suitable person (whether or not a person mentioned in section 10(3)); or

    (b) if his employer failed to provide any, or any sufficient, disciplinary or grievance procedure."

Clause 10 is based on a number of assumptions which do not always apply in practice. First, it assumes that there is a disciplinary or grievance procedure established or adopted within the meaning of Clause 13(4). Secondly, it assumes that there is a union official or fellow worker who is willing and able to accompany the employee. Thirdly, it assumes that an official or fellow worker is the appropriate person to be there in the circumstances.

The new clause may be misunderstood as suggesting that in other situations it will not be necessary, or even desirable, for employers in the interests of fairness to allow other people to accompany the employee. In reality there may be situations in which the employee wishes or prefers to have present an interpreter, a relative or some other outside adviser. To give examples, in a non-disciplinary context when a dismissal on health grounds is being considered there may be a medical adviser who could be there. A disabled employee may want a carer to be there. Another employee may need to discuss or explain personal difficulties and he or she may reasonably not want those known about by other colleagues, but instead may want the moral support or practical assistance of a close friend or relation.

In other cases, if a disciplinary charge involves an allegation of criminal behaviour, a legal adviser may be appropriate. Even in the non-disciplinary context of potential redundancy, a legal or other adviser may be appropriate. I particularly remember a tribunal case involving a large employer intending redundancies who interviewed the potential candidates for redundancy. What the employees did not know was that the employers had a team of lawyers listening in the next room and, from time to time, one of the employment team would go outside and take advice. There may not be anything particularly sinister in that but it did not seem fair or open towards those whose jobs were in jeopardy.

The purpose of the amendment is to emphasise that there may be other situations outside the limits defined in Clause 10 and 13 in which it would be fair to permit the employee to be accompanied.

I recognise that the government amendment, Amendment No. 267, makes some changes to Clause 13. However, the word "directly" remains in the clause and I wonder what that word adds. I should also like to ask, if I may anticipate Amendment No. 267, whether internal appeals, after the initial disciplinary hearing, are

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covered by the new wording. If so, would it not be better to say so clearly, and if they are not intended to be covered, why not?

I am also conscious that Amendment No. 266A, tabled by my noble friend Lord Mar and Kellie, also proposes a different version of Clause 13(4). In that context and in anticipation of what the Government might say, perhaps I may ask the Government: what is the basis for restricting the subject matter of a grievance as presently defined in Clause 13 to the performance of a duty by the employer to the employee? That is likely, in many cases, to be the problem, but the grievance will inevitably be defined by the aggrieved employee. It may not strictly concern the performance of a duty, especially if that phrase is to be narrowly construed. It may often concern the way in which the employer exercises a discretion, such as a grading, promotion or a location. Surely it would be sufficient to limit it to any grievance relating to the employment. Having said that, relative to several amendments, I beg to move.

5.30 p.m.

Baroness Miller of Hendon: I should like to speak to Amendments Nos. 262 to 265 and Amendment Nos. 268 and 269 in the same group. The first four amendments relate to the same subject; namely, the right of an employee to be accompanied at a grievance or disciplinary hearing. Clearly, that is only right and proper. However, the provisions of the Bill produce a number of undesirable situations. A number of lobbying briefs I have received from employers' organisations show a considerable concern on the employers' side--not that their employees should be accompanied, but that they should be accompanied by a person with some trade union status or a colleague from the same firm.

Amendment No. 262 stipulates that the trade union official who may accompany the employee shall be a full-time union official. That does not exclude a shop steward employed by the same employer, who will be qualified as,

    "another of the employer's workers", under subsection 3(b). The Bill as drawn enables a shop steward employed by one employer to accompany an employee employed by another employer. It is then not too much of a stretch of the imagination to find a shop steward who has gained a reputation as a successful advocate on behalf of employees being in constant demand to represent other employees. One might ask: what is wrong with that? Perhaps the employer of that shop steward will find himself constantly having to give him time off as a travelling advocate. As the Bill is currently drafted, that shop steward (or other person) may not suffer any detriment or be dismissed on account of his frequent absences from his workplace. That is a consequence of the wording,

    "whether of the same employer or not", which Amendments Nos. 264 and 265 seek to rectify. Otherwise an employer will find himself having to subsidise this travelling advocate and possibly having to employ someone else in his place.

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In fact, the provision about not suffering any detriment contained in Clause 12(1)(a) is in direct contradiction to what the Government said in paragraph 184 of the Explanatory Notes, which says,

    "An employer will not, however, be required to pay his employee for time taken off to accompany another employer's worker". The Government have not implemented that promise. As drafted, the Bill would prevent the uninvolved third party employer from docking the advocate's pay for time taken off. My two amendments rectify that position.

Amendment No. 263 inserts another paragraph at the end of Clause 10(3). It provides that the union official shall be a member of a union actually recognised by the employer, if there is such a union. It deals with the problem which arises if the employer has recognised one union and then another union tries to get in on the act. The broad definition of,

    "an official of a trade union", contained in Clause 10(3)(a) would permit one union to attempt to intervene in a matter affecting a member of another union. That kind of attempted poaching can cause all sorts of inter-union strife, as we used to see in the past. We would not want the employer to be caught in the cross-fire.

I understand that a number of unions are equally concerned about this potential disruption to existing employer-employee relations and arrangements where an employer has reached a single union agreement giving a trade union exclusive individual and collective representation rights within what is called a "bargaining unit", as provided for by the Trade Union and Labour Relations (Consolidation) Act 1992.

I anticipate that the Minister may ask who may accompany an employee if no trade union official is available within the same workplace and there is no union recognised by the employer. In that case any union may be utilised by the employee. That is the difference. There is no reason why the employee should be left without an adviser if that is what he wants, but it means a totally uninvolved employer--an innocent bystander--would be drawn into a dispute involving another firm and possibly a competitor. The Bill provides for employees not to suffer detriment as a result of a grievance hearing, but in this Bill there is nothing to prevent an employer not involved in the dispute from suffering a detriment. That is another example of the imbalance of the Bill to which I have referred many times.

Before I speak to Amendments Nos. 268 and 270 I should like to comment on Amendment No. 261 moved by the noble Lord, Lord Meston. I support his amendment. The employer can have whomsoever he wishes with him and may even have a tape recording of the meeting. Obviously, therefore, the employee's representative must not be inhibited over any reasonable steps taken on behalf of the employee.

The Government's Amendment No. 267 is practically the same as our Amendment No. 268. They simply seek to ensure that the proceedings involving an employee at which he seeks to exercise his right to be accompanied at proceedings relate to a serious matter and not to some

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trivial matter. I can certainly accept the Government's amendment, but for one fact. There is a reference to "a" worker and not to "the" employer, even though that distinction appeared in the original clause. I should like to be assured that we are not talking about the possibility of a formal hearing being demanded by one worker on behalf of another who may not even want to complain.

Amendment No. 269 is reciprocal to the Government's Amendment No. 267. If there is to be a hearing about some grievance of the employee against the employer, it has to be clear that it shall be in respect of some serious matter and not something petty. We and the Government both agree about the issues covered by Amendments Nos. 267 and 268. That being so I trust that the Government have no difficulty at all with Amendment No. 269. We have no objection to Amendment No. 270.

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