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Lord Gladwin of Clee: Clause 10 of the Bill seeks to put into statute part of the ACAS recommendations that have been used for a number of years. The Code of Practice: Disciplinary Practice etc (1977) states that, "Disciplinary procedures should", and lists a number of issues. The one to which I want to draw attention is (g), which states,
- "Give individuals the right to be accompanied by a trade union representative or by a fellow employee of their choice".
Reference was made to that when the Bill was being debated on 9th February in another place when the Secretary of State, Mr. Stephen Byers, said,
"All individuals--regardless of the size of organisation for which they work--will be able to have someone of their choice represent them at a grievance or disciplinary hearing".--(Official Report, Commons, 9/2/99; col. 132.)
- "who is a full time paid official of a union".
Amendment No. 263 further restricts it by saying that if the company recognises a union, then the full-time paid official must be employed by that trade union. Amendments Nos. 264 and 265 seek to take away the possibility of other employees representing someone who is in the middle of either a grievance procedure or a disciplinary procedure.
Many trade unions have very few full-time paid officials. They depend upon their lay elected officials to represent their membership when they go through either disciplinary or grievance procedures. Also, speed is important, particularly if it is a disciplinary process. I am bound to say that the availability of full-time officials is sometimes not immediate and so one has to
rely upon lay officials. There are circumstances where neither a fellow worker nor a full-time official would be the most appropriate person to represent an employee who was subject to disciplinary action or who was pursuing a grievance.I can think of a number of circumstances, which are quite usual these days, where a manufacturer has a number of contractors on site who are there virtually permanently. The employee is often not represented, but he wants speedy assistance and will often go to the shop steward, the convenor, of the host site.
My objection to the amendments is that they restrain the right of an employee to be accompanied and represented at disciplinary and grievance procedures.
Lord Tebbit: I find myself in the slightly odd position of having to agree with an amendment put forward by the Liberal Benches. However, we have had a few concessions from the Government Front Bench, which makes it a kind of holiday, so we may as well double it. I support the sentiment behind Amendment No. 261, although I have some concerns about it.
I recollect saying when I was a lay official in my trade union, in a moment of irritation when we came to consideration of the minutes of the previous meeting which had been provided by the employer's secretariat, that the minutes of a meeting should represent the lies which were actually told and not the lies which people subsequently wished they had told. I carried that thinking through to my days as a Minister. I would frequently insist, before people left my office after a difficult meeting at which we thought conclusions had been reached, that the conclusions should be written down in an aide memoire, and that we should all read them and agree that that is what we thought we had agreed before the meeting finally broke up. It is important for the avoidance of unnecessary future disputes.
Amendment No. 261 only refers to a written record of the hearing, and it might be implied that Parliament did not intend it to cover an electronic recording of the hearing. I should like to hear from the Minister whether that is likely. I have always found that lawyers say that if you include one bit of detail, there is an implication that the other bits, which might have been there but were not, are specifically excluded.
I also agree with the intention behind the other amendments, but I hope that they cannot be held to exclude a lay member of a union accompanying the person who is the subject of the disciplinary action.
I am still a member of the British Airline Pilots' Union. That union has very few paid officials. Most of the work is done, and done in my view much better, by lay members. I would not want to see in the legislation a situation whereby they were not allowed to represent and support a member who is appearing in disciplinary proceedings.
As I listened to noble Lords, it went through my mind that we should thank the Lord that the Government are not putting into law the marriage service. My goodness; just imagine the length of the schedules, the
amendments and the discussions as to the meanings! Indeed, it has worked rather well on the whole, and I do not think it would have worked any better if it had had 75 pages of legal jargon stuck on the end of it; nor will the Bill.
Lord McCarthy: It may be working very well, but it is being used less and less.
I hope that the Government will accept Amendment No. 261. As the noble Lord, Lord Meston, stated, frequently there is no agreed record of tribunal proceedings and no right of the representative of the employee to compile an independent record. The noble Lord, Lord Gladwin, read from a 1976 document, but that does not state that an individual worker has a right to a representative and that that representative has a right to write, nor is it found in a more recent publication, the employment handbook of ACAS. Most people with any real experience and feel for this subject would never deny the right of a worker to have a representative, nor would they deny the right of that representative to write and give their account. Perhaps the authors of these handbooks assumed that it was a natural thing. It is time that it was put into the law, and I hope that the Government will do that today.
Baroness Gardner of Parkes : I have sat for 20 years in an industrial tribunal. In theory, I agree that it is a good idea that the representative should take a note. I agree with the noble Lord, Lord Meston, that it would be helpful to the tribunal to have those notes.
However, a major problem is that if someone is slowly and laboriously scribbling away it will inhibit the proceedings and the flow and interchange. The noble Baroness, Lady Miller, suggested a tape recording which could later be transcribed. That is a good idea. In a number of hearings, verbatim reports have been prepared from tape recordings and there has been no argument about it. Where, however, people have different notes, very often those notes do not agree.
In my capacity as chairman of a charity, a case was brought against the charity which was very interesting because it was a very different experience from sitting and hearing cases. In that instance the employee flatly refused to sign any text of any meeting that we produced. She was very much a loner and refused to have anyone with her. We asked her to sign the note to say not that she agreed with it but that it was a correct record of the meeting. She would not sign anything because someone had told her not to sign anything. It was an impossible situation.
The most difficult situation occurs before commencement of the disciplinary or grievance procedure, for example when someone is called in for a general discussion about their affairs and is asked if they would like to bring someone with them. They automatically think that it must be really serious. Very often, what begins as a consultation between the two parties progresses to either a grievance or a disciplinary procedure. In those circumstances the meeting should be suspended and the resources that are set out here should
be offered. The transition between a general discussion on employment and the formal procedure is not fully covered in the Bill.No matter how much detail you put down to cover these things, they never quite work in the way intended. Although every detail is here, there will still be something which will be defective. I would be worried about people taking notes in such a slow and laborious way because it would hold up proceedings. That is why I was hoping that there might be some agreement for having tape recordings, which could be transcribed later.
Lord Wedderburn of Charlton: Underneath many of the comments made by Members of the Committee is the question whether there must be a grievance or disciplinary procedure. As I understand it, the Bill does not go that far. Nevertheless, because we discussed this last year during the proceedings on the previous Bill on dispute resolution, the noble Lord, Lord Meston, will know that there is authority in the courts. I believe that the latest effusion was in 1995. However, it is possible that the Minister has some other authority or that he wants to get rid of it. I have in mind the case of Goold v. McConnell. According to the head-note, the Employment Appeal Tribunal held that the authority was,
- "an implied term in a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance".
There are also remarks about disciplinary procedures, but the case is not concerned with them directly. However, if that be right and, if, in a general sense, there is an implied term that the employee has a right to a grievance procedure, it is likely that the courts will go a little further. Indeed, at the end, the judgment says:
"The breach [of the contract] is the failure to provide or operate a proper procedure",
and that was a continuing breach. There is talk about proper procedure and, obviously, in the next case one might predict that the nature of a proper procedure would be looked at by the court and that questions such as keeping a record would have some impact in that respect. I can imagine a case where a number of the elements of a grievance procedure addressed today might be taken further as a matter of implication in the contract of employment.
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