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The Earl of Mar and Kellie: As the last two speakers both touched on the substance of Amendment
No. 266A, which is tabled in my name, perhaps I ought to speak to it now. This is another amendment brought forward by the Law Society of Scotland and it has been trailed, with approval, by my noble friend Lord Meston.The amendment sets out to clarify and extend what the Bill implies about disciplinary and grievance hearings. As presently drafted, the Bill would allow an employer who does not have a disciplinary or grievance procedure, or an employer with an informal procedure, to avoid responsibility under Clause 10. The amendment redrafts the Bill so that an employer who invites an employee to a meeting or to a hearing with the purpose of resolving a grievance or adopting a disciplinary procedure qualifies for Clause 10 purposes, irrespective of how the meeting was formally described. I believe that there is ambiguity here which needs to be removed from the Bill.
Lord Simon of Highbury: I should like to begin by thanking all Members of the Committee for agreeing to the grouping of these amendments, which has been most helpful. The right to be accompanied, a most important individual right, is tackled through Clauses 10, 11, 12 and 13, and we have been able to link all the issues involved.
However, perhaps I may make two or three points in introduction to the issue of the right to be accompanied. As noble Lords on both sides of the Chamber have stated, this is a crucial individual right and I am not suggesting in any way--nor, indeed, are the Government--that procedures within companies do not exist. In fact, about 90 per cent of companies do have procedures for grievances and disciplinary matters which permit accompaniment at hearings. We are talking about the minority which do not and the fairness of that position.
I should also mention that there is a very good provision already included in the ACAS code of practice on disciplinary practice and procedures in employment. I believe that the code works well for both employers and employees. It is a good balance and it is easy to follow. The effect of the clause is to give the code the force of law and extend it to cover grievances about serious issues. Although I am not strong on case law, I should like to point out to my noble friend Lord Wedderburn that I believe the code of practice runs in parallel with the Bill so that procedures exist which are parallel to the legal structures for actually sorting out matters, if I may put it in layman's terms. However, we may return to that debate.
I should also like to point out to the noble Baroness, Lady Miller, that we have taken care in these clauses to avoid imposing unnecessary burdens on employers. We are certainly not going to permit trivial or minor issues to come under the scope of the new right. Moreover, I should like to make it clear that there is no obligation on chosen individuals who are trade union representatives to accompany workers to disciplinary or grievance hearings. However, those who choose to do so and who are employed by the same person as the worker who is to be accompanied will have the right to be paid for time off in line with the existing provisions of the 1992 Act. There is no right to paid time off if the
accompanying person is employed by another employer. That is absolutely clear. We are staying with the terms of the 1992 Act, with which Members of the Committee are very familiar.Perhaps I may speak, first, to Amendments Nos. 261 to 266. Amendment No. 261, which was moved by the noble Lord, Lord Meston, seeks to add to the permitted functions of the accompanying person set out in Clause 10(3); in effect, to permit the accompanying person to take a note of the hearing. That was supported by the noble Lord, Lord Tebbit, and by the noble Baroness, Lady Miller.
I can see that the Committee is anxious to ensure that the rights and responsibilities of individuals are made clear. There is nothing on the face of the Bill to prevent either party to a hearing from taking a written note of the proceedings. To do so is good practice. I dare say that there are cases where the record is neither totally honest nor totally complete but that is a matter of good or bad practice, if I may say so. We believe that the taking of a written record is a good practice. I dare say that it is practised at the majority of hearings already. We want to encourage the practice. However, I am sure the Committee will agree that the correct place to foster such practice is not on the face of the Bill but in the code of practice on this right. I refer to electronic recordings in this regard. The amendment, as drafted, would not cover that situation and that would entail us in a discussion of what exactly comprises a record. I do not believe it is right to discuss that on the face of the Bill although I readily concede that the objective that is proposed is a good one. We shall include it in the code of practice and give the appropriate advice. I hope that the noble Lord will agree that this is the best way forward and, on that basis, will withdraw the amendment.
I turn to Amendments Nos. 262 and 263 in the name of the noble Baroness, Lady Miller. The remaining amendments in this group seek to curtail the right of individual workers to exercise their right to be accompanied by their chosen companion--the word "chosen" is important--in matters serious enough to affect their livelihood. Under our proposals a worker can be accompanied by a fellow employee or a trade union representative employed by another organisation. As the noble Baroness made clear, Amendment No. 262 seeks to limit these outside trade union representatives to full-time officials only. The amendment, however, permits legal representation.
This issue has been debated in another place. I am glad of the support of the noble Lord, Lord Gladwin, and other colleagues. It remains the Government's view that such an amendment seeks to curtail a worker's right to be accompanied by his or her chosen companion. Few trade unions will have the resources to assign a full-time official to accompany every worker who wishes to be accompanied. Therefore, if there is no local lay representation--the noble Lord, Lord Tebbit, made a strong point with regard to lay representation--a union member would be unable to draw on the services of his union to help him. Both the employer and the worker stand to lose as a result because--as I think the noble
Lord, Lord Tebbit, implied--they would lose the experience and expertise that a union representative would normally bring to a hearing. It is important that that flexibility is conserved.I know that the noble Baroness will probably say that she had a choice in mind; namely, a lawyer. While we are keen to provide good work for lawyers and to establish the right representative to accompany a worker in the situations we are discussing, I am worried about an increasing tempo of legalism in this area. We are trying to keep the matter as open and as flexible as possible. I know that it could be in the worker's interest to be accompanied by a lawyer but--
6 p.m.
Baroness Miller of Hendon: There is no mention of a lawyer. Amendment No. 262 states,
- "who is a full time paid official of a union".
Baroness Miller of Hendon: I refer to Amendment No. 262.
Lord Simon of Highbury: I beg the pardon of the noble Baroness if I have the wrong amendment.
Baroness Miller of Hendon: There was an amendment on the matter which was withdrawn. There is nothing about a legal representative.
Lord Simon of Highbury: That just shows how much I was "scarred" by the thought of having legal representation when that was unnecessary. I am extremely pleased that the noble Baroness has put me right.
Lord Wedderburn of Charlton: Does my noble friend agree that such research as has been carried out shows that involving a lawyer in a procedure does not increase the amount of legalism? On the contrary it is lay people in many cases who are suggested as being the culprits--if they are culprits--in these situations.
Lord Simon of Highbury: I am now disinclined to give an opinion because I was talking to an amendment that has been withdrawn. Perhaps this is a rabbit hole down which I should not go at the current time. However, I shall be happy to debate it at a later stage.
Lord Meston: Before the noble Lord continues I should say that in a sense I partly jumped on the bandwagon when I suggested that there were a few circumstances in which a lawyer might be appropriate, particularly where the employee concerned is charged with a serious criminal matter which is dealt with, first, in the employment context but is likely to proceed to a criminal court. In those limited circumstances there may
be scope for him or her to be accompanied by a lawyer rather than someone else. I hasten to say that I do not seek extra work for my profession.
Lord Simon of Highbury: I thank the noble Lord for those comments. I think we can all agree that none of us wants lawyers to become involved unless that is absolutely de rigueur.
Lord Simon of Highbury: I am sorry; I withdraw that remark. Before I completely alienate a whole sector of this great community, I pass hastily on to Amendment No. 263. In tabling Amendment No. 263 I believe that the noble Baroness seeks to place further constraints on the category of permissible trade union representative. The amendment seeks to limit representation to a union recognised by the employer pursuant to this Bill; that is, under Schedule 1.
The amendment would deny many union members the right to be accompanied by an official of their own union and probably by any union official. One of the employment relations changes introduced by the previous government, which we have not sought to amend or repeal, is the right to belong to a union of one's choice. Members of the Committee opposite will know that simple membership of a union confers certain rights and services. Therefore, the right for individual workers to be accompanied in disciplinary and grievance hearings by a fellow employee or trade union representative of their choice underlines an important aspect of union membership.
It is frankly a little odd for the party opposite to seek to undermine that legislation--legislation with which this Government fully agree--by saying that where a worker is a member of a union, which is not the recognised union, that worker may not be accompanied by a representative of his or her own union. It is not realistic to expect that worker to be accompanied by an official of another union. The worker may not wish that official to accompany him or her and the recognised union may be unwilling to support workers who are not its members. Therefore, the net effect of the amendment is to take away potential support. The amendment seeks to limit the category of union membership available in terms of support in these circumstances.
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