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Lord Tebbit: I am grateful to the Minister for his comments. In many ways I am inclined to agree with much of his argument, particularly that part which he does not wish to pursue which may tread on the corns of those in the legal profession. However, that is another matter.
As regards the matter we are discussing now, a number of employers now have single union agreements. They have been encouraged so to do by governments. What happens if there is a single union agreement and an employee wants to bring in someone from an outside union? Is that conducive to good industrial relations? I should have thought it was likely to cause dissent and concern.
Lord Simon of Highbury: The right we are trying to enshrine in the Bill is the choice of the employee. Normally, if a single union plant is involved, I imagine the employee would choose one of his own union members and that person would be a fellow employee or a full-time union official. However, I do not think that we should remove that choice. The matter is in the eye of the beholder. I think back to the complexity of the noble Lord's earlier argument and how he approved of the current form of the Marriage Act. It is a wonderful Act but I believe that there is still some concern about whether the word "obey" comprises a stand part clause. All of us will view the words that are used in different ways.
Lord Tebbit: This is another consequence of a Bill which intrudes so deeply into the workplace in legislative form. We may be setting up here something which is in conflict with what has previously been regarded as a rather good way of managing industrial relations; namely, to have a single union representing all members of the staff. I draw that danger to the attention of the Minister. I do not expect him to say that the Government have thought of a way round that, but I think there is a problem here.
Lord Simon of Highbury: We shall consider that point. However, essentially this is a hypothetical case and we must think about what happens in practice. I hope that codes of practice, good practice and the partnership between employers and unions, particularly in single union plants, will enable people to resolve these problems efficiently.
I turn to Amendments Nos. 264 and 265. The noble Baroness continues to direct her attention to the matter of the trade union representative and how to confine that, as it were. It is often the case that a worker's trade union representative is not employed by the same employer as the workers he represents even though there are single union plants in many areas.
Union branch structures are often very complex, covering more than one employer. So are corporate structures. Many employers can work from the same premises as separate employer divisions of a particular company. It is therefore possible that a worker and his lay representative do not have a common employer. As I said earlier in the debate, the lay representative--perhaps a branch secretary--may be the obvious and best choice as the accompanying person, as the noble Lord, Lord Tebbit, underlined in his valuable contribution. The Bill enables such individuals to perform this function if they wish without fear of detriment or victimisation.
These amendments seek to remove the certainty of such protection. In effect, Amendment No. 264 opens the way for employers to penalise workers who help others in exercising a statutory right. Rather more difficulty attends Amendment No. 265 because it opens the way for employers to dismiss such workers. Both amendments allow employers to penalise individuals for carrying out their legitimate trade union functions.
Both amendments reduce the likelihood of workers being accompanied by experienced trade union officials. In our view, that is not likely to help either the
employers or the employees and is likely to lead to more cases going to tribunals. I urge the noble Baroness to consider that matter and to withdraw her two amendments.Perhaps I may now turn to the amendment of the noble Lord, Lord Meston, Amendment No. 266. This amendment would insert a new clause into the Bill after Clause 12. The clause would enable employment tribunals to hold that a worker has been unfairly treated if he was not permitted to be accompanied at any hearing by some other suitable person, regardless of whether he falls within the provisions of Clause 10(3) as written. The clause will also allow a tribunal to deem that a worker has been unfairly treated if his employer failed to provide any disciplinary or grievance procedure.
Although I believe the amendment has a supportive intent, I fear that far from supplementing and clarifying the provisions on the right to be accompanied, a clause of this kind would at best cast doubt on the clear existing provisions of Clauses 10 to 13; at worst it would probably present tribunals with a very real interpretative problem. The amendment is widely drafted and can have only one effect, which is to contradict the provisions of Clauses 10 to 12 by forcing every employer to establish a grievance and disciplinary procedure and to allow accompaniment at any hearing, whether or not the matter related to employment and regardless of how minor or trivial. It would also give power to tribunals to ignore the provisions of Clauses 10 to 13 and to decide on a case-by-case basis whether accompaniment should have been permissible.
Far from having a clear guide to their obligations under law, employers, workers and tribunals would be placed in a state of some confusion. That is undesirable as an outcome. At present the core aspects of the right to be accompanied are very clearly defined on the face of the Bill. The Government have made clear, both here and in another place, their intention to supplement the Bill's provisions in this area with a code of practice.
It is not the Government's intention to force employers to establish procedures. Neither this Bill nor the Employment Rights Act require an employer to have a disciplinary or grievance procedure--although, in a company with more than 20 employees, the latter requires that the employees have the right to be informed of any disciplinary rules and procedures in their initial statement of employment particulars. But there is no necessity to have an official procedure. Nor does the legislation require an employer who has a procedure to follow it and to invite workers to hearings.
If the noble Lord's concern is that employers who do not adopt procedures will be able to treat their workers unfairly and get away with it, I can assure him that his concern is unfounded. I am sure that the noble Lord is aware that tribunals take a very dim view of employers who do not try to resolve disputes internally. Employers who do not operate any procedures--I have said already that, from our consultations, we believe that 90 per cent do--may be much more vulnerable to claims of unfair dismissal and the infringement of other employment rights. Happily, most employers operate grievance and
disciplinary procedures. Both sides of the House agree that that is very good employment practice. In framing this legislation, it is the Government's intention to build on good practice.The effect of the Bill as currently drafted will be to encourage the further expansion of written procedures, but I am not sure that we will go as far as the breadth of this amendment. I hope that having heard my reply, the noble Lord will agree to withdraw it.
Perhaps I may now turn to Amendments Nos. 266A, 267, 268 and 269, which are concerned with the subject matter of disciplinary and grievance hearings. I will deal first with the amendment tabled by the noble Earl, Lord Mar and Kellie. This amendment has one simple aim: to ensure that the right to be accompanied applies to all disciplinary and grievance hearings without limitation. The result would be that precious few circumstances would be left where workers could not insist on accompaniment.
I do not know whether the noble Earl believes that workers should be able to insist on accompaniment at counselling interviews or exploratory meetings to discuss what are potential performance or disciplinary issues. We believe that that would cause disruption and inconvenience for managers. Having to permit and arrange accompaniment every time they wanted what I used to call the "Would you like to drop along to the study for a quiet word about this problem" meeting would make things a lot more difficult to organise. We all know that meetings along the lines of "A quite word" or "A word in your shell-like" are quite commonplace. I am sure we would all agree that it is a sensible way for managers, following ACAS advice, to deal with problems effectively at an early stage. I do not think that there is a need for the law to regulate every encounter.
The Bill achieves a sensible balance by ensuring that the right will apply only where a hearing could lead directly to an action taken against the worker. We have taken a similar approach in circumscribing the kinds of grievance that would fall within the scope of the right. We need to think through the consequences of widening it into more trivial or minor issues. I agree with the noble Lord, Lord Tebbit, that once we open up the definitions from the very tight ones in Clauses 10 to 13, a situation which is difficult to manage could develop.
It is not our intention to oblige employers to permit accompaniment hearings which do not form part of a procedure; we do not want a free accompaniment system; it is not our intention to permit accompaniment at hearings without the immediate threat of disciplinary action; nor is it our intention to permit accompaniment at grievance hearings where no statutory or contractual duty exists. Therefore, having framed it in as tightly and balanced a way between employers and employees as we can, I would ask the noble Lord to reconsider the matter and withdraw his amendment.
Perhaps I may turn now to Amendment No. 267, which I will move subsequently. The Government's point was made earlier when it was mentioned en passant by the noble Lord, Lord Meston, when he was speaking to Amendment No. 261. The Government have looked again at the wording of subsection (4)(a) of the
clause which sets out the disciplinary hearings to which the right is to apply. We now come to the point of "directly" and "appeal". The right is to apply to hearings which,
- "could result directly in the employer administering a formal warning to a worker or taking some other action in respect of him".
In those circumstances, it does not necessarily follow that the action will be taken as a direct result of the appeal hearing. Consequently, disputes might arise as to whether the appeal hearing met the criteria laid down in subsection (4)(a), and hence our changing of the clause to remove what I believe is an unwelcome ambiguity from the face of the Bill. For that reason I shall subsequently move the amendment.
I now turn to Amendments Nos. 268 and 269. They relate respectively to the meanings given by the Bill to disciplinary and grievance hearings. The rights will apply taking account of Amendment No. 267, to disciplinary hearings. That is the point of the words,
- "confirmation of a warning issued or some other action taken".
That wording is clear and precise. It ensures that the right extends only as far as oral hearings in the course of disciplinary procedures at which the individual worker is required to be present and which could result in action being taken against the worker. In other words, counselling interviews and exploratory talks are excluded, as are trivial matters. I think it can be said that this amendment now handles the position of appeal and that it speaks in many ways to the issues put to me by the noble Baroness, Lady Miller, relative to her own submission on that point.
The form of words that we have used on the face of the Bill ensures that the right to be accompanied at a grievance hearing applies only to legal duties owed by an employer to his workers; that is, to his statutory, contractual or other legal duties, including potentially tortious duties. It does not involve any loose or informal obligation that the employee might feel is owed to him, such as the use of a particular space in the company car park--although in my experience that takes up a great deal of time. I believe that our wording achieves that purpose. I hope that the noble Baroness will be happy that our redefinition covers Amendments Nos. 268 and 269.
That brings me finally to Amendment No. 270, which is concerned with contracting out of the rights conferred by Clauses 10 to 13 of the Bill. We have had many discussions on the issues. I am sure that we are all agreed that the right to be accompanied is a very important individual right. Indeed, my noble friend Lord Monkswell underlined that at Second Reading when he referred to Clauses 10 to 13 as, "the parts of the Bill that will bite most effectively". I am grateful for his support in those terms.
But it is precisely because of the importance of this right to individuals that the Government consider it necessary to protect the right from restrictions on contracting out. The right to be accompanied is one of the few stand-alone rights in the Bill. In other words, unlike the majority of the Bill's provisions, Clauses 10 to 13 do not amend either the 1992 or the 1996 Act. Both Acts contain sections which effectively prohibit persons from opting out of their provisions or from waiving their rights to bring proceedings thereunder. The Government believe that it would be wholly undesirable to leave this key right unprotected from such restrictions on contracting out. We must ensure that individuals, especially the vulnerable, do not inadvertently or by coercion sign away their rights under these clauses.
The purpose of Amendment No. 270 is to close off that possibility. It does so by inserting a new clause into the Bill to ensure that this key individual right attracts the appropriate protections. The new clause achieves that by tying Clauses 10 to 13 of the Bill to the provision in the Employment Rights Act 1996 which limits the ability to contract out. I beg to move.
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