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Lord Gladwin of Clee: Before my noble friend sits down, will he clarify a remark that he made? I understood him to say that 90 per cent of employers had disciplinary and grievance procedures, and that that had been established by consultation. I am bound to say that, given the experience that the noble Baroness, Lady Gardner of Parkes, and I have had on employment tribunals, on the Employment Appeal Tribunal and in industry, it is a very surprising figure. I am interested to know where it came from.
Lord Simon of Highbury: I thank my noble friend for his interest. First, I hope that Hansard will be right, in that I said 90 per cent of firms have established procedures. We have discovered that through consultation--not by consultation. In other words, the procedures are not achieved by the process of consultation; they may be, but that is not what I said. We believe, through consultation--talking to the CBI, looking at surveys, talking to union representation--that the level is something like 90 per cent representation of those procedures within companies. But if there is an element of doubt in my noble friend's mind, I am happy to give him the basis on which I made that statement. I have usually learnt to trust my officials when I speak at this Dispatch Box and I am not going to desert them now.
Lord McCarthy: Before the Minister sits down, the Government have said several times during the course
of the passage of the Bill that there will be a code of practice. What kind of code will it be? There is the 1977 code of practice on discipline, and there is the 1987 ACAS advisory handbook, Discipline at Work. Will the code of practice cover the whole of discipline, both in this Bill and in other legislation; will it replace the 1977 code; or what?
Lord Simon of Highbury: The intention is to enhance the existing ACAS code on disciplinary matters.
Lord Meston: It is my intention to withdraw the amendment. We have had a useful debate on the rather slender back of Amendment No. 261. In the course of that debate, I have obtained a remarkable achievement in securing the support not only of the noble Lord, Lord Tebbit, and the noble Baroness, Lady Miller, but also the noble Lord, Lord McCarthy, altogether.
The amendment was based on a practical consideration, as the noble Lord, Lord Tebbit, identified; namely, that if it is at all possible there should be a prompt, accurate, agreed note of what takes place during these important hearings. I should not wish to stop electronic tape recordings being used as a matter of good practice. The purpose of the amendment is to suggest a minimum rather than a limiting factor. Of course, that will not rule out, as the noble Baroness, Lady Gardner of Parkes, said, the sort of squabbles with which she and I are all too familiar, even if there is a tape recording. I have taken part in a case in which the authenticity of a tape recording was the subject of lengthy squabbles. The Minister said that there is nothing to prevent a note being taken, but there is nothing to permit a note being taken either. It is important that it is laid down either on the face of the statute or in guidance.
The noble Lord, Lord Tebbit, suggested that it is possible to legislate too much and that the Marriage Act would be overburdened by too much prescriptive legislation. I spent a great deal of my professional life considering the validity of marriages. The noble Lord is right that one can legislate too much. The English Marriage Act provides that a man may not marry his grandmother; the Scottish Marriage Act provides that a man may not marry his great-grandmother, which suggests that perhaps the Scots are either very cautious or adventurous. I am not sure which.
My amendment was not in any way intended to constrain the important new provisions in Clauses 10 and 13. The noble Lord, Lord Gladwin, spoke about amendments to constrain. I hope that he did not include my amendment in his remarks.
As to Amendment No. 266, I understood, as I believe did the noble Lord, Lord Wedderburn, that the provisions were intended to give only partial statutory effect to the case of Goold. As the Minister said, the right to be accompanied can be absolutely crucial. I did not intend in Amendment No. 266 to cast any doubt on the utility of Clauses 10 and 13 or to force employers to have a procedure where one does not exist, although we all agree that it is good practice to have it. Towards the end of his remarks the Minister said what I thought
he would say; namely, that in effect Amendment No. 266 was unnecessary. On that basis, I certainly do not intend to press it. However, I suggest that, although the Government have sought to improve Clause 13 and its width of application to disciplinary proceedings, there is still a case for some extension of the scope of the grievance hearings to be covered. That is perhaps something to which we need to return at a later stage. Meanwhile, I beg leave to withdraw Amendment No. 261.Amendment, by leave, withdrawn.
[Amendments Nos. 262 and 263 not moved.]
Clause 12 [Detriment and dismissal]:
[Amendments Nos. 264 and 265 not moved.]
[Amendment No. 266 not moved.]
[Amendment No. 266A not moved.]
6.30 p.m.
Lord Simon of Highbury moved Amendment No. 267:
On Question, amendment agreed to.
[Amendments Nos. 268 and 269 not moved.]
Clause 13, as amended, agreed to.
Lord Simon of Highbury moved Amendment No. 270:
Page 7, leave out lines 40 and 41 and insert ("administration of a formal warning to a worker by the employer, the taking of some other action in respect of a worker by the employer or the confirmation of a warning issued or some other action taken, or")
After Clause 13, insert the following new clause--
(" . Sections 10 to 13 of this Act shall be treated as provisions of Part V of the Employment Rights Act 1996 for the purposes of--
(a) section 203(1), (2)(e) and (f), (3) and (4) of that Act (restrictions on contracting out), and
(b) section 18(1)(d) of the Employment Tribunals Act 1996 (conciliation).")
On Question, amendment agreed to.
Lord Razzall moved Amendment No. 271:
After Clause 13, insert the following new clause--
(" .--(1) The Secretary of State may make regulations for the purpose of prohibiting, in relation to any employment matter, discrimination by an employer against another person on grounds of that person's age.
(2) In subsection (1) "employment matter" includes--
(a) the offer or refusal of employment;
(b) the termination of employment;
(c) terms and conditions of employment;
(d) the provision of training or skills development opportunities;
(e) promotion and career progression.
(3) Regulations under subsection (1) may--
(a) specify the types of action, or failure to take action, which are to be taken to constitute discrimination for the purpose of this section;
(b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal in relation to cases brought under this section;
(c) provide for penalties to be imposed or, as the case may be, compensation to be awarded in respect of offences committed under paragraph (a) above;
(d) specify exceptional circumstances in which, in any proceedings arising under this section, it would be a defence for an employer to show, having regard to the nature and commercial viability of the business or undertaking in question, that--
(i) it was reasonable for him, in deciding to treat one employee differently from another in relation to an employment matter, to take account of the respective ages of the relevant employees, or
(ii) age was not a significant factor in any decision to treat one employee differently from another in relation to an employment matter.
(4) No regulations shall be made under this section unless a draft has been laid before, and approved by resolution of, each House of Parliament.")
The noble Lord said: Noble Lords will be aware from the behaviour on these Benches on the first day of the Committee stage and today that, by and large, the Liberal Democrats support the Bill and its purposes. Apart from the occasional interjection, which is intended to help, we have not chosen to replicate or duplicate the arguments advanced by the Government because, by and large, we agree with them. However, Amendment No. 271 reflects the first of three amendments that go to what we regard as a fundamental flaw in the Bill; namely, the failure to take the opportunity to do something about discrimination in the workplace.
By way of introduction, I refer noble Lords on the government side to what I believe is mandatory reading; namely, the Labour Party manifesto in the 1997 election. Page 35 speaks in glowing terms of the equal rights of the citizen and states:
We on this side of the Committee are somewhat surprised that the Government have failed to take the opportunity afforded by this Bill to legislate against age discrimination. I refer particularly to a speech made by Mr McCartney, a shadow Minister in another place, on a Bill introduced by the Tory government in 1996:
"We will seek to end unjustifiable discrimination wherever it exists".
The first area of unjustifiable discrimination which we anticipated the Government would seek to end is age discrimination in the workplace. I shall not bore the Committee by rehearsing examples of significant age discrimination. I believe it is common ground on all sides of the Committee that age discrimination exists as a serious problem in the workplace in regard to both existing and prospective employees who seek jobs. For the record, I commend to any noble Lords who are uncertain about the subject the work of Professor Smithers at the University of Liverpool, which demonstrates entirely effectively that age discrimination is a significant problem in the workplace for existing and prospective employees.
"The Labour Party's position is quite clear ... an incoming Labour Government will introduce comprehensive legislation to make age discrimination in employment illegal".--[Official Report, Commons, 9/2/96; col. 618.]
Listening to noble Lords opposite, I had understood that this Bill was their flagship legislation in which they intended to deal with the remaining questions in their mind in the field of employment legislation. I repeat the words of Mr McCartney in 1996:
"The Labour Party's position is quite clear ... an incoming Labour Government will introduce comprehensive legislation to make age discrimination in employment illegal".
No doubt the answer of the Government is that they have changed their minds and want to introduce the new voluntary code of practice to tackle age discrimination at work which they announced just in time for the Committee stage of this Bill on 14th June. I do not believe that any member of the Committee wants that voluntary code of practice to fail. We all hope that the code which has been negotiated and discussed with the relevant representative bodies, such as the TUC and others, will work. But if the code does not work we want the Government to have the legislative framework in place so that they can legislate to ensure that age discrimination, if it is not dealt with voluntarily over the next year or two, is covered by legislation in the form of the regulations provided for in the amendment. That can be done without the necessity to come back to Parliament and find the legislative time for primary legislation. On that basis, I beg to move.
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