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Baroness Miller of Hendon: I took comfort from the Minister's assurances that my amendments were unnecessary. I shall read carefully what he said. I was somewhat more perturbed when he said he thought some would be ineffective. However, at this stage, I accept what he says in good faith and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 279 not moved.]
Lord McIntosh of Haringey moved Amendment No. 280:
The noble Lord said: This amendment was spoken to with Amendment No. 234. I beg to move.
[Amendment No. 280A, as an amendment to Amendment No. 280, not moved.]
On Question, Amendment No. 280 agreed to.
[Amendments Nos. 281 and 282 not moved.]
Clause 17, as amended, agreed to.
Clause 20 [Power to confer rights on individuals]:
[Amendments Nos. 282A and 283 not moved.]
Lord Meston moved Amendment No. 284:
Page 10, line 17, at end insert--
("( ) Regulations under this section which create an offence--
(a) shall provide for it to be triable summarily only, and
(b) may not provide for it to be punishable by imprisonment or by a fine in excess of level 5 on the standard scale.")
After Clause 20, insert the following new clause--
(" . For section 196(2) of the Employment Rights Act 1996 there shall be substituted--
"(2) The provisions to which this subsection applies do not apply to employment where the employee does his work for the relevant employer wholly or mainly outside Great Britain.".").
The noble Lord said: This is a somewhat technical amendment prompted by the recently reported decision of the Court of Appeal in Carver v. Saudi Arabian Airlines. The existing Section 196 of the 1996 Act excludes the unfair dismissal jurisdiction where under the employee's contract of employment he ordinarily works outside Great Britain.
That phraseology is to be compared with our discrimination legislation, which does not refer to the contract but rather lays down the test of whether the employee does his work mainly or wholly outside Great Britain. The problems which are occasionally caused by Section 196 derive from the first case to reach the Court of Appeal, back in 1977, which decided that great importance should be attached to the words "under the contract": one has to look at the contract and not at what happens later.
Despite the efforts of the late Lord Denning in another case shortly after that first decision to alter what has become known as "the contract test" to a function test, the Court of Appeal has recently confirmed that it is bound by the contract test. So in the case of Carver, the appellant, who had been based in London for some considerable time, was deprived of protection from unfair dismissal.
I suggest that there are a number of reasons for altering the statutory wording, as is proposed in the amendment. First, it is rather artificial to emphasise the contract of employment if that means having to disregard what actually happens to the employee later on.
Secondly, there is scope for abuse. An astute multinational employer could summon prospective employees to, say, Denver, or some other exotic location outside this country, in order to sign the contract and to receive some initial training. However, the company could ensure that the contract provided for the employees to work in Denver or elsewhere as it may direct and then send them all back to London to work. The probable result of the contract test is that unfair dismissal jurisdiction is excluded.
Thirdly, as the Carver case demonstrates, there can also be the peculiar result that the same employee who is deprived of unfair dismissal claims may have rights under the discrimination statutes because of the slightly different wording.
Finally, in addition to introducing some desirable consistency between the different statutes, the wording proposed in the amendment is workable as a simple mathematical test which cannot be manipulated by clever contractual subtleties. In Clause 16, the Government have stood firm and decided that the ability to contract out of the unfair dismissal jurisdiction should be removed. It is in the same spirit that I beg to move this amendment.
Lord Simon of Highbury: This is an interesting proposal about the application of certain employment rights in the Employment Rights Act to employment outside Great Britain. I am most grateful to the noble Lord, Lord Meston, not only for raising it but for writing to me about his concerns in putting forward the amendment.
I understand his concern that the Act as currently worded does not adequately protect certain individuals whose contracts require them to work abroad, even though they work almost entirely in the UK. I understand that the recent Appeal Court ruling in Carver (nee Mascarenhas) v. Saudi Arabian Airlines illustrates the point in question.
Not wanting to detain the Committee on the details of the case, I confine myself to saying that it has some unusual features. The amendment put forward in its wake would perhaps provide some additional employment protection to a small group of people. However, I am not totally convinced that it is necessary. Clearly, Mrs. Carver had ample redress for her plight, as the noble Lord explained, through the Sex Discrimination Act.
That may be an unusual feature. I appreciate that there will not always be a sex discrimination angle to such cases. I am willing to look at the workings of Section 196 of the Employment Rights Act and the application of certain employment rights to employees with employment outside Great Britain. If noble Lords will allow me, I shall come back to them on Report on this issue and I shall keep in contact with them in the meantime as to how we are developing our thoughts.
9.30 p.m.
Lord Meston: I am most grateful to the Minister for that indication. In the same spirit, I shall not detain the Committee further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 285 not moved.]
Schedule 6 [The Certification Officer]:
[Amendments Nos. 286 to 288 not moved.]
Lord Simon of Highbury moved Amendment No. 289:
The noble Lord said: I shall speak briefly to Amendment No. 289. It has in common with Amendment No. 286, which was not moved, a shared objective to provide some protection for the certification officer against vexatious litigation. I imagine that the noble Baroness opposite has not moved her amendment because the issues in it are covered by this amendment. Therefore, I shall briefly explain the amendment.
Amendment No. 289 inserts another safeguard to provide some protection for the certification officer against persistent and vexatious litigants. At present, people who are declared vexatious litigants by the courts or by the Employment Appeal Tribunal cannot take a case to the courts or tribunals unless they obtain special leave to do so. That protection does not apply to the certification officer. In other words, at present there is
Amendment No. 289 closes that loophole in relation to all the certification officer's complaints jurisdictions. It allows the certification officer to refuse to determine a complaint brought by a vexatious litigant, although it does not compel him to do so. When he refuses a case, he must give reasons to the individual. That seems fair and means that the certification officer must give some limited consideration to those applications.
Provisions contained in the schedule prevent a person from applying to the courts if he has applied already to the certification officer on the same matter. We feel that they should not apply where the certification officer refuses to entertain an application from a vexatious litigant. That will ensure that vexatious litigants can go on to seek special leave from the courts to have their cases heard by them if the certification officer turns them down. Again, that seems fair and proper in the circumstances.
Our proposals comply fully with the European Convention on Human Rights. They do not close off all possibility that vexatious litigants can have their cases heard by the certification officer or the courts. If there are good grounds for the case to be heard, then the case can proceed.
I should add that the amendment does not give the certification officer the power to declare individuals to be vexatious litigants. That is a powerful sanction when it is applied. The certification officer has a very specialised role. He has no existing powers to impose penalties on individual union members. It would sit uneasily with his important but limited role if he were to have a wider power to declare individuals to be vexatious litigants. I beg to move.
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Clause 26 [Partnerships at work]:
Page 85, line 39, at end insert--
("23. After section 256 there shall be inserted--
"Vexatious litigants.
256A.--(1) The Certification Officer may refuse to entertain any application or complaint made to him under a provision of Chapters III to VII of Part I by a vexatious litigant.
(2) The Certification Officer must give reasons for such a refusal.
(3) Subsection (1) does not apply to an application under section 41.
(4) For the purposes of subsection (1) a vexatious litigant is a person who is the subject of--
(a) an order which is made under section 33(1) of the Employment Tribunals Act 1996 and which remains in force,
(b) a civil proceedings order or an all proceedings order which is made under section 42(1) of the Supreme Court Act 1981 and which remains in force,
(c) an order which is made under section 1 of the Vexatious Actions (Scotland) Act 1898, or
(d) an order which is made under section 32 of the Judicature (Northern Ireland) Act 1978.
Vexatious litigants: applications disregarded.
256B.--(1) For the purposes of a relevant enactment an application to the Certification Officer shall be disregarded if--
(a) it was made under a provision mentioned in the relevant enactment, and
(b) it was refused by the Certification Officer under section 256A(1).
(2) The relevant enactments are sections 26(8), 31(7), 45C(5B), 56(8), 72A(10), 81(8) and 108A(13).").
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