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Baroness Miller of Hendon: I have to say to the Minister that I am disappointed that my legalistic amendment did not find the same favour with him as it found with me. Members of the Committee may laugh but I thought that this was the one that might just do the trick. We are not getting very far. The noble Lord, Lord Wedderburn, keeps talking about the measure being "set in stone", but I do not believe that this Minister heard all of that. However, no doubt the longer he stays with us, the more he will hear it.
I promised to be brief. I shall read very carefully what the Minister said. I am not sure that I agree with him, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 p.m.
Schedule 2 [Statutory dispute resolution procedures]:
Lord Lea of Crondall moved Amendment No. 96:
- Page 64, line 7, at end insert—
The noble Lord said: We are now addressing the quite novel procedures set out in Schedule 2. By ensuring a proper examination of the evidence, this amendment will enhance the degree of natural justice in the default procedure and, equally important, the confidence that we can embody in it a modest degree of what I might term "joint ownership" and credibility and acceptability.
Along with other amendments put down to Schedule 2, we are laying down on the face of the Bill benchmarks which Ministers may say are implied by the Schedule 2 procedure or which will be made more explicit in a regulation. If that is the case, we are of course in the same territory that we were in in relation to Part 2 of the Bill. In other words, the issue concerns what should be on the face of the Bill and the lack of any credible parliamentary procedure to scrutinise or amend such secondary legislation.
There is virtual unanimity right across the independent bodies of lawyers and organisations such as the Industrial Society that this part of the schedule will be seriously inadequate unless something along the lines of this and subsequent amendments is incorporated. We are not even talking about best practice but minimum practice which is not second nature to the firms which currently have no procedures and which have to be brought kicking and screaming into the 21st century straight out of the 19th.
An issue which also applies to all the other points which are to be debated under Schedule 2 is the need to put a floor of minimum practice not so far beneath
To sum up what we seek to achieve in the amendment, assuming that the Government expect employers to behave in this way—in other words, that they expect them to investigate the facts in a transparent way; I use the word "expect" as in "England expects every man to do his duty"—then let us say so on the face of the Bill. After all, we do not want to wake up one morning to be told that we cannot achieve this in secondary legislation because the provision should have been written into primary legislation.
Perhaps I may also make a point at this juncture in order to avoid repeating it in relation to other amendments tabled in my name and that of my colleagues as regards the relationship of this new default procedure to the ACAS code. I have christened it a "default procedure" precisely because the ACAS one is the benchmark procedure. It would be very odd to have two benchmark procedures, both supported by Her Majesty's Government, which say different things. That is not to say that they should, in all respects, be identical on every point, either in length or substance. After all, the ACAS code was agreed by the ACAS council as a voluntary code. The TUC and the CBI were party to it on that basis. However, we are in the unique situation of there being the prospect of one benchmark procedure undermining another.
There must be an irreducible minimum on particularly significant points in the ACAS code where these contradictions would be undesirable, to say the least. Perhaps I may draw attention, for example, to paragraph 4 of the ACAS code, which refers specifically to the need for the rules to be accepted as reasonable, both by those covered by them and by those who operate them.
Finally, perhaps I may relate the amendment to the consideration which has been referred to on many occasions—namely, the expectation or intention that this new procedure, and the built in delay in going to a tribunal, will divert some cases into settlements within the procedures of the establishment. That is fine, or at any rate everyone hears what has been said about it. Let us note that if there is to be a settlement procedure; otherwise, we are relying on a theory of deterrence which has been adequately adumbrated on several previous amendments.
Let me conclude on a positive note. If we get Schedule 2 right, and encourage both parties—both sides as we used to say—to find procedures which are mutually acceptable—and we have a long way to go—that will provide in the medium term a step forward for many millions of workers in an adult and civilised employment relationship. However, that will only apply if there is a de facto acceptance that the ACAS code underpins the credibility of Schedule 2 as a means of securing acceptable settlements and complements the role of the tribunals. I beg to move.
Lord Gladwin of Clee: I shall be very brief as I am conscious of the time. The problem here, as my noble friend has said, is that, as it reads, Schedule 2 is not fair. It is no good my noble friend shaking his head; it is just not fair. The amendment and subsequent amendments seek to remedy that. At the moment we are being told by personnel directors that it will be more difficult to persuade line managers to follow the correct procedure when they realise that "they can get away with it".
This skeleton needs changing. The best way to change it, and the way to deal with the perception that my noble friend the Minister was talking about earlier this afternoon, is to change it on the face of the Bill. I hope that my noble friend will recognise the force of that argument and at least be prepared to take this measure away and come forward with amendments, or perhaps indicate on the face of the Bill regulations that they may be considering. As regards the bald statement about the four procedures, people should understand that there is more to that than they read on the face of the Bill. I go back to where I started—any reader of this schedule will recognise it as being unfair as it stands.
Lord Sharman: Amendments Nos. 100 and 112 are grouped with Amendment No. 96 and address the same issue in a different way. The purpose as we see it is to include both within the standard and the modified dismissal and disciplinary procedures a requirement that employers should conduct an investigation prior to dismissal. The purpose of this is to ensure that the minimum procedures have at least the capacity of the requirements for a fair dismissal.
As drafted the procedures are in our view unsatisfactory because they create an additional hurdle for employers without delivering any benefit in exchange. An employer who complies with the appropriate procedure will protect himself against a finding that the dismissal was automatically unfair, but because the statutory procedures are inadequate they will not do enough to assist the employer in demonstrating that the action taken to dismiss was not an unfair dismissal for any other reason. That is unsatisfactory for all parties.
A sensible procedure would as a minimum contain all the elements which could make a dismissal fair. In a case of dismissal for misconduct, for example, an employer will still have to show that he or she genuinely believed that the employee was guilty of misconduct and that that belief was based on reasonable grounds after a reasonable investigation had occurred. Because this reasonable belief is a requirement for a fair dismissal, proof that it existed should be included in the statutory procedure after a reasonable investigation. Because this reasonable belief is a requirement for a fair dismissal, proof that it existed should be included in the statutory procedure.
The amendment requires employers to conduct an investigation prior to dismissal as they would be required to detail the evidence—that is, the proof—that they had conducted such an investigation to detail that evidence on which they would rely. With the
Lord Wedderburn of Charlton: I appreciate what the noble Lord has just said, and the manner in which it impacts on quite a large number of amendments which are to come. I am not protesting about the groupings; I know only that we are still in Committee at nearly twenty minutes before eight when a guarantee was given at the earlier sittings that we would end at 7.30 p.m. Nevertheless, it is good that this matter should be aired first, albeit at this late hour. I hope that the Minister will not reply to the reasonable points put forward when the amendment was moved simply by saying that that would create uncertainty in Schedule 2. We shall come to that issue when we consider on subsequent amendments. I should have addressed them tonight, were it not so late, in relation to this amendment. I give notice that I will raise that, and I hope that my noble and learned friend will not open that question tonight. I also hope that he will not say that the law that exists is very clear and the matter will just go on in the future and will not be affected by his schedule. Such a prediction about what the courts would do would be regarded as most unwise, and I doubt if he would advise in an opinion that the present law will be unaffected by Schedule 2. However, that is a wider debate and to advance it at this stage of the night would be quite improper. We shall come to it the next time that we consider the matter.
"( ) When a disciplinary matter arises the employer should first establish the facts promptly."
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