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- House adjourned at one minute before ten o'clock.
Official Report of the Grand Committee on the
Employment Bill
Wednesday, 20th March 2002.
The Committee met at half-past three of the clock.
[The Deputy Chairman of Committees (Lord Dean of Harptree) in the Chair.]
Schedule 2 [Statutory dispute resolution procedures]:
Lord McCarthy moved Amendment No. 97:
- Page 64, line 8, after "must" insert ", after appropriate investigation to establish the facts,"
The noble Lord said: It might be said that the amendment was debated the last time we met or that the last time we met, when I had gone, this was debated. The noble Lord, Lord Lea of Crondall, put forward his amendment suggesting that the employers should be under an obligation to investigate promptly. The Minister would not accept that for a number of reasons to which I shall turn later. Our amendments—the four with which I am concerned today, Amendments Nos. 97, 98, 106 and 110—are not quite the same. They require an appropriate investigation and for the worker to be provided with a summary of that investigation—and before the process begins. Whether or not there is a very significant difference between these different sets of amendments, not all the arguments were developed last time. That gives us an opportunity—it certainly gives me an opportunity—to see whether I understand what the Minister was telling us.
If I remember rightly, he said first that we did not need the first amendment—and he would probably say the same about ours. I hope not, but he might. Then he said that it is all in the ACAS code, and asked why we want it on the face of the Bill? The Minister said that it is, in any case, the existing law—it is practice—and that if anybody came in front of an industrial tribunal and had not had an investigation, he would lose the case. Everybody knows that existing law requires that to be done.
If that were not enough, the Minister said that the words we used were confusing: it would not be clear what the employer had to do, because he would be doing a wide range of different things and we had not specified in some way what we expected him to do. Finally—the absolute killer—he said that we would have to send for lawyers. He said that if that amendment were passed—no doubt he could say the same about ours—there would be a lawyers' paradise.
I will deal with the ACAS code. I would like to know in what way it would be unclear. It is not clear to me that our amendments in particular are unclear. Moreover, the fact is that we are not just concerned in these amendments with what goes on in tribunals. This point has been made before and has been made in particular about Clause 25. That is why Clause 25 is so
important. It is not about what goes on in tribunals because not one dispute, not one grievance and not one disciplinary action in 500 gets in front of an industrial tribunal. It is about what employers and workers do when they do not go in front of tribunals or anything else. It is about what the ACAS conciliators say is the normal practice in cases where disputes are settled before they get to tribunals.The first point to make is that we are not just concerned with what goes on in tribunals; we are concerned with setting out standards which can be observed and which can be accepted as being fair and reasonable to all those workers who do not even get to tribunals. We are trying to make policy. The Bill is trying to make policy. It is trying to make policy for conduct in industrial relations. That is what it is centrally about. It is what all employment protection is about. It is trying to create standards in the community, whether people go to law or not.
That is why, in our amendments, we want the worker to have an investigation. The Minister said the other day that he thought it would be ridiculous to try to take a reasonable decision without investigation. But we like employers to know that; we like to put that on the face of the Bill. And we like there to be a summary so the worker knows what he has to answer.
Once again, I am sure it will be said that these things are all in the ACAS code—at least they are in the present ACAS code. We are not certain whether they will be in the next ACAS code. I would like the Minister to tell me—perhaps to promise me—that they will be in the new ACAS code. They are certainly in the present ACAS code at paragraph 10f, i, and j of the code, and their heading is Essential Features of Disputes Procedures. All the things that we suggest and other things are there in the ACAS code.
My noble friend Lord Wedderburn of Charlton asks whether they will be amended. We do not know, and that is really what we are saying. We are saying that these are reasonable amendments. We are saying that their basic justification is the essential for natural justice. Everybody is entitled to know after an investigation what they are supposed to have done, and that should be put in any minimum procedure.
"Minimum" is a very funny word. Anybody who is told that these are the minimum criteria, particularly in respect of something which limits his opportunities and his freedom, is bound to say, "That's all I have to do then. I only have to do what's down there. If I've done that, I'm all right.". There is much more in the ACAS code. In the ACAS code, for example, one is not supposed to sack people, or dismiss people, unless it is a matter of gross misconduct, and one is supposed to use suspension wherever one can. We have tabled amendments to deal with that.
However, if something is now put in law on the face of a Bill, it is perfectly reasonable for an employer to think to himself, and for some of his advisers to tell him he is perfectly justified in thinking, "This is all I have to do. This is the law. This is the minimum to which they have interfered with my managerial prerogatives.". We are saying that we want more than
that. We are saying that some, at least, of the further things, which are essential for equity and fairness and natural justice to be carried out, ought to be on the face of the Bill. These amendments are a small example. I beg to move.
Lord Wedderburn of Charlton: In a sense, any mention of the ACAS code, or the existing case law on the outcomes of tribunal cases, is in my submission quite irrelevant to the amendment, or indeed any answer to it. This is partly because the amendment comes at this stage of the Bill.
Perhaps I may explain that submission. If one looks at Clause 34, it is very difficult to discuss the Bill without looking at its very carefully contrived machinery altogether. It is a very specific and carefully constructed machinery. If one looks at Clause 34, we find that if the employer does not complete any of the procedures in Part 1 of Schedule 2, he may be regarded—shall be regarded—as unfairly dismissed, where that is wholly or mainly attributable to failure by the employer. Clause 34 is nothing to do with the ACAS code, nothing to do with the outcome of proceedings in tribunals, or precedents in the past, or cases that my noble and learned friend may cite to me. It is to do with Part 1 of Schedule 2. The employer simply has to complete Part 1 of Schedule 2 in order to escape Clause 34, which inserts new Section 98A into the Employment Rights Act 1996.
What is Schedule 2? For the answer, we have to go back to Clause 30. Clause 30 makes Schedule 2 an implied term of the contract of employment. That is rather a bad proposition. Perhaps I may amend it. Clause 30 turns an obligation to observe the statutory disputes procedures, which of course are to be found in Schedule 2, into a term of the contract of employment. I quote Clause 30:
- "Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure".
This is where Clause 33 is so important. The object of Clause 33 is to prevent certain types of case ever reaching a tribunal. A number of our amendments today take the answers of the Minister in another place—with which I am sure my noble and learned friend will be in agreement—for granted by hypothesis. A number of our amendments today will be moved on the basis that those arguments are right, as is this one. My noble and learned friend may well say—he would be right to do so—"Ah, but Clause 33 is about grievance procedures, and the question of an
investigation by the employer is at least primarily about disciplinary procedures, which is not dealt with by Clause 33".If my noble and learned friend follows me to the ACAS code—that famous document—it points out that frequently, or at any rate sometimes, a disciplinary matter raises both a disciplinary procedure and a grievance procedure. Therefore, in the course of a grievance procedure, an employee may well be saying, "But you took these steps without proper investigation—that is part of my grievance". The matter will be raised in a grievance procedure context. Therefore, whether or not an employee is prevented from ever reaching the tribunal by Clause 33 may well be inherent and central to a grievance procedure step.
As that is so, the discussion concerns whether the employee ever reaches the tribunal, not what the precedents of the case law in existence say. It is not what the ACAS code says but whether the employee is ever allowed—as Clause 33 puts it—to present a complaint to the tribunal. He is prohibited from doing so if he has not complied with the step required under Schedule 2.
As this clearly impacts upon some grievance procedure steps, it is therefore extremely relevant to both employers and employees. As my noble friend said, the employer may well be entitled to say, "I am required under Clause 32 to comply with Schedule 2". Schedule 2 does not mention any investigation. It does not even impliedly suggest an investigation; it deliberately abstains from mentioning it. That is the first reason that it should be there for the employer.
An employee, in bringing a case based on a grievance problem, may well find that he is prohibited from presenting a case even to the tribunal—he is shut out, his mouth is made dumb by Clause 33—because he has not complied with the requirement in Clause 33(2) or, indeed, the other conditions in subsections (3) and (4) to which we shall come and to which we wish to move amendments. So the arrangement applies both ways. Both an employer, who did not take advice, and an employee, who has a perfectly good grievance, may well have perfectly good grounds for saying, "Why on earth didn't you somewhere mention, at least for the avoidance of doubt and for both employer and employee, the need to investigate?". I doubt if my noble friend will argue that there is absolutely no doubt in relation to this or succeeding amendments.
3.45 p.m.
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