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Lord McCarthy: The Minister made two points to which I must reply. One I will not reply to at any length because it is going to run through our debate throughout the afternoon and that is the Government's refusal so far to admit that one is not just regulating and legislating for people who get to tribunals; standards are being established. Therefore, they cannot just say, "When you get to a tribunal it will be all right because they have the ACAS code and they know about all these things". That is not just what this matter is about; it is creating a completely new concept of minimum standards. We do not know how many employers will say that that is all they are going to do. We know that many employers do not do much; that is why we are having a statutory procedure in the first place because a large number of them do not have any procedures at all, do not find it necessary to have procedures and have probably never heard of the ACAS code. We are saying that this matter is not just about what happens when one gets to a tribunal. It is about the general practice of industrial relations and the principles which operate when people are dismissed or fail to get their grievances remedied. The issues involved in that, however, will come back all afternoon.
The Minister's second comment related to language. We have used three words. They are deeply ambiguous, apparently. I have no difficulty with "summary". "Appropriate" is simple enough in the sense of something being inappropriate or appropriate. The Oxford English Dictionary has no problem with that. I think we all know what "investigation" means. However, here we have a race of employers who will apparently "fall down" when faced with the unbelievably complicated words: "summary", "appropriate" and "investigate". Now look at the Bill. It mentions "conduct". I think that is a worse word; there is no definition. The Bill mentions "characteristics". What a vague word, but, apparently, they will ride round that. The Bill also uses the words "circumstances" and "contemplate"! Yet we are being told we cannot have our amendments because they are intrinsically difficult to understand. This is nonsense. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4 p.m.
Lord McCarthy moved Amendment No. 99:
- Page 64, line 10, leave out "dismissing" and insert "suspending or dismissing (and in the case of contemplation of dismissal explaining why he does not contemplate suspension)"
The noble Lord said: There are three amendments grouped together here—Amendments Nos. 99, 107 and 111. We have come to something else that we want to put on the face of the Bill. This is about suspensions.
I suppose that the word "suspension" will probably be said to be too ambiguous to be put on the face of the Bill, but we are asking for two different things. We are asking that there should be an option. As in the ACAS code—and this is what the ACAS code suggests—it should be suggested to the employer on the face of the Bill that before he dismisses he should contemplate the possibility of suspension.The doyen of conciliators at ACAS, Dennis Boyd, who has now long since retired, used to say that the single simple measure of employer "civilisation" was whether they knew about suspension. He said that about two-thirds of British employers never seemed to have heard of suspension but they went straight to dismissal. Suspension is the mark of a civilised dispute procedure, so we will try to put it on the face of the Bill. I refer also to Amendments Nos. 99 and 107 in this regard. At the point when he decides what to do the employer should consider what I would call the suspension option. Amendment No. 111 says something slightly different because the employer is asked to state to the worker why suspension is not an appropriate step. Nevertheless, these amendments, in their various ways, are attempts to place the suspension option in the dispute procedure.
Why do we want suspension? Why does someone like Dennis Boyd think that suspension is the mark of civilisation? The notion of suspension arises in three circumstances. First, it is where there is a prima facie reason to suppose that the worker or workers have committed some form of gross or serious misconduct or failure in performance which, if it is proved, could well justify dismissal. This is a serious issue; we have to get the investigation under way. We put the worker in a suspended condition on full pay and find out whether this prima facie case is in fact proved.
The second case, which is a very common type, is where the debate or the disagreement is not between the worker and the employer at all but between a group of workers, or two workers who have a dispute between them which may in fact have taken a physical form and they require to be separated. It is necessary to find out who started it and who said what to whom. In order to have a little time to find out such important things, instead of saying they will both be sacked at the same time—as some employers do, who say, "I am not going into this"—there should be the concept of suspension. The employer should be encouraged as an act of civilised industrial relations to consider the possibility of the suspension option.
The third type of case where suspension comes in is at a very high level in management where there are allegations which strike at the root of trust or confidence, or where there is the possibility of commercial loss and no one quite knows whether the commercial loss has taken place. Dismissal might be very expensive on the part of the management because it might turn out to be justified. Actions would be taken in courts outside the industrial tribunal courts and therefore the wise course of action is to punish nobody until there have been long and careful investigations and the use of suspension.
This measure should be on the face of the Bill. We realise that it is not as common as it ought to be. We realise that more people investigate than use suspension in a creative form. But if you are going to put something in as a minimum, and if you are going to try to influence the conduct of industrial relations, to place the notion of suspension just as an option on the face of the Bill is the first element of civilisation in dispute procedures. I beg to move.
Baroness Turner of Camden: There are other cases where suspension is the only way in which an issue can be approached in a civilised way, and unfortunately there are often such cases nowadays. They are cases of sexual harassment where there is an allegation by one employee against another and where suspension is the only way to proceed while there is an investigation.
Lord Wedderburn of Charlton: This is a very, very serious amendment. It goes to the root of how the Government are going to approach this matter. Only two nights ago a leading scholar in the field of employment law, Professor Hepple, said at a meeting of the Industrial Law Society in regard to these parts of the Bill—not the other parts of the Bill:
- "This Bill is a moment of crisis for employment law.".
The ACAS code mentions the need to take a number of steps before the employer proceeds to anything like dismissal. There is no difficulty if one is in touch with real life in knowing the difference between dismissal and suspension; at any rate, suspension which is not a disciplinary suspension. In a dismissal, the employer creates a situation in which the worker does not take home his wages; at any rate, in dismissals for misconduct, which are the most serious issue in debate.
It could be that in a disciplinary suspension there is argument about whether any payment should be made or not. However, as the ACAS code makes clear, before any of those rather serious and savage disciplinary consequences are reached for, a number of steps should be taken. The ACAS code, in paragraph 15 for example, says:
- "The worker should be given first a formal oral warning".
- "In certain circumstances, for example in cases involving gross misconduct where relationships have broken down or where it is considered they are a risk to an employer's property or responsibility to other parties, consideration should be given to a brief period of suspension with pay whilst an unhindered investigation is conducted. Such a suspension should only be imposed after careful consideration and should be reviewed to ensure it is not unnecessarily protracted".
It may be the actual words we use do not make that clear enough, but in our submission—and this is the first major point for this most important amendment—the employer and the employee should have it brought to their minds by civilised minimum procedures that suspension is something that ought to be considered and that if it is not engaged upon the employer should say why. That is all in accordance with the ACAS approach. What is wrong with that? The argument that is said to be against that is that it introduces an element of uncertainty.
I do not know what the Government think Schedule 2 has in it. What does it have in it? It has the requirement of meetings. It is not at all clear what a meeting is. We shall come the question of whether a meeting is a hearing later on but the Government seem to think that the two words mean the same thing. What is a meeting? In explaining why he chooses to contemplate or decide to dismiss, the employer will obviously have to explain, certainly in the case of a first offence where one does not normally dismiss, why he did not merely suspend.
There can be argument about a requirement in Schedule 2 statutory procedures as to what are reasonable steps to attend a meeting. It becomes an implied term of the employee's contract of employment that he must take reasonable steps to attend a meeting. The employer says, "Come on Thursday"; the employee says, "I can't come on Thursday". Do you think there will not be arguments about whether he should go or not? Do you think that is not uncertain?
The Bill then provides that he must inform the employer. What is enough for that? Can he shout at him, must he put it on paper? Do you think there will not be argument about that? Do you think that that is not uncertain? The employer must send a copy of the statement to the employee. How must he do that? Can it be by e-mail, orally or in writing? Do you think there will not be argument about that? Must it be by first-class post? Preferably not. Is it enough to give it to him, or send it? What is "send"? Do you think there will not be argument about that? The meetings must be at a time and location that are reasonable. Do you think there is not going to be argument about that; whether the meeting was set at a reasonable time and location? It is then stated that in certain appeals a manager who is more senior than the first manager has to deal with the matter. Do you think there is not going to be argument about who is senior to whom in the management structure?
All of these things are a feature of the construction of the Bill which is jurisprudentially flawed in a very fundamental way. The flaw is that throughout the Bill those who constructed it think that if they put down propositions, which will be propositions of law but propositions that have to be applied to facts, it will be obvious what they mean. When somebody introduces a different proposition, they say, "Ah, you can't tell
how that will apply to the facts—it will be all uncertain.". It is that kind of attitude to making legislation which has crept into especially Schedule 2 but other parts of the Bill.There will be many disputes about what is already in Schedule 2. I missed out one: steps have to be taken by both sides without delay. I cannot think of anything more open to dispute and uncertainty than the question whether someone has acted without delay. My noble friend Lord McCarthy is always late. I always say that he is in delay but he always says that he is there in good time and I am there early. We often have disputes about it and I doubt whether my noble and learned friend would say that they were disputes without any basis in facts.
The Minister must realise that the Government have put forward in Schedule 2 minimum procedures which enter into the contracts of employment of every worker in the land and which are there to guide employers. And thank goodness they are; we are all in favour of all employers being guided as to what they should do in regard to disputes. We are not against that and I have to go on saying that because it is almost misrepresented in our position.
Of course, we believe that employers should have to follow proper procedures. These are not fair procedures—that is what is wrong—and they are certainly not procedures without any element of uncertainty. I refer to procedures such as the requirement to act without delay; to have a proper time for meetings; a proper location for meetings; to send copies; and to take reasonable steps. Of course, if one wants to argue about the application of such standards to facts, one will do so—and one will do so quite reasonably from one's point of view if one feels hard done by.
First, the amendment is an attempt to put into the schedule the most elementary standards of proper procedure. We have been very modest and we have not put in a demand the employer should issue a warning. We have not put in a demand for a first warning, second warning and third warning, which one finds in the ACAS code. We have just put in suspension. He should consider suspension, and he should say why he did not operate suspension if he did not do it. What we have said is nowhere near as uncertain as things that are in Schedule 2 already.
I wish to add a further point. During the course of what I have said, Members of the Committee may have thought it rather odd that I pause to spell out words or to make clear what I am saying orally. There is a reason for that. I am not now making a complaint and above all I wish to say, in capital letters, that I am not in any way complaining about Hansard. It does us all a great service and does everything it can to report what we say. Hansard provides the record of Committees, as it should, and there are many people out there in the real world who are actually reading what is going on. Although we have been dismissed up into the Himalayas with this Grand Committee, there are those who cannot put on their cramping tools, or whatever it is, to get here, or get into the lift, and who
cannot spend the time to come and listen as it actually happens. But they are reading it in this moment of crisis for employment law.Now, Hansard informs me that it does not have the resources—and so this is directed through the Government in charge of this Committee to whoever is the proper authority; I am not sufficiently expert to know—that it should have to provide us with a shorthand writer—not a shorthand logger but a shorthand writer—to take down what we are actually saying.
I used in my youth here, 30 years ago, to think it was really rather absurd to have what we are saying taken on to a tape and typed up, and also to have a shorthand writer. How wrong I was. The experienced shorthand writers of Hansard are the guarantee that the next day one can make sense of what has been said.
Because we do not have a shorthand writer—and I have taken this up with my noble and learned friend's colleague, the Chief Whip, who is considering the matter, but I wish to place it on record—some of the records of the last three days' discussion have been gobbledegook. Had we had an experienced shorthand writer, it is my belief that that would not have been the case.
I am not trying to slow things down, as somebody suggested to me last time after we had risen and we had reached the lift. I am trying to say that there may be errors in the record overnight, although they will be corrected no doubt in the published volumes for years to come and historians will study them. In the overnight record, there are things which it is almost impossible to expect a shorthand typist with a tape to get right. However, had we had a shorthand writer from Hansard, with their great experience and their great ability to take what is actually said in front of their face and get it into the record, we would have been better served.
Although the Committee has no Divisions—and in that respect it is different from the Chamber—I understood that it would be served with rules that were precisely the same as the Chamber, short of Divisions. Now, that appears not to be so, and I will put it on the record, I stress again, not in any criticism of Hansard. Quite the contrary. Hansard is being prevented from doing its job properly through not having the resources of shorthand writers.
I do not expect my friend to comment on this at the moment if he does not want to. I simply place it on the record. And perhaps I may say that I have had requests from Hansard, even this afternoon, to send them up written extracts. However, I have been unable to do so because I need them for amendments which are just to come. I believe that a shorthand writer would have got them without any doubt at all because of the experience and expertise that such people have shown and have served us with so well over the years.
I hope that that will not distract from my main arguments on this amendment; namely, that this is an amendment for civilised standards and it is not uncertain, especially given the standards of uncertainty that are already in the schedule.
4.15 p.m.
Baroness Miller of Hendon: Before the noble Lord sits down—I am not going to say anything about his amendment—I would like to agree with him. I approach this matter in the same spirit as he did—with no serious sense of complaint about the Hansard writers—but what the noble Lord said is correct. In fact, Members of the Committee may have noticed that I asked my noble friend Lord Rotherwick a few moments ago to go up to Hansard. I was reading what was said on Monday about an amendment, on which I agreed with the noble Lord. There is a look of surprise on the Minister's face. I was pointing out that on the many times that the Minister had spoken, he referred to the wide powers in the Bill. I am reading Hansard now and it refers to the "wise" powers given to the Secretary of State, which completely alters what I said. I felt some sympathy with the noble Lord who was speaking a moment ago.
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