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Lord Falconer of Thoroton: Perhaps I may agree with my noble friend on two particular points. First, it is incredibly important that the record of these proceedings is accurate. It is obviously not in my hands to deal with that but I thoroughly endorse what my noble friend has said about the importance of the record being accurate.
Given this opportunity, I also thoroughly endorse what my noble friend said about Professor Hepple, who is an incredibly respected employment lawyer. When I was a student, he made a great difference to my knowledge of employment law.
Let me deal with the subject matter of the amendments in this group. I have no difficulty with the principle of the amendments, which is to encourage employers to suspend rather than dismiss immediately, or to encourage employers at least to focus on the possibility of suspension. I point to the link with the ACAS code, which makes it clear that in cases of gross misconduct, employers should consider a brief period of suspension before dismissing. My noble friends Lord McCarthy and Lady Turner drew attention to the circumstances in which actually using the power of suspension can be of great importance.
As Members of the Committee will know, the code does not require suspension in every case, thereby recognising that it might not be right in every circumstance. Moreover, the amendment would go beyond the good practice set out in the code, in requiring the employer to set out the reasons why suspending is not the chosen option. It would impose a new obligation on the employer to no great effect, once that decision had been taken.
It is not the purpose of the procedures set out in Schedule 2 to act as a checklist of options for employers. These are statutory minimum procedures and they should be as clear, precise and straightforward as possible. My noble friend Lord Wedderburn is correct—no doubt there are possible disputes about such words as "conduct" or "sending". Disputes could be created about practically anything
but we are seeking to keep the statutory procedures as clear and concrete, precise and straightforward, as possible, so that people know where they stand.My noble friend Lord McCarthy referred to the fact that possibly as many as two-thirds of employers have never even heard of suspension. My noble friend also said, earlier in the proceedings, that a great many employers had never heard of the ACAS code. I do not know whether the two-thirds figure is correct, but I do know that a great many employers have not heard of the ACAS code. Does that not make the point for the minimum standard? It is precisely because so many employers have never even heard of the ACAS code—perhaps they have not even heard of ACAS—that bringing in basic minimum procedures which have to be followed brings, as a matter of realism, some minimum standards to employees which they do not have at the moment. We are seeking to face reality and to do something which is achievable, which will make a difference to those many employees and which will affect the ignorance of those many employers. It does not in any way detract from the standards set out in the ACAS code but it does bring some minimum standards.
Amendment No. 111 would impose a requirement on the employer to inform the employee why he was not suspended instead of dismissed. As I said, this would add an entirely new obligation on the employer. It goes well beyond existing best practice guidance. The ACAS code, which implicitly recognises that suspension may not be appropriate in all circumstances, places no similar obligation on the employer.
Amendments Nos. 111 and 107, taken together, seek to ensure that employees are never dismissed instantly. Instead, the only sanction which an employer would take before the procedure is completed is to suspend the employee. I have already explained why I believe the procedures cannot go down—
Lord Wedderburn of Charlton: With great respect, Amendment No. 111 does not say that the employer should not and cannot dismiss. It requires him to say why he has not suspended instead of dismissing, which is quite different.
Lord Falconer of Thoroton: The point that I am making is that Amendments Nos. 107 and 111, taken together, seek to ensure that employees are never dismissed instantly. I hope that I made that clear. Instead, the only sanction which an employer would take before the procedure is completed is to suspend the employee. I have already explained why I believe the procedures cannot go down this road. It is not our intention to change the law on instant dismissal. In the light of my comments, I hope that the noble Lord will feel able to withdraw the amendment.
Lord McCarthy: The Minister knows very well that one can always pick holes in a particular amendment. One can look at the words and say that they are not helpful. However, it is important to decide whether the principles—the impulse behind those amendments—are matters that one can support. We would not
complain; we would be overwhelmed with gratitude if the Government were to say, "We don't like your words. This is not in the ACAS code". In fact, there is something very similar in the ACAS code but I shall not go into the words in that code. I am not saying that the ACAS code is perfect.There is a difference between picking up—"nitpicking up", one might say—the way that amendments are written and combining them so that they become worse—why do we not say that one will be taken and not the other?—and simply expressing general support for the idea that placing "suspension" into the minimal procedure is a matter which the Government will consider and will try to find a way of embodying in the Bill.
That is all that we ask. We ask for that kind of consideration to be given to the amendments that we shall be moving today rather than for the Committee to focus on the precise words—that is, whether they are ambiguous or not ambiguous and whether they take us a little before or past the position of the ACAS code. After all, the ACAS code has not been changed since 1972. It has had two major revisions but all that has been done is that the apostrophes have been moved about. It has not really been changed at all. Perhaps the ACAS code is a little behind-hand.
We want Ministers to say what they think of the thrust of our amendments, what they consider to be behind the amendments and whether they believe that they can accept them. There seems to be a very real danger in the minimum procedure, which is very short. Perhaps we should have made more of that; the Government are not taking it on board at all. For example, the modified procedure on grievances—we are not really debating that matter—has no provision for appeal, and that is monstrous.
The procedure is minimal. People who have never had, or who do not believe in, procedures find that such procedures have to be included in the employment contracts of their employees. As my noble friend Lord Wedderburn is always saying, that is the great innovation in this Bill. These procedures do not have to be put in; they go in or are implied, which is very unusual. People will say, "All right, so now they're shoving things in our employment contracts, are they, without so much as a bye or leave? It is not even like the ACAS code. We shall be taken into account if we reach a tribunal".
These provisions are going to be shoved into our employment contracts without us being told what is in them and why, or why we should observe them. Many employers may quite reasonably say, "They'll get nothing more than that". There might well be a kick-back effect in which thousands of employees who have no procedure will be subject to the minimal procedure. That will in fact be a lower level of treatment than they are receiving now. That is a very real possibility and it is one of the points that we shall probably continue to make. However, for the moment, I have no alternative but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 100 not moved.]
4.30 p.m.
Baroness Turner of Camden moved Amendment No. 101:
- Page 64, line 16, at end insert—
The noble Baroness said: In the unavoidable absence of my noble friends Lord Lea of Crondall and Lord Gladwin of Clee, and at their request, I beg the leave of the Committee to move Amendment No. 101 and to speak to Amendment No. 104.
We are now discussing procedures which should be followed and which are set out in Schedule 2. We have spent a lot of time on it this afternoon already. The first part of the amendment states that an employee faced with a disciplinary charge should be given a chance to state his case and to answer the allegations. The second part stipulates that, except in cases of gross misconduct, no employee should be dismissed for a first breach of discipline.
In case it should be argued—as I think it has been already—that it is obvious that where there are disciplinary charges natural justice decrees that an individual should be able to state his or her case and to answer the charges and that there is therefore no need to put this in the Bill, I would point out—as my noble friend Lord McCarthy has already done—that we are here considering situations in which an employer has not previously had any procedures. The Government acknowledge that by saying that about 6 million employees will now have procedures where none previously existed.
The Minister accepts that we are not dealing with people who are familiar with the kind of procedures taken for granted in many large firms where there is union recognition, collective bargaining, some knowledge of ordinary industrial relations procedure and, often, a knowledge of the ACAS code. It is therefore necessary to spell out these requirements on the face of the Bill.
The second part of Amendment No. 101 makes the entirely reasonable point—already spoken to by my two noble friends—that no employee should be dismissed for a first disciplinary offence except in a case of gross misconduct. As has already been stated, that is in line with the ACAS code of practice. In case of minor infringements, it is recommended that employees should be given a formal oral warning. If the infringement is more serious, a written warning is recommended. Minor cases of misconduct and most cases of poor performance may best be dealt with by informal advice, coaching and counselling rather than through disciplinary procedures.
Those are entirely reasonable provisions set out in detail in the ACAS code. Amendment No. 104, with which Amendment No. 101 is grouped, follows naturally from what has been said. It simply states that in arranging and conducting meetings and deciding the form of any disciplinary action, the employer should have regard to the ACAS code of practice.
I hope the Minister will agree that those are entirely reasonable propositions which are already in the ACAS code. He told us:
"( ) At the meeting the employee should be given the chance to state his case and answer any allegations that have been made.
( ) Except in cases of gross misconduct no employee should be dismissed for a first breach of discipline."
"We will be asking ACAS to revise the code in due course to ensure that it recognises the statutory procedures".—[Official Report, 18/3/02; col. CWH 194.]
As my noble friend Lord McCarthy has already said, I hope that in revising the code regard will be had to the very reasonable propositions set out in the amendment. It is quite reasonable for us to say that if there is to be a revised code we would like to know what is going to be in it. I beg to move.
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