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Lord Wedderburn of Charlton: I note what my noble and learned friend says. There would be a cost but what my noble friend has said has not really been answered. This would have legal consequences. It would perhaps be otiose to try to spell them all out. The moving of these amendments does not disagree with a great deal that my noble and learned friend has said. But the central point is, do the Government really think that the end product of imposed statutory procedures should be the employer's last word? The end product is, as my noble friend has said, always the employer's last word because that is what the procedures involve. Schedule 2 leads to one result in the end always as regards both standard and modified procedures, but especially modified procedures. Modified procedures are a disgrace. In all the procedures the end product is the employer's last word. Now, is my noble and learned friend really saying that the Government considered whether something else could be added so that there would be greater confidence in these procedures, that at any rate in some kind of extreme cases there could be a stage where some other judgment was brought to bear? Or
are they insisting, because the CBI insists, that the end of imposed procedures must always be what the employer says?
Lord Falconer of Thoroton: I hope I have made our position clear, which is that we think there should be a statutory procedure as a minimum procedure. We think as a matter of principle that it would be wrong to include in that procedure any third party intervention for the reasons set out clearly in the submissions that I made.
Lord McCarthy: It would be all right for the Minister to take that view if he did not have all his other principles. The Minister has a principle that investigations cannot be included in the Bill, or suspensions or all the other recommendations and improvements that we are trying to make. I am saying that if we cannot have any of these things, the Government cannot really, honestly, sincerely believe that they are going to turn back the flood or whatever the Minister called it. I believe that he referred to the tip of the iceberg. The Government will not be able to do anything about the tip of the iceberg; they will be like the poor old "Titanic" if they do not do something. The Government may turn down my rather more extreme ideas, but they must come up with something; otherwise, they will find, in two years' time, that the numbers are still going up. The CBI will come along and ask, "Now what you are going to do? You said you would have a significant impact, but you have had no impact". That is the problem—the Government will have to do something more.
I turn to money and how much the arrangement will cost. I do not think there would be a great deal of arbitration, but there would be much more mediation. It would not be very expensive because, with a slight change to the instructions to ACAS, it could provide mediation. It does not like to provide mediation in this context because it is very close to the legal determination produced by the courts. However, it would be quite easy for ACAS, when workers want that, to provide mediation. I am not suggesting that one should shove mediation as an instant remedy, and I am not saying that one would not want people to negotiate or to conciliate and bring ACAS in. However, before ACAS lets the matter go, there is a significant moment in every dispute of this kind; that is, when the ACAS person involved decides that there is nothing more to be done by conciliation.
Conciliation is a term of art—one is not making recommendations or proposing things. People are simply being put together to see how much common ground can be found. It is not the practice at the moment, at that stage, to say, "Would you like some other third person to come in and tell you what he thinks you should do?" That is not a vastly expensive exercise, and I do not believe that a great number of workers will want it. They might want to go on at that stage and have their day in court. However, if that is impractical and if one thinks that that is impossible—if one cannot try it out even as a kind of pilot—I say
to the Ministers, "You had better put on your thinking caps and think of something else. I have done my best". I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendment No. 103 not moved.]
[Amendment No. 104 not moved.]
Lord Razzall moved Amendment No. 105:
- Page 64, leave out from beginning of line 29 to end of line 7 on page 65.
The noble Lord said: This amendment deals with the modified procedure in Schedule 2. I am delighted to see that I have the support of the noble Lord, Lord McCarthy, and the noble Baroness. Similarly, although it is not grouped with this amendment, Amendment No. 117, which is in the names of the noble Lord, Lord McCarthy, the noble Baroness, Lady Turner, and the noble Lord, Lord Wedderburn, also touches on the same point. My amendment touches on the deletion of the modified procedure in relation to dismissal and disciplinary procedures. Their amendment, which we support, touches on the elimination of modified procedure with regard to grievance procedures. I do not propose to trouble Hansard with rising to support Amendment No. 117, because most of the remarks that I make on this amendment will apply equally to the deletion of the modified procedure on the grievance procedure.
It is a very simple point—we do not yet know what the modified procedure will relate to. However, for the purposes of the discussion that is taking place outside the Committee, it is assumed that the arrangement is designed to apply in cases of gross misconduct. Indeed, the noble Lord, Lord McIntosh, indicated at Second Reading that he believed that the modified procedure should apply in the case of the standard procedure in the place of work and when people assaulted others and had to be immediately dismissed. He said that that was a common incident.
We take the view that in this context a sledgehammer is being used to crack a nut and that, if the procedures are to be modified in the proposed way by establishing a modified procedure, doing so to cover the limited number of dismissals in which an employee's behaviour is both flagrant and unambiguous is inappropriate in the context of the Bill. The Government should think again about the modified procedure if our suspicion is right that they intend to bring this in with a blanket application to cases of gross misconduct.
If we look at the standard procedure under dismissal and disciplinary procedures, are we really saying that an employee, even in cases of alleged gross misconduct, is not entitled to a meeting to take place before the action of dismissal is imposed upon him? Do we really not accept that, as a primary obligation of the employer—even in circumstances, as the Minister indicated at Second Reading, in which there has been a fist fight on the floor of a factory or, indeed, over a computer system—the standard procedures as set out in Chapter 1 should not apply? If the
Government intend to introduce the modified procedure in this way, it is far too extensive; they should think again and withdraw Chapter 2.5 p.m.
Lord McCarthy: We support the amendment and we want to extend it, as the noble Lord has said, so that it adds to the point of our amendment and so that it covers grievances as well as dismissals. The noble Lord accepts that that should be the case.
The whole issue of the modified procedure is a strange and queer one. I have read the debate in the other place on the Bill in Committee and on Report, although they were very short but I have never found a sustained defence—an explicable, clear, logical defence—of the reasons why the Government want to have a modified procedure. However, I may well have missed it.
Let us be clear about what a modified procedure is. It is sub-minimal. The minimal, God knows, is minimal enough. In the case of the grievance procedure, it is worse than sub-minimal; it practically goes through the floor. Not only do you not get a meeting, you do not get an appeal. All you get is a letter. You cannot go more sub-minimal than that—you would disappear. It has never been explained to us why we have to have this particular procedure. We have statements, instances and insinuations.
For example, people said that that would be rather useful for cases of gross misconduct. Cases of gross misconduct are usually extremely controversial and the consequences are extremely serious, because you get marched out of the firm unless suspension is used. So why you should have a shorter, briefer, sub-minimal procedure to deal with an issue of this importance and controversy, I do not understand. However, that is not really what the Government have justified.
A justification, such as it is, was set out in Committee by Mr Alan Johnson, on 13th December. He said:
- "We envisage that the modified grievance"—
- "procedure would apply to a situation where an ex-employee wants to raise a grievance with a former employer, probably in terms of a constructive dismissal case".—[Official Report, Commons Standing Committee F, 12/12/01; col. 161.]
The practicalities of this special situation make it difficult to envisage that face-to-face communication would have much of a role. Who are we to say what the individual worker wants to do? I know someone who is just about to bring a case for constructive dismissal. The one thing she wants to do is to get at the management who suspended her for four months. She wants to tell them what she thinks of them but they will not talk to her. She would love to have this lever. However, she would not get it because the management would shove her into the minimal procedures, or sub-minimal, and then they could say, "Oh, we're not meeting you".
I cannot see that this is a defence at all. We make no provision for meetings to occur in the modified two-step procedure on a grievance, but why not? In this context, it makes sense to require communication to be in writing. Who is the Secretary of State to require that communication should be in writing if an employee would rather go and give the employer an earful? Who are we to say, "No, no, no, go away and write it down"? In the modified grievance procedure, both those steps must be put in writing because the employee has left the company and there is no face-to-face communication.
I really do not understand that. If the Government were to say that the worker does not have to have a meeting, does not have to have a face-to-face confrontation, and can in fact make a submission in writing if he wants to, fine, but that could be done under the existing procedure. I do not see that the modified procedure gives the worker anything. I believe that it takes everything away and it does so in a way which would be very attractive to some employers. There is nothing on the face of the Bill—only a word or two that Alan Johnson said in Hansard—to indicate precisely when the employer can give sub-minimal treatment. Any employer could say, "I think this is an appropriate case to be dealt with sub-minimally". Those concerned will receive nothing more than a letter; they will not have a meeting and there will be no appeal.
That is monstrous, quite monstrous. Surely if the Government think about it, they could do away with those modified procedures and everybody could come in through the same door, minimal though it is. I beg to move.
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