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Lord Falconer of Thoroton: The wording is clear. The employer must set out in writing the employee's alleged misconduct which has led to the dismissal. He obviously cannot write on the basis of facts that he does not know, or facts which may emerge in the future, because facts which he does not know, or facts which may emerge in the future, could not have led to the dismissal. It is as simple as that. It is confusing to bring in Boston Deep Sea Fishing and the unfair dismissal issues, which simply obscure a totally clear statutory provision.
Lord Wedderburn of Charlton: We can deal with this very quickly. I am amazed—indeed, stupefied—at the
reply of my noble and learned friend. The misconduct paragraph does not require that he gives only the reasons that were in his mind at the second of dismissal. Suppose he dismisses on totally impossible grounds now, and then whenever this session ends in Grand Committee, goes outside and is about to write but somebody says, "You know that employee has had his hand in the till, don't you?". "No, I didn't know that. My goodness me, I'll add that".What rule are we to apply? At the moment of dismissal—that is, the moment of statement of dismissal, which I take it this means; it means summary of dismissal, which takes effect when the dismissal is pronounced—he pronounces dismissal but does not know anything. That is monstrous. But then he may be told something that undoubtedly justifies an instant dismissal, subsequent to the moment of dismissal. He then has to set that out in writing. In real life, these things are not necessarily divided by a long time. There have been cases in which the employer discovered facts very quickly after the actual dismissal. I am very sorry I do not have them to sight, but I am sure my noble and learned friend will accept from me that there have been such cases. It is just not good enough to say, "Oh, it will never arise". Of course it could arise. He dismisses summarily and then he learns facts that could justify the dismissal. Then he sets down to doing what he has to do here and sets out in writing the employee's alleged misconduct, and he puts the subsequently acquired reasons in.
Lord Falconer of Thoroton: Which has led to the dismissal.
Lord Wedderburn of Charlton: Oh, which has led to the dismissal. The employee is being dismissed; he has not communicated it yet. He is now in the position of having to say what was in his mind, so the test is subjective. He has to say what state of mind he was in at the moment he first pronounced it. If that is so, I am very glad the Government think that they have incorporated the rule in Devis v Atkins and not the rule in Boston Deep Sea Fishing v Ansell. I am not sure a court would necessarily find that that is so, but we can reflect upon it before Report stage. I am sure that my noble and learned friend will wish to do so. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 110 to 117 not moved.]
Lord Wedderburn of Charlton moved Amendment No. 118:
- Page 65, line 32, after "send" insert "it or".
The noble Lord said: This amendment concerns purely wording but also a little substance. I hope that the Minister can accept it because the procedures state, especially at page 65, line 32, that the employee must send a copy of his written grievance to the employer. That proceeds on the bureaucratic basis that employees necessarily make copies. I do not know whether that reflects real life. I should have thought that it would be sufficient for the employee to send the
written grievance or a copy to the employer. I hope that we can set a precedent with this amendment and get the Government to accept at least the spirit of the way in which it is put before the Grand Committee. I beg to move.
Lord Falconer of Thoroton: I believe that that is a good point and one that we should consider. It would be ridiculous if, by sending the original, the employee somehow failed to comply with the procedure. Therefore, we need to look at that matter in all four of the procedures in Schedule 2 and shall return with it on Report or at an appropriate stage.
Lord Wedderburn of Charlton: I understand what my noble and learned friend says and, expressing my joy if not stupefication, I beg leave to withdraw the amendment in the hope that the Report stage will see it cured.
Amendment, by leave, withdrawn.
[Amendments Nos. 119 and 120 not moved.]
Lord Gladwin of Clee moved Amendment No. 121:
- Page 66, line 11, at end insert—
At the time of the introduction of the procedure, the employer should—
(a) issue to all employees in draft form the actual procedure which is to apply to the establishment,
(b) provide the opportunity for comments to be made by employees within one month, and
(c) issue the substantive version of the procedure after consideration has been given to the points submitted.".
The noble Lord said: In moving Amendment No. 121, I shall speak also to Amendment No. 121A. As I said earlier, both today, on previous Committee days and at Second Reading, and to quote the Minister, 600,000 workplaces do not have any kind of procedure. The Minister suggests that that covers 6 million workers. He says that we are not intending to reduce the number of applications to tribunals by devious means, as some of my noble friends have suggested, but that we are trying to ensure that tribunals become the first port of call rather than attempts being made to settle disputes in the workplace.
The standard and modified procedures for dealing with dismissal and discipline and the two procedures for dealing with grievance will replace nothing. They become an implied term of contract. In my submission, there must be something between nothing and this. Therefore, we can turn to the bible—that is, the ACAS code. With regard to formulating policy it states:
In my experience, when work people become involved in a procedure, the procedure becomes far more effective. In addition, the standard procedure is
My noble and learned friend may not like that because it is not written in legalese. It is an attempt to say that when the implied term of the contract becomes operative, the employer has a duty to carry out this procedure; to issue a draft version of how it will to apply in his workplace; to provide an opportunity for his employees to comment on it; and then to issue a substantive version of the procedure after consideration has been given to the points raised. That is the kind of measure that ought to be on the face of the Bill. As I have repeatedly said, Part 2 of the Bill is skeletal and unfair. At least the proposal would provide a procedure.
Amendment No. 121A refers to Part 3, the general requirements. Members of the Committee will see that paragraph 13(3) states:
The amendment simply mirrors that. We say that if the management exercises that opportunity and carries out what is recommended—that is, bringing in a more senior manager—the employee at the appeal meeting should have the opportunity of bringing in a more senior representative.
I can well imagine circumstances where, at the first meeting—that is, the Step 2 meeting—either the shop steward in the locality if it is organised, or the shop steward from a neighbouring plant or office, or a representative, comes in and represents the worker. However, when it reaches the appeal stage, he, like the manager, may want to have someone more senior to assist him at the appeal meeting. I beg to move.
"Management should therefore aim to secure the involvement of workers and where appropriate their representatives and all levels of management when formulating new or revising existing rules and procedures".
Therefore, they will be formulating new rules of procedure and they will be required to follow the procedures set out in Schedule 2.
"In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the most senior manager attended that meeting)".
When one looks at the standard procedure, it is clear from Step 2(1) that:
"The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension".
Therefore, at that meeting, the employee has a statutory right to be accompanied. However, when it comes to Step 3, which relates to the appeal meeting, paragraph 13(3) in Part 3 of the schedule recommends that a more senior manager should be involved in the process.
6.30 p.m.
Baroness Miller of Hendon: I believe that Amendment No. 121 is impractical. We know that most employers are small employers, or even medium-sized ones. They cannot be expected to go through all the consultation procedure, and that is why it is proposed in the Bill that there should be a uniform code of practice.
How often does the employer have to reinitiate the consultation? After the employer has, as required by the amendment, given consideration to the points
submitted, there is no reason why the employer should act on them. In a sense, it makes the amendment meaningless.In this particular case, the Government have laid down a clear and unambiguous set of rules. They have also set them out in the Act itself and have not buried them in some obscure regulations. It is nice to be able to say that at this stage because so much is in the regulations. The amendment will only lead to confusion and possible delay if the employer does not draft tailor-made amendments until a dispute actually arises.
Amendment No. 121A is unnecessary. On an appeal, the employer is directed by paragraph 13(3) to be accompanied if possible by a more senior manager than attended the original hearing. The employee is allowed to be accompanied by one, and only one, representative, and there is no restriction, except for the qualification imposed by the Act, on who that representative shall be. I shall have something to say about the qualifications of the employee's representatives when we deal with that in a later amendment.
This amendment suggests that, for some reason or other, the employer's more senior manager needs to be matched by an employee's more senior representative. It is rather like the schoolboy's challenge, "My dad is bigger than your dad". From a practical point of view, as the rule itself puts it, the fact is that most disputes will involve small and medium-sized employers who probably will not have the different layers of management to which the Bill refers.
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