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Baroness Turner of Camden: As I understand it, my noble friend in tabling the amendment thought that it should not just be the matter of an employer issuing procedures as a form of edict, with instructions to contact Mr X or Miss Y as appropriate. The employers themselves would have been involved and, in the course of being involved, would know and understand the procedures as a result. This, as my noble friend Lord Gladwin has pointed out, is fully in line with the ACAS code, which stipulates that rules and procedures need to be accepted as reasonable, both by those who are covered by them and those who operate them. Management should therefore aim to secure the involvement of workers and, where appropriate, their representatives and all levels of management in formulating new or revised rules and procedures.
I hope, therefore, that the Minister will feel that he is able to give support at least to the ideas in this amendment, even if he may not like the exact wording.
Lord Wedderburn of Charlton: I would like to speak in support of Amendment No. 121. It may be that my noble and learned friend will say that it is unnecessary, because the employer is able to agree procedures, other than the basic procedures and the statutory procedures of Schedule 2, with representatives of his employees. But if that were said, in my submission, that would be wrong, because Amendment No. 121 goes just a little further, and most valuably further,
It requires that the employer must, in a sense, consult with his employees. He must issue a draft—the Government know all about issuing drafts now—and receive comments back. I understand from what my noble friend said in moving the amendment that the substantive version then issued would be more like an agreed version.
That would be extraordinarily valuable and it is not covered by the Bill. Although the Bill allows for other procedures to be added to the statutory procedures—and we shall want to move amendments to the way it does it—it does not require the employer to try to obtain an agreed structure at his place of work with representatives of his employees.
That notion is not so very different from the spirit in which my noble friend Lord McCarthy moved the amendments relating to third-party intervention. It was that some confidence in the workers must surely be valuable in regard to the procedures which really hit them at their place of work. After all, at the moment they are just going to be told, "Parliament imposed this and here it is. This is what I tell you you are bound by".
But the proposal gives the workers at least a voice, although it does not actually say that their voice has to be agreed to. In fact, I would wish to move on Report that some duty of consultation more formally should be added. But at least this amendment gives workers a voice. I do not see how the Government could dislike the spirit of Amendment No. 121.
Lord McCarthy: I do not want to disagree with my colleagues but I am afraid I can forecast that the Government will. What this amendment does, almost incidentally, is to destroy the whole idea that what we have here is a procedure. The standard procedure and the modified procedure in both their forms—the four different forms—do not involve what anybody outside the Government would ever call a procedure, even of the most minimal kind, because it does not deal with any of those matters. Schedule 2 contains a series of suggestions as to how the employer should deal with complaints—complaints against his use of his disciplinary functions and complaints of discrimination or anything else that might end with the employer in a tribunal. The Government are saying that that is a way of dealing with the complaints. That does not involve a procedure; there is nothing set out that all workers can be given and told, "This is the way that things are going to happen". If you had a minimum procedure, you would have some kind of process; you would know who dealt with these things and where the authority structure lay in the organisation. You would know which people had the ability to sack and which people did not have the ability to sack. You would have some idea of what warnings people would get—I refer to the ACAS informal, formal and final warnings. Those are the matters that go into procedures and, of course, they cover everybody. They are supposed to be standardised across the board. None of these things
occurs in the standard procedure. It is simply a kind of aide memoire to employers as to how to deal with complaints.
Lord Wedderburn of Charlton: Before my noble friend sits down, is he perhaps being rather hard on the amendment? As I understood it, I am not sure he has really taken on board the full import of the procedure. I understood the amendment to involve saying, "Here are the minimum procedures in the Act but I, the employer, would like them to operate here, at this place of work, in the following actual procedure. That is, if you are going to complain about a grievance, see Joe Soap; if you are going to appeal to a manager it will probably be John Robinson. You comment on this". Then the workers comment on that, and the employer considers it—I would rather that the duty were higher—and then he puts out the substantive version at his place of work. Perhaps I have got it wrong. My noble friend seemed to see behind all that to some way in which the arrangement could not possibly affect the statutory procedures. Perhaps I have go that wrong?
Lord McCarthy: No, I am saying that they would not grant it.
Lord Gladwin of Clee: We should not encourage my noble friend.
Lord Wedderburn of Charlton: No, I do not understand his objection.
Lord Falconer of Thoroton: I am not sure whether our debate has degenerated into a private conversation between my noble friends Lord McCarthy and Lord Wedderburn. We would like the benefit of whatever they are saying, as it were, to appear on the record.
I shall deal with the two amendments proposed by my noble friend Lord Gladwin. First, Amendment No. 121 is basically saying that at the time of the introduction of the procedure, the employer should consult with his workforce about procedures and the actual procedure. The difficulty that one has with that is, as my noble friend Lord McCarthy made clear, that whatever one's reservations about it, the purpose of the Bill is that that procedure is compulsory. It applies everywhere. The employer, for example, cannot seek to vary it downwards in any way at all. I doubt whether my noble friend intended that that was what his amendment would signal but there is a danger that it might have that effect. Because the nature of the procedure is that it is going to apply to everybody, I think it gives the wrong signal. It is not right to say, "Consult about that which is coming to everybody anyway."
There is another problem. If my noble friend intends a wider consultation—namely, "Let's talk about procedures generally"—the notion that would underlie the amendment would be that employers of all sizes would be legally obliged to consult their workforce on their procedures. As my noble friend knows, many employers operate very good procedures. We hope that many will adopt their own procedures following the Bill's implementation. In
many cases, there will be such consultation. However, we believe that such consultations are best undertaken on a voluntary basis, without imposing a legal obligation to do so. The amendment would require employers of all sizes to consult—that would be very onerous and unnecessarily prescriptive. Also, by implying a particular form of consultation, it might also cut across existing consultative arrangements. For example—I am sure this is not the intention of my noble friend—it might cut across the existing role of recognised unions in discussing internal procedures.As my noble friend will know, the EC Directive on Information and Consultation has recently been adopted and creates a general framework for informing and consulting employees about a range of issues affecting them. We will be undertaking a wide consultation on how best to implement the directive in a way that fully reflects our industrial relations practices and traditions. It would create confusion if we were to introduce further obligations to consult within the Bill before our work on implementing the new directive was completed.
I hope that, in the light of that explanation, my noble friend will feel able to withdraw Amendment No. 121.
On Amendment No. 121A, the basic point underlying it is that, if the employer is allowed a more senior manager, the employee should be allowed one, too, in terms of who accompanies him. The position is that he is. I shall briefly explain the situation.
As noble Lords will be aware, workers have a right to be accompanied by a fellow worker or a trade union official during disciplinary and grievance hearings. Under that right, the companion can be any work colleague or a union official, where an official has to be certified in writing by his or her union as competent to act as a companion if the official is not employed by the union, or if the person to be accompanied is not a fellow worker.
There are no restrictions on the seniority of the accompanying person—they can be senior, the same grade, or even junior. So long as they are a work colleague or have fulfilled the criteria to be a companion, their seniority is not an issue and we certainly do not want it to become one. The most important issue is that they are the right person.
It is for the worker to decide who should accompany him but he, of course, cannot insist that the person he wants will accept the task, or that a union must accept his choice of official. If the person is to be a union official, it is, therefore, left to the discretion of the union and worker to decide which official would be the most appropriate. Probably, the union will be happy for the worker to be accompanied by the official of his choice, whether senior or not, but if there was any disagreement on the matter, that would have to be worked out between them.
The amendment appears to give the option of allowing a senior representative but, as I have just indicated, this option is already available to a worker. If it has been determined that the appropriate person to accompany the employee is senior, so be it.
Therefore, I do not believe the amendment is necessary, because the right is already there as far as the employee is concerned.I want to make one further point on the side. Paragraph 13(3), to which my noble friend referred in moving his amendment, is about a more senior manager dealing with the issue at a second stage. That was there for the employee's benefit, to ensure that the same manager who has initiated the action is not dealing with the appeal, except that there is only one layer of management. That does not detract from anything that I have said, but it may be that one is looking at it as a right for the employer to go up one level, whereas our intention was to provide a protection for the employee. It does not detract one bit from what I have said about the employee being entitled to a more senior companion or representative at the next layer up. We should regard the matter in that context.
6.45 p.m.
Lord Gladwin of Clee: I am grateful to my noble and learned friend. I shall study Hansard with great care in relation to Amendment No. 121A.
So far as Amendment No. 121 is concerned, I should understand it if the Minister said the amendment was inoperable and did not work; he would not say that it was rubbish but he might say that it was not proper to go into a piece of legislation. However—I say this with due humility—we should be missing a trick if my point is not taken. We need to consider the effect of going from nothing to this for many workplaces. The Minister talked about the corner shop. I am not really thinking about the corner shop; I am thinking about the IT company which may have a contract of employment but that is all. People will ask the employer questions. I understand that that is now our statutory procedure, as it is called. It is not one that I would sign but it is called a "procedure".
But to whom do we write and what is the process? Can it be expanded? I should have thought that, one way or another, when the contract of employment is changed—as I understand it, this is an implied term in everyone's contract of employment—employers will want to know the answer. They will say, "Give me some guidance about how I am going to apply it in my workplace". As I hope we all know, a procedure which has the understanding, and hopefully the support, of the people in the workplace has a much greater chance of being effective than if it is simply introduced as an implied term of contract as the Government have done. There must be some kind of understanding. I beg leave to withdraw Amendment No. 121, but the department should give some thought as to how it will bridge that gap.
Amendment, by leave, withdrawn.
[Amendment No. 121A not moved.]
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