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Lord Wedderburn of Charlton moved Amendment No. 122:
- Page 66, line 19, at end insert—
The noble Lord said: I can move this amendment in a very short compass or a medium compass—I would not dream of having a long compass. If the Minister indicates to me that the Government are prepared to accept the amendment, subject to wording, I can be very brief. He does not do so. Perhaps I may explain why we have tabled the amendment.
Lord Falconer of Thoroton: Perhaps I can be of some assistance. We have agreed to give further consideration to the case to incorporate into the statutory procedures some reference to the right to be accompanied. If we go down that path, I shall bear in mind whether we can simultaneously tackle the technical point raised by my noble friend in the amendment. On the basis of that, I earnestly suggest to my noble friend that he takes his short route. If it is too short, he can obviously return, as he has done boldly throughout the course of our debates, when he has heard my full reply.
Lord Wedderburn of Charlton: I am very grateful to my noble and learned friend. At least it allows me to approach the amendment on the basis of it being medium-rare. I must explain what we want so that the Government can consider it and decide whether it is what they want.
We want Section 10 of the Employment Relations Act 1999, and therefore Section 11 with it, to apply to what are called "meetings" in Schedule 2. If that were the case, the worker would have a statutory right to be accompanied by the union official of his choice at what are now called these "meetings". We have not tried to alter the words in the schedule, although logically I hope that the Government will do so.
In another place the Minister insisted that the word "meeting" in the schedule was the same as "hearing". I have always had a problem with that because the word "meeting" does not happen to be the same as the word "hearing". When he was asked why that was so, with the greatest respect I could not find any other reason than the Minister saying, "Because I say so". He wanted the words to be the same in law. Of course, courts have a habit of seeing the use of two different words and saying, "Perhaps you mean something different".
Therefore, we considered that the best way to represent what the Minister in another place stated that he wanted—namely, that workers should have the right to be accompanied within the compass of Section 10; I insist that we are not moving an extension or change to Section 10—was to say that the Section 10 right should apply to those meetings on the basis that they cannot constitute hearings within the meaning of the section.
I believe that my explanation is short enough—and medium enough—for the Minister to tell me whether I am wrong on any point. I hope that that is the way in which the Government will consider the matter. I beg to move.
Lord Falconer of Thoroton: The way my noble friend put it is very helpful. We both wish the right to apply to meetings held under the statutory procedures in exactly the same way as it applies now to similar encounters under existing disciplinary and grievance procedures. That is our aim. We both have the same aim. The issue is whether the drafting of the schedule as it stands prevents or threatens the achievement of this objective.
My noble friend and others, as he has just expressed, have concerns about the wording used in the statutory procedures. As he has made clear, he thinks that the use of the word "meeting" in the statutory procedures may unintentionally limit the right for employees to be accompanied at such meetings. He points out quite rightly that the sections of the Employment Relations Act 1999 which provide for the right to be accompanied use the word "hearing" and not the word "meeting".
The question is whether the use of these different words creates a real difficulty. Our legal advice is that there is no problem. The context in which the two terms are used is clearly the same here. Both pieces of legislation deal with disciplinary and grievance procedures. We are advised that the two words in this context are synonymous. A hearing cannot be interpreted as a higher level of encounter than a meeting. There is no genuine danger that the tribunals or the courts will place other interpretations on the schedule.
My noble friend might argue that his amendment should be seen as a guarantee against mishaps or perverse judgments. What is the drawback, he might say—and indeed has said—of making the point explicit in the statutory procedures to remove all doubt?
There are drawbacks. His amendment would lengthen the procedures and make them more complicated for the non-lawyer to understand. As it happens, the procedures currently make no reference to any statute. Every word can be readily understood without consulting a dictionary or asking a lawyer's advice. If we accepted this amendment, this accessibility would be diminished. Some employers or employees would feel obliged to seek professional guidance as a result. Costs could be incurred; time could be lost.
Also, the amendment would ensure that the right to be accompanied would apply to every meeting under the statutory procedures. Section 13(5) of the Employment Relations Act 1999 in fact qualifies the circumstances under which the right applies in relation to grievance hearings. It makes it clear that the right does not apply to such hearings where no breach of a duty by the employer to the employee is involved. My noble friend's amendment makes no reference to this section. It would therefore mean that the right would apply to meetings under the statutory procedure for
With these thoughts in mind, we cannot accept this amendment. However, the Government have agreed to give further consideration to the case to incorporate into the statutory procedures some reference to the right to be accompanied. If we go down that path, I will bear in mind whether we can simultaneously tackle the technical point raised by my noble friend in this amendment. I have absolutely no doubt that we are both trying to reach precisely the same destination.
Lord Wedderburn of Charlton: I am very grateful to my noble and learned friend for what he said, but partly because it does exhibit the misguided way in which, in some respects, the Government are approaching this. First of all, I am not concerned primarily with non-lawyers. I say with the greatest respect to the lay members of the employment appeal tribunal that in this respect they count as lawyers. I am concerned with courts and I am concerned with what the schedule means in law. As it stands, it does not obviously, implicitly, incorporate Section 10. As it stands in the Bill, it manifestly does not. Someone will be instructed, and properly instructed, on a high fee to argue that the Act does not contain a right to be accompanied. I wonder whether my noble and learned friend would guarantee that he would not win. It will be touch and go whether the court would be bold enough to write words into the statute to provide for a right to be accompanied.
With the greatest respect, our amendment does not need to refer to Section 13. I do not know where my noble and learned friend had that idea from. It refers to Section 10, which incorporates Sections 12 and 13. There is no problem about that in statutory interpretation. Section 13 is an interpretation section for Section 10. My noble and learned friend would have been quick to take that point against me had I mentioned Section 13. One cannot win sometimes with this sort of voice.
It says that Section 10 will be read such that a meeting in this schedule constitutes a hearing. My noble and learned friend says, "Aha!"—Members of the Committee will understand that I had many years of dealing with difficult students—"you have missed Section 13(5) which limits a grievance hearing to one that does not concern the performance of a duty by an employer in relation to the worker". I assure the Minister I have not missed Section 13(5) at all.
Lord Falconer of Thoroton: Sorry!
Lord Wedderburn of Charlton: The Minister is absolutely right to take the point. He must take any point that he feels he is capable of taking. However, it raises another question. We understand that grievance meetings in Schedule 2 will mean something different from what is contained in Section 13, do we? Is the
That raises an entirely new point which, I was about to say, was not discussed in another place. With the greatest respect to another place, scarcely anything was discussed in another place. It raises the issue of whether the Government will extend the right to be accompanied to cases of grievance meetings that are not grievance hearings within Section 13.
The noble and learned Lord will not know and other Members of the Committee may not know that the right to be accompanied has been treated with the greatest concern by all trade unions, by the TUC and by many employers. As my noble friend Lord Gladwin of Clee said about the procedures, what really matters is what happens on the day at the actual place of work. People want to know whether they can take a union official with them. Their job and their rights are at stake.
There are very few concrete examples given by the Government. That is what I do not like about their case. It is all formulae. Let us take a case of a worker who says, "You have unfairly excluded me from the overtime list."— overtime matters a lot these days—"You are not giving me any overtime. That's my grievance, and I want to be accompanied by a union official.".
In the light of what my noble and learned friend has said, the first reply is, "Ah, that is not caught by Section 13(5) because I do not have a duty in regard to overtime in respect of you.". On the other hand, I would remind my noble and learned friend that as long ago as 1972 in the Langston case—it is rare that I cite the National Industrial Relations Court—the noble and learned Lord, Lord Donaldson, or Sir John Donaldson as he then was, averted that there was a duty to act fairly on overtime.
Are we dealing with a grievance meeting or hearing to which the worker can take his union representative? It matters an awful lot to him whether he can or not. We really ought to clear this up and if my noble and learned friend is saying that the Government want to put aside Section 13(5) for grievance meetings, then they certainly have to include that in the Bill. Surely they do not want more legislation changed by regulation, so the Minister had better clear that up when he is considering the matter again.
I appreciate the crumbs that I have been offered and I willingly take them in the sense that we want the same thing—although I am not sure we do want the same thing now! I do not know about grievance hearings. My noble and learned friend Lord Falconer of Thoroton clutches his head. He says we want the same thing and then he says that grievance meetings may or may not include grievance hearings which are excluded by Section 13(5). I do not know where I am with that.
I moved a very modest amendment; simply, that Section 10 should apply to hearings as it applies to meetings, and to meetings as it applies to hearings. If the Government want to go further than that in their reconsideration, let them do so. I believe the best thing for me to do is to leave the Committee and the Government with the amendment. It is perhaps most fundamental—
"( ) In this Schedule, a meeting shall constitute a hearing within the meaning of section 10 of the Employment Relations Act 1999 (c. 26) (right to be accompanied).".
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