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Lord Gladwin of Clee: I intervene before my noble friend Lord Wedderburn of Charlton withdraws the amendment. I am confused. My understanding was that the meeting referred to in Chapter 1, paragraph 3(4) and (5), in paragraph 5(4) and in paragraph 7(3) and paragraph 8(4)—indeed all references to "meeting"—
Lord Gladwin of Clee: No, let me try and get around my own confusion. Am I correct in my understanding that in respect of everything that could result in the employee being disciplined or dismissed—which can happen with a grievance—he has the right to be accompanied? If the answer is yes, at every reference to "the appeal meeting", he is entitled under the Bill to be accompanied, whether by a junior or senior representative.
Lord Falconer of Thoroton: The answer is yes.
Lord Gladwin of Clee: Thank you very much.
Lord Wedderburn of Charlton: My noble and learned friend says, "Yes". Therefore, if he is not to be subject to dismissal, there will not be a right of accompaniment. Have I misunderstood my noble and learned friend? He does not want to continue this debate at the present stage. I give way to my noble friend.
Lord McCarthy : I am not quite certain how a dismissal arises out of a grievance. Let us suppose that the employee has a grievance and is being discriminated against, or is being abused, or he is not getting the right pay, or whatever. How does it come about that he gets dismissed, let alone instantly dismissed?
Lord Wedderburn of Charlton: My noble friend Lord McCarthy asks a good question. It is not for me to answer that. My noble and learned friend Lord Falconer of Thoroton said, "Yes", but we will read Hansard. Our intention was to take the law as it is on the right to accompaniment, and say, "That applies to all the meetings in Schedule 2, just as it applies to all the hearings in Sections 10 to 13", as my noble and learned friend would prefer. Perhaps we should have excluded Section 13(5), I do not know. We will look at that again. We will both have to look at what is taking place.
My noble and learned friend will also have to take away this issue—and I have to admit this arises from what he said, not from what I thought of previously—
that perhaps the Government will have to define more clearly what they mean by "grievance procedures" in the Bill because that has come out of our discussion.Discussion is always useful; new points arise unexpectedly to both sides. The best thing we can do is see what the Government want to do. I hope that they will give us good notice of it because there are many people to be consulted on both sides about it. Given that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 123 not moved.]
Lord Wedderburn of Charlton moved Amendment No. 124:
- Page 66, line 19, at end insert—
The noble Lord said: If I may just recover from the excitement of the previous discussion!
We do not like Schedule 2 but we do not want to leave it as uncertain as it is, so we thought we would try and help the Government by clearing up some of the definition problems. We address three points in this amendment. First, in several places in Schedule 2, things have to be done "in writing". The definition that I could find—there may be a more modern one but the definition of what is "in writing"—is in Schedule 1 of the Interpretation Act 1978. That includes,
The second point raised by the amendment relates to this question of sending things from one party to the other. This is another example of the drafters of the Bill thinking you can just put forward a formula—the following apply. The employee is going to be prevented from going to a tribunal at all where he has not sent a copy to the employer. This is, therefore, a matter of the greatest importance. It involves whether the employee is denied access to the fount of justice in the tribunal. In our submission, where a party says, expressly, that he has sent a copy of a written communication to another party, the presumption must be that he has done so. This would have the very important effect that where an employee sends a communication to an employment tribunal and says that he has sent a copy or a communication to the employer, the tribunal will have to assume that he has done so. Therefore, his complaint can be presented to the tribunal and he will have overcome the hurdle of completing that step in the procedure.
Of course, should it be proved that this is a lie, the tribunal would no doubt resile. It may be said, "Why should you wait until then?" My answer to that is: because the Minister in another place said that we could wait until then. The Minister in another place, in addressing Clause 33, said that one would know whether a person was prohibited from applying to a tribunal with a complaint by the time one had seen, first, the originating application—I am not sure that he used those words but that is what he meant—and, secondly, if one did not get it from that, one would know when one saw the notice of appearance or the reply by the respondent's employer. Therefore, the whole procedure will take in the process of going to the tribunal and the employer's response.
A party may say, "I have sent a copy of a communication". I believe that our amendment is defective in its drafting there. It occurs to me that it should state—I hope the Minister will accept it in this spirit—"where a party expressly states that he has sent a communication, or a copy of it, to another party it should be presumed that he has done so". The amendment was drafted late at night.
Thirdly, there is the question of the ACAS code which is addressed by the amendment. It is not absolutely clear that there would be an obligation on the employment tribunal and appellate courts to consider ACAS codes of practice in respect of this schedule. Of course, one might say that there is already a general consideration in the law that they can do so. But, in our submission, it would be particularly important to direct the mind of the tribunal and of appellate courts to anything that ACAS says about this very important process, especially in relation to Clause 33 but also Clause 31, under which workers can suffer a penalty for not complying with their obligations in respect of the procedures in Schedule 2, and also in regard to other clauses in the Bill, not least Clause 34 and the like.
As we are introducing these minimum procedures on a statutory basis for implication into the contract of employment for the first time, it would, in our submission, be most important to ensure that anything that ACAS says about its application is taken into account by a tribunal and then by its appellate courts.
On that basis, I hope that the Government can accept the spirit of the three points in Amendment No. 124. I beg to move.
"typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form".
That seemed to leave out e-mail. I could not find any authority on e-mail. If the noble and learned Lord has it, we shall all be instructed. We thought that the definition must be extended to include electronic communication. A large number of workers have access to e-mail, even if they do not have it in the House and, of course, most employers these days—in a year or two, by the time this legislation comes into effect—will have access to electronic communication if they do not have it already. So we tried to find—or rather, I have to admit, I tried to find—a definition that would apply to electronic communications. With the limited resources at my disposal, I only found Section 15 of the Electronic Communications Act 2000. That defines electronic communication in a way that seems to me to be satisfactory from the point of view of this Bill. However, there is a problem. The problem is that it may be that that section is not yet in effect. The regulations that I could find bringing the Act into effect did not seem to include Section 15. If that is so, my submission would be that it is still possible to refer, for definition purposes, to a section that is on the statute book, even if it is not in effect. I think that there is some authority on that. It may be that my noble and learned friend has better sources for
definition—if he has, we will all be delighted. But some definition is surely required because there is otherwise going to be a dispute about what counts as writing.
7.15 p.m.
Lord Falconer of Thoroton: The amendment deals with three separate issues. Paragraph (1) provides a means of defining what is meant by a communication "in writing". As ever, I do not believe that there is a disagreement between my noble friend and myself as to what we are trying to achieve. A number of different technologies can be employed when writing a text and when sending that text to others. We do not want to stop people using e-mail and other electronic forms of communication.
However, in drafting the schedule, we have tried to avoid legalistic wording wherever possible in the drafting of the procedures. That will ensure that the procedures are readily understood by employers and employees alike. Paragraph (1) is very legalistic and would not be easily understood by many employers or employees. Therefore, I am reluctant to introduce such wording into the schedule, although I share the basic aim of the amendment. We have scope to go into this level of detail in the regulations which will accompany the procedures, and we shall take into account the suggestions made in the amendment when considering how those regulations could be drafted.
Paragraph (2) deals with a situation where a party disputes whether whether written communications were sent by the other party. Such circumstances may arise in practice, not least when post gets lost. This part of the amendment tries to cut through such disagreement by stating that the sender is always right if he asserts that the relevant communication was sent.
In practice, it will be difficult for tribunals to come to any other conclusion unless there are good grounds to believe that the communication was not sent. In most cases, it would be very difficult for a party to prove that a communication was never sent, especially if a dated copy was retained by the sender. So any disputes on these points would not detain the tribunals for long. However, there may be some cases in which such evidence exists. We should not discount the existence of that possibility by introducing this rule of thumb. If we did so, we would be in a situation in which we would be rewarding a person who was telling an untruth about the sending of the letter, irrespective of the facts. That would not have a good effect on the procedures; it would bring them into disrepute.
Finally, point three involves a cross-reference to the role of any relevant ACAS code when interpreting the schedule. I have already covered this point in my comments on Amendment No. 104. The ACAS code of practice on disciplinary and grievance procedures would, of course, be relevant to the use of the statutory
procedures. The code represents good practice and the Government fully support it. The only question is whether a specific reference to the code is necessary in the statute. I am confident that it is not: any employer wishing to ensure that he acts fairly when following procedures that may result in the dismissal of an employee will need to take the code into account, just as he needs to a present.
In light of that explanation, I hope that my noble friend will feel able to withdraw his amendment.
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