| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Rotherwick: I do not wish to push this too far but the precedent has already been set. The noble Lord, Lord McIntosh, brought the proceedings to a halt at an earlier point in order to go down to the Chamber for a Statement. So this has already happened. It was convenient for the government side
to bring a halt to these proceedings. However, when we wish to do similar, it is not perceived as convenient. I would just make that point.
The Deputy Chairman of Committees: Anyone can move to adjourn the Committee but, just as an amendment, that Motion cannot be voted on and can be agreed only if totally unopposed. Some noble Lords could leave and the quorum of a Committee is three. Therefore, if three noble Lords are still here, including the Chairman, the Committee can carry on, but obviously those who leave the Committee will miss their amendments.
Lord McCarthy: Of course, the business in the Chamber has to be suspended to hear a Statement; otherwise, the Statement could not be heard. The Chamber does not have an option. However, we have an option. The fact that we accepted what I considered a rather bad precedent when we adjourned the Committee the other day does not mean to say that it should be set in stone. I believe that we should continue with the Bill. If we do so, perhaps we shall finish the Committee stage in the two days that have been allocated next week.
The Deputy Chairman of Committees: Let us see what happens when we come to it. I have explained the position and it is up to the Committee to decide what to do.
Schedule 2 [Statutory dispute resolution procedures]:
Lord Wedderburn of Charlton moved Amendment No. 124A:
- Page 66, line 19, at end insert—
14 Nothing in the provisions contained in this Schedule shall affect the operation of section 98 of the Employment Rights Act 1996 (c. 18) (general)."
The noble Lord said: I only say that I am sorry we see this matter differently from Members opposite but we must push on.
Amendment No. 124A is virtually undeniable in its wisdom because it rests upon the statement of my noble and learned friend yesterday when he said in relation to Schedule 2,
If my noble and learned friend is saying that everybody who has formed such a doubt is so wrong-headed that, if they pleaded such a point, it would be struck out, he takes upon himself a very high burden of proof. I repeat, if they ever mention such a point in pleadings, they will be struck out. Then, of course, there is no reason to insert a provision which, in one sense, is no more than a provision for the avoidance of doubt. If, however, he does not take that burden upon himself, if he is saying that everybody else is so wrong-headed that they would be, as it were, struck out, and if he accepts that it is possible that he may be wrong at the margins at least and that there could be a possible doubt about the matter, it is in the interests of the principles that he pressed upon us so strongly earlier in relation to Schedule 2—namely, the principles of certainty and clarity and of leaving nothing to be litigated that could be avoided—he should at least consider the wisdom of the amendment. It says what he said; that is, that nothing in Schedule 2 is to affect the principles of reasonableness of cases that go to a tribunal hearing.
Of course, we pointed out to the Minister that Schedule 2 is part of the apparatus that may stop cases getting to a tribunal hearing, but he did not like our arguments on that point and insisted that that was so. The amendment accepts what he said and it would build what he said into the Bill—it does no more and no less than that. I hope that my noble and learned friend will therefore accept it. I beg to move.
Baroness Turner of Camden: I rise to support my noble friend—the amendment also appears in my name. It would be to the benefit of everybody, in a sense, if Section 98, which is clearly headed "Fairness" in the Employment Rights Act 1996, was restated in this Bill.
On a number of occasions during discussion of the Bill, we have said that there is a widespread view which repeatedly appears in the press and often from people who are normally very well informed. That widespread view is that this section and these parts of the Bill are intended to be obstacles to workers who seek to enforce their rights.
The Minister has informed us on a number of occasions that that is not so—that that is not the Government's intention. One way of asserting that it is not would be to refer to the relevant part of the Employment Rights Act 1996, which sets out very clearly the reasons that are regarded as fair and which an employer has to show before an employee can be dismissed. Section 98 states that a reason falls within its provisions,
"The statutory procedures seek to set out a minimum requirement that employers (in relation to dismissal) and employees (in relation to grievance) have to go through. It is not intended to affect in any way at all the principles that govern reasonableness".—[Official Report, 20/03/02; col. CWH 201.]
It may be that it is not intended to affect them, but there is a widespread doubt shared by a large number of people, including people very experienced in the law to be applied in employment tribunals, that there could be some effect upon the principles as to unfair dismissal and reasonableness which we have tried to summarise by referring to Section 98 of the Employment Rights Act 1996. I could give the Committee many examples of communications but my noble and learned friend may know that we have received a large number of communications which express this worry, let us say.
"if it ... relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do",
or if it,
"relates to the conduct of the employee ... is that the employee was redundant, or ... is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment".
That is a very clear statement, which is headed "Fairness". Our amendment would also import the word "fairness" into the Bill. It would be a good idea if the Government were to think seriously about accepting this amendment.
4.15 p.m.
The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton): The amendment seeks to ensure that the statutory procedures have no effect on the operation of Section 98 of the Employment Rights Act 1996, as my noble friend Lord Wedderburn has said. That section sets out the general tests to be applied by a tribunal in determining whether an employee has been unfairly dismissed.
As has been stated on a number of occasions in the course of the passage of the Bill, the inter-relationship between the statutory procedures and unfair dismissal is covered explicitly in Clause 34. There is no need to go over the same ground in relation to the schedule. That would unnecessarily complicate the procedures and introduce inappropriate legal language into the procedures which, as I have said on a number of occasions already, the language seeks to avoid—it tries to be clear.
The amendment is also unacceptable in another sense because it confuses the effect of Clause 34. It seems to ignore the fact that Clause 34 in fact introduces significant changes to unfair dismissal law relating to the statutory procedures that favour the employee. In particular, the clause makes it automatically unfair for an employer to dismiss an employee if the relevant statutory procedure has not been followed. It is an important change, as has been acknowledged. It is brought about by introducing new Section 98A into the Employment Rights Act 1996. The proposed new section in the amendment makes a cross-reference to existing Section 98, but ignores new Section 98A altogether.
The amendment is unnecessary because, in direct response to the point made by my noble friend Lord Wedderburn of Charlton, the statute is sufficiently clear to deal with all the points that he made. It would make it more difficult to understand the schedule and it would make the law more complicated, as would many of the amendments that have been suggested by my noble friend. It would create confusion about the effects of Clause 34 and it could possibly undermine the additional protections given to employees by new Section 98A.
I hope that in the light of my remarks, the noble Lord will feel able to withdraw his amendment.
Lord McCarthy: I intervene to make it clear that the amendment does not appear with my name is because they did not put it on. It is not that I do not agree with it in any way.
I turn to the comments of the noble and learned Lord, Lord Falconer of Thoroton, on a very modest little amendment. That amendment sought to put on to the face of the Bill that there should be an
investigation to establish the facts. We were, therefore, gratified when the Minister of State, though turning down our amendment, made this very generous statement:
- "The statutory procedures seek to set out a minimum requirement that employers (in relation to dismissal) and employees (in relation to grievance) have to go through. It is not intended to affect in any way at all the principles that govern reasonableness. As I made clear on Monday afternoon, if there is not an investigation, in virtually every case, the test would make the business unfair".—[Official Report, 20/3/02; col. CWH 201.]
Our amendment seeks this time to build on what the Minister has actually said. I do not believe that anyone would find it confusing; they would learn from it what they might not be certain of if they simply read the Bill; that is, that you could not use the minimum procedure in order to get round the way that the criteria between fairness and unfairness and reasonableness, and so on, had been built up on the basis of the other Employment Rights Act and the decisions of tribunals. I do not see any way that anybody would be confused if the very words of the Minister were in effect included as the basis of this statement.
Next Section
Back to Table of Contents
Lords Hansard Home Page