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Lord McCarthy: I want to raise one point with the Minister. He intervened during my noble friend's comments and said, if I have this right, that he believed that there could be procedures which could not be worse. He was then asked to give an example and he said he did not say that. Hansard will tell us what he said.
However, I believe that the real question is whether the Minister can cite a procedure which would be inconsistent with the statutory procedures. I cannot think of one. If he cannot think of a procedure which is inconsistent, then the phrase means nothing.
Lord Falconer of Thoroton: One example would be not having to send a letter. This argument, which is absolutely riveting, has been on the issue of whether we should use the words "not inconsistent with" or "not less favourable to the employee". It is an important argument on which time should be spent, and both sides know what the issues are.
Lord McCarthy: Perhaps I may withdraw the amendment and say a few words. I do not mind the Minister saying that the amendments lack clarity; I do not mind him saying that they are subjective; and I do not mind him saying that they are designed to help
employees—of course, they are. However, at one stage he said that they were in fact doing the same thing. That is just nonsense. The fact is that we want a lot more put in. Most people would accept—I think the Minister would accept this—for example, that to have different stages in a procedure is a significant change and that to have specification of the use of a suspension is an additional change. That is why the CBI does not want these things included.We may not be clear and we may not be objective, but we are different. To say that what we want put on the face of the Bill is the same as what the Government have done is not only inconsistent with saying that we are trying to benefit employees but is also complete nonsense. I do not mind the Minister saying we are silly but he should not say we are the same. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 127 not moved.]
Baroness Turner of Camden moved Amendment No. 128:
- Page 35, line 34, at end insert—
The noble Baroness said: I beg to move Amendment No. 128 which is on a rather similar point. Clause 30, which we are now discussing, says in subsection (1) that:
The object of the amendment is to make sure that an employee shall be told of his obligations as regards the relevant procedure and also as regards any procedures that have been freely negotiated and accepted by both sides in the particular enterprise concerned.
I hope the Government will agree that this is quite obviously a necessary amendment. If people are going to accept obligations, they must know what those obligations are and they must have those obligations in writing. It seems to me it would be entirely legitimate for the Bill to require the employer to explain that matter to the employee. I hope the Minister will be prepared to accept the amendment. I beg to move.
Baroness Miller of Hendon: Before the Minister responds, may I say that I do not think this is a sensible amendment; in fact, I totally oppose it? This would put a huge burden on small businesses. There are many small businesses employing people—in fact, most businesses are small businesses. I read very carefully what the amendment says. It says that the employer will explain in writing the effect of this matter. However, there will be many cases where the employer himself may not understand it very well. There used to be a concept that everybody understood what the law meant, or was presumed to know what the law meant.
If this measure is absolutely necessary, then I am sure ACAS must have a budget to deal with it. Posters or leaflets could be placed in employment offices and so on. However, it is absolutely ludicrous to say that the burden should fall upon the employer.
Lord Falconer of Thoroton: I am on the side of my noble friend Lady Turner in this. My only problem in relation to the amendment is that it is unnecessary because the obligation already exists.
The noble Baroness's Amendment No. 128 seeks to impose a requirement on employers to inform employees about the existence of the statutory procedures or of their contractual procedures where they are
Clause 30 ensures that the statutory procedures will be incorporated into contracts as an implied term where employers do not already operate more elaborate procedures. This means that all employers and all employees will henceforward have disciplinary and grievance procedures. By the same token, employers will therefore be required to inform all employees about these procedures in the note in the written statement. We have thereby ensured that employees will be made aware of the application of the
Lord Wedderburn of Charlton: I wonder whether my noble and learned friend Lord Falconer of Thoroton would pause for a moment on Section 3 of the Employment Rights Act 1996 on which he relies. Section 3(1)(a) says that the employer shall include in what he gives the employee a note,
I hesitate to complicate my noble and learned friend's notes but this matter relates also to Amendment No. 192. I wonder whether he will be resisting our Amendment No. 192 because that says that the employer must set out an explanation of the relevant statutory procedures. If my noble and learned friend does not want to comment on it now, we will come to it, but it links up.
As the Minister said before, this is a very important introduction, a novel legal introduction, into the contract of employment and into the employment relationship. We wonder whether it is sufficient that the employer should be allowed simply to refer to the provisions of the 2002 Act which is reasonably accessible to the employee. He does not want to be what he calls "legal" or "legalistic", but the employee has to go off and read the Act, and look at Schedule 2 if that is what the note says.
I do not think that is sufficient. It is certainly not true to say that what we say in this amendment is the equivalent of Section 3. We have very carefully not adopted the option of Section 3 of just referring to any other document that the employee then has to go off and read.
I am sure that my noble and learned friend will agree that this amendment is not the same as Section 3, and perhaps would at any rate give it a little further consideration.
"( ) The employer shall explain to the employee in writing the effect of the requirement imposed by any relevant procedure under subsection (1) and the obligation of the employee shall be limited to an obligation to comply with the requirements of either—
(a) the relevant statutory procedures, or
(b) the relevant statutory procedures as explained to him in writing by his employer where that explanation describes steps more beneficial to, or less onerous upon, the employee."
"Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure.
If obligations are imposed upon an employee, the employee should really be informed about them. One of the reasons for the amendment is that we want the employer to explain in writing to the employee—I stress the words "in writing"—
"the effect of the requirement imposed by any relevant procedure under subsection (1) and the obligation of the employee shall be limited to an obligation to comply with the requirements of either—
(a) the relevant statutory procedures, or"—
and then we go a little further and say—
"(b) the relevant statutory procedures as explained to him in writing by his employer where that explanation describes steps more beneficial to, or less onerous upon, the employee".
In other words, we accept that there are many instances—and people have written to me about this—where existing procedures are actually better and more beneficial to an employee. A number of people have written to say that they have read about the new Bill but that they are rather better off as they are.
"more beneficial to, or less onerous upon, the employee".
Put aside the fact that we might have a complaint about the uncertainty of the last bit of that phrase, as occurred with Amendment No. 127. As I say, the principle is right but the measure is unnecessary. Under Section 3 of the Employment Rights Act 1996, employers must include details of their disciplinary and grievance procedures, where they are operated, in the "note" included in the statement of employment particulars. Clause 36 of this Bill removes the existing small firms exemption in Section 3—so it will apply to employers of all sizes.
"specifying any disciplinary rules applicable to the employee"—
that was the bit that I understood my noble and learned friend to rely upon—
"or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee".
So the employer does not actually have to set out the disciplinary rules. His note can say, "You are governed by Schedule 2 of the Employment Act 2002". In fact, many notes do refer to other documents. For example, they refer to works' rules and very frequently they refer to procedures which are in other documents.
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