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Lord Wedderburn of Charlton moved Amendment No. 132:
- Page 36, line 17, at end insert—
The noble Lord said: We now come to Clause 31, which raises the question of the non-completion of statutory procedures with the sanction of the adjustment of awards of compensation if an employee does not complete the steps that he is obliged to take. This is a simple little amendment that addresses problems that occur in real life. The employee may not have sent a letter because he was ill. Yet he may have been treated outrageously and deserve a case and a remedy in the tribunal. His family may have been ill. His wife may have left him. His wife may have come back and caused equal problems! All sorts of difficulties may arise in life and the worker may find himself in a situation in which it is just and equitable to say that he can be forgiven for not taking the bureaucratic step that is required of him before he has access to the portals of judgment in an employment tribunal and before his award is then to be cut down under Clause 31.
The amendment simply states, if it appears to an employment tribunal just and equitable, a failure to take the step that is necessary after the date of termination of his contract of employment is not to be regarded as attributable to a failure on his part. He may have lost his job, his contract of employment may be terminated, he may be in family difficulties or suffering other problems of a real kind that are personal. Although he has a remedy, he can suffer massive cuts in the compensation that is his due. This is a simple little amendment to give the tribunal a discretion. Tribunals are very good at exercising discretion. Employers do not, I think, complain—this is rather important in terms of the opposition to some of our amendments. Employers complain that too many cases get to tribunals. We have already suggested that the statistics on that do not bear out any rational case. But as I understand it, employers have not complained overall about the exercise of discretion by tribunals—at any rate, not in the more sensible
If my noble and learned friend says we have got the words wrong in the amendment, or it does not quite apply in the right area, then no doubt he will take it away and look at it. We desperately await the words, "We'll take this away and look at it". We do not hear them very often. I hope we will not get a stony refusal to the spirit of this amendment. I beg to move.
Baroness Miller of Hendon: With some diffidence, I rise to support the noble Lord in his amendment. I rise with some diffidence because I have noticed that when I support amendments from the Opposition side, they do not get very far. On the other hand, when I oppose the amendments that come from that side, it seems that the Government then agree with them. I therefore feel somewhat diffident in supporting the noble Lord's amendment, but I very much do so.
Lord McCarthy: I merely want to say that this is the beginning of a whole series of attempts to mitigate the consequences, as we see it, of the non-completion of the statutory procedure. The Government may well decide that they do not like this attempt, but there are many more. This is one of a series of amendments which are all designed in some way or another to mitigate the full consequences for workers of the non-completion of the statutory procedures, some affecting dispute procedures and some affecting grievances.
It may well be that the Government want to say, for the usual set reasons, that they cannot accept this amendment. However, I hope they will not take an equally obscurantist, tough and, as my noble friend says, stone-like defence to all the attempts. There is, after all, a statement or two from the Minister in another place, in which he says he will tell us about all kinds of cases where people will not be involved and where they will not have to complete the procedure or, if they do not proceed to apply part of the procedure, they may find their way to the tribunal. There is therefore some escape and one of the ways of escape is to accept this amendment. I hope the Government will give us the right answer.
Lord Falconer of Thoroton: Clause 31 is designed to encourage the parties to an employment-related dispute to use the statutory procedures set out in Schedule 2. It does so, as my noble friend has indicated, by providing for any award made to be adjusted where an employer or employee does not use them.
This is not about deterring claims from going to tribunals but merely about ensuring that parties use in-house procedures first, so making complaint to a tribunal unnecessary where the dispute is resolved satisfactorily. Surely, that must be sensible for all concerned—after all, few people relish appearing at a tribunal.
There will inevitably have to be some exceptions to the proposition that statutory procedures will have to be used and completed. Members of the Committee
However, with these limited exceptions, employees and former employees will be expected to have used the statutory procedures or else be subject to the adjustment provisions. Therefore, someone who has been dismissed will normally be expected to have complied with and completed the appropriate procedure, as instigated by his employer, whether full or modified, which applies in his particular case. Regulations made under Clause 31(5) will specify the circumstances in which the procedures contained in Schedule 2 will apply. For example, it was said in the other place that we envisage that the modified procedure will apply to former employees. Where the employer does not instigate the procedure or does not follow it, the employee will normally have his award adjusted upwards.
Because we wish to encourage as wide a use of the procedures as possible, I cannot accept this amendment, which seeks to exclude former employees from having to comply further with the procedures, except where the tribunal determines otherwise.
Lord McCarthy: Have I got the Minister right? He has said something very similar to something which the Minister in another place said. He said that they were going to exclude certain categories. One of the categories was an allegation of harassment. I have no desire to say anything which would lead the Government to take an allegation of harassment out and say that it must be completed. However, there is a kind of inconsistency. The regulations do not appear on the face of the Bill, but anything based on them are general exclusions. But they are allegations; we do not know whether they are factual or not. Anybody can allege anything.
I could allege harassment and one might examine it and discover that I was not harassed at all and that I did all the harassing. It is an allegation. The Government are prepared to exclude allegations, but we are not talking about an allegation. We are saying in the amendment that there has been evidence. The tribunal comes to the view that in fact there is some case for considering the point. Why can the Government not accept it?
Lord Falconer of Thoroton: I have just been saying that that is the same question again.
Lord Wedderburn of Charlton: My noble and learned friend Lord Falconer of Thoroton feels he has answered that. Very well.
There are two real problems about my noble and learned friend's reply. The Secretary of State is going to make regulations that will tell us all about this. All
Let me be more clear. Where a statutory procedure is not completed before proceedings have begun, Clause 31 (2)(c) provides:
All this amendment asks for is that the employment tribunal should have another discretion in its favour. The words in the Bill are "just and equitable". This is a very modest amendment and applies only when the employee's contract of employment has been terminated. The poor man and woman are out there without work. They are unable to complete the first requirement of the procedure or perhaps to exercise their right of appeal, and the tribunal says, "Well, there were special circumstances here; it was just and equitable in our view that they should be relieved of that, and the words "wholly" or "mainly" attributable to the failure of that employee should be understood to include the discretion in such hard circumstances that they are not to be penalised".
I cannot for the life of me see what is unreasonable about that, and yet we are not even to have the matter reconsidered. There is no expression of sentiment for the worker in such a circumstance. It is as though I was debating this with Mr Balfour, not my Labour Government. I do not think that we would have received such a hard response to all these amendments in 1901. It really will not do to tell us that there is nothing in this point. I appreciate that my noble and learned friend hinted that he considered the amendment to be rather too narrowly drawn since it applies to cases after the date of termination of contract. We could look at that issue again. We could look at the whole wording again, but surely the spirit of it is reasonable. I am left with no alternative but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 133 had been withdrawn from the Marshalled List.]
"( ) The non-completion of a statutory procedure shall not be attributable to a failure by the employee by reason only that he fails to take a step at a time after the date of termination of his contract of employment, unless it appears to an employment tribunal just and equitable to determine otherwise."
6.15 p.m.
"the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee—
(i) to comply with a requirement of the procedure, or
(ii) to exercise a right of appeal under it
it [the tribunal] must, subject to subsection (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount ... up to 50 per cent".
It has a discretion, but only a discretion one way; it can make it worse and worse and worse for the employee who has not exercised all his rights of appeal or completed all the procedures. I will not repeat that we regard those as unfair; I take it to be an assumption in anybody's mind that our case is that these are unfair procedures in a variety of ways. They are also rather uncertain. Let us put that aside for the moment and carry that assumption. Furthermore, if the employee does not exercise all his rights of appeal, the employment tribunal has the discretion.
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