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Lord Wedderburn of Charlton moved Amendment No. 134:
- Page 37, line 3, leave out sub-paragraph (i).
The noble Lord said: This is a very simple amendment and it will become more clear when we reach Schedules 3 and 4. As the Bill stands under Clause 31, the list of jurisdictions—that is, the list of the type of case to which this penalty provision applies—is set out in Schedule 3. When we come to deal with Schedule 3, we shall want to test each and every case in that schedule against, first, justice, secondly, common sense and, thirdly, our European obligations. I can speak to that only when we come to Schedules 3 and 4, which are now grouped together.
This provision tells us that the Secretary of State can add any other jurisdiction to the list in the schedule. That is why it is a little difficult to debate this matter before we reach Schedules 3 and 4. However, in our view, Schedule 3 is sufficient. If the Government believe that they will introduce some other employment protection right to which their Schedule 2 procedures will apply, they had better tell us what they think that might be. That is not an unreasonable request. There are things on the horizon. If they introduce employment rights in respect of age discrimination, will they apply the procedures to that? If they introduce other European directives which are on the horizon and implement them, will this provision apply to those so that the Government can add all future employment rights jurisdictions to the list of penalties? No doubt they will add the provision to Schedule 4 as well in respect of prevention of access to justice in the employment tribunals.
Therefore, the amendment seeks to ensure that the Secretary of State does not have the power, by regulation, to add a jurisdiction to the list in the schedule. When some new employment right is created, at whatever level, the Secretary of State should come to Parliament and propose, subject to amendment, in full debate that he wishes to increase his vast powers in this respect.
This provision represents another example of the power by regulation or order to add, in Clause 31, to the disadvantages to workers. It may be said that it is possible that disadvantages will also arise for employers under Clause 31. Theoretically at least, that is true, and I would not favour the Secretary of State having power to add a jurisdiction to the list to disadvantage employers further either. That matter should be fully argued. At this stage of the introduction of the new procedures and all the uncertainties that go with them, I cannot see that new jurisdictions—new employment rights—should be added to a list by a regulation which, as a matter of reality, will not be discussed properly and, more importantly, will not be open to amendment. I beg to move.
Lord Rotherwick: As we have already heard, the amendment seeks to prevent the Secretary of State
adding other tribunals to the jurisdiction of the Act. As Members of the Committee know, we are opposed to the extent to which the Government constantly add to the amount of secondary legislation, as distinct from primary legislation. No doubt the Minister will justify the use of secondary legislation in adding to the already formidable list of tribunals in Section 3 by saying that it will assist if new tribunals are set up in the future by new legislation. However, it only requires a stroke of the draftsman's pen to say in the new Act that Clause 31 and Schedule 3 of the Employment Act 2002 will apply to this new Act. Therefore, on the principle that we wish to encourage more primary legislation and less secondary legislation, I must apologise at this stage to the noble Lord, Lord Wedderburn. As my noble friend Lady Miller of Hendon said, every time we support an amendment, the Government do not give way but when we disagree with one, they go away and think about it. Therefore, I apologise to the noble Lord, Lord Wedderburn: we are going to support this one.
Lord Falconer of Thoroton: As ever, the fatal hand of the Tories shrivels the amendment. The amendment seeks to remove the power to add jurisdictions. As it stands, as the noble Lord, Lord Wedderburn, has said, Schedule 3 contains the main jurisdictions under which tribunal claims arise. We would want to assess how this clause works in relation to those jurisdictions before deciding whether to add or remove jurisdictions. If difficulties arise with particular jurisdictions, we may wish to remove them. If a new jurisdiction—this involves the case referred to by the noble Lord, Lord Wedderburn—is given to tribunals, we may wish to consider adding it to Schedule 3.
I see no sense in removing the power to add jurisdictions, which may be eminently suitable for inclusion in Schedule 3, as the amendment seeks to do. That is why the power is there. What did the Delegated Powers Committee think of it? It thought that it was sensible and proportionate. Accordingly, I cannot accept the amendment and I invite the noble Lord to withdraw it.
Lord Wedderburn of Charlton: I am grateful to my noble and learned friend for explaining the Government's position but we have not sought to get rid of the Secretary of State's power to remove jurisdictions from the list. What we have objected to is the power by regulation or order to add jurisdictions to the list.
If I caught my noble and learned friend's words correctly, he said at some stage—I think that I am quoting—"We may wish to consider adding a jurisdiction". I have no objection to their wishing to consider it; what I object to is their being able to do so by regulation. They can consider what they like but I object to them having the power to do that by regulation. They should argue their case properly and bring it to the Floor of the House and let it be amended.
As a matter of fact, the amendment point is particularly strong in this regard because we shall have exceptions under any of these jurisdictions.
Harassment cases will be excluded perhaps not from all jurisdictions, perhaps in regard to sex discrimination cases, race discrimination and possibly unfair dismissal. We do not know; we have not seen the regulations, although now we have been assured in earlier sittings that we will all get 30 days' notice of them. We look forward to that. There are problems about certain jurisdictions under the Tax Credits Act. If a new Act is produced and jurisdiction is to be added to the list, it may be that there will be exceptions to cases under the new Act which are not to come within the purview of Clause 31 or, indeed, by parallel, the purview of Clause 33 and Schedule 4, which is a parallel case. So the case for regulation here is peculiarly weak. The case for saying, "We may wish to consider adding it", is peculiarly Tudor and peculiarly Henry VIII. It involves saying, "When I want to add, I shall add and you can't amend it. You can't move an amendment to my adding a jurisdiction to say that women workers who are harassed or other workers who are treated in a particular way do not fall within these penalties or this prohibition of access to justice".This is a serious point; it is a matter not just of machinery but of how governments ought to behave. Labour governments in the past have not always demanded vast powers of regulation in Bills that go way beyond what they say at the time that they are going to use. My noble and learned friend will not even take this amendment away; he just rejects it again. Our amendments are just rejected; they are not even to be considered further. We shall consider the matter further before Report and see whether it would be right to put to the House the issue of deciding whether it should have the competence to consider and amend the detail of a new jurisdiction—a new set of penalties—which will be put upon working people in regard to Clause 33. At the moment, there is nothing more I can do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Schedule 3 [Tribunal jurisdictions to which section 31 applies]:
Lord Wedderburn of Charlton moved Amendment No. 135:
- Page 66, leave out lines 22 to 26.
The noble Lord said: This is a somewhat complicated group of amendments. Amendments Nos. 135 to 141 are grouped—they concern Schedule 3. But Amendments Nos. 171 to 178 are grouped with them, and they concern Schedule 4. Unless I am mistaken, the same considerations arise in respect of both schedules, although they apply to slightly different parts of the Bill.
Schedule 3 applies by defining the jurisdictions, as we have just appreciated, to which Clause 31 is applicable; that is, cases in which compensation awards can be reduced—or, indeed, in some cases, increased—where there has been non-completion of statutory procedures. I interpose the remark—almost
a footnote, but it is important in relation to what has already passed—that in the case of the employee, it is said that he must exercise all his rights of appeal. The burden on the employer in Clause 31 is much smaller and his non-completion may be much smaller.On the other hand, Schedule 4 is of course the definition schedule for the scope of Clause 33. Clause 33 says that an employee shall not be allowed to present a complaint to an employment tribunal under a jurisdiction to which that section applies if he has not completed a requirement in the relevant statutory procedures. Schedule 4 defines the scope of the range of Clause 33.
These are very serious and central parts of the mechanisms of the Bill. To what may these penalties and prohibitions on access to justice apply? I preface my remarks by pointing out that if I had to choose, I should say that Schedule 4 was more important than Schedule 3 because Schedule 4 can give rise to a prohibition on access to justice. Schedule 3 is bad enough but at least it can only give rise to reductions or increases of penalties.
To what is this set of penalties and prohibitions to apply? I invite Members of the Committee to look at the list—it may be easier to look at page 66 of the Bill than at the amendments because the amendments have to refer to a page and line number in every case. We can see the list more easily on page 66. This is the range of employment protection rights—a list of modern protection rights—across the board. First, it refers to cases on equal pay. You can lose the right to go to the tribunal if you do not do what is required under that provision. I add that this is a place where the right of the employee—the equality clause—is introduced by the 1970 Act into the contract of employment. It is interesting that the Government have used the same formula in this case.
That is the first matter—equal pay cases. Secondly, I refer to the Sex Discrimination Act 1975 and to cases where, under Section 63, a complainant who alleges sex discrimination can go to the tribunal. A penalty could apply or they can be stopped under Schedule 4 and Clause 33. Yet we are now told that exceptions are going to be introduced. Therefore, anyone who looked at the Bill would be misled unless they looked also at the regulations that are coming on the exceptions. In a future amendment we shall be arguing—my noble friend will move the amendment, I think—that some indication should be given on the face of the Bill of the areas in which this schedule and Schedule 4 will not apply. The Government cannot just leave the matter to regulations. They must tell people that there will be areas where, as the Minister said in another place, the provision will not apply even if they want to put the precise detail into regulations. I refer to Section 54 of the Race Relations Act 1976 and discrimination on the grounds of race.
I now turn to something different—Section 146 of the 1992 Act. This is not simply a matter of a right to bring an action in a tribunal and to get compensation by reason of a breach of the section. That is another section which gives a person a right to be a member of
a trades union and a right to carry on trades union activities. This section deals with so-called detriment. Detriment, as I have said in a previous debate, is a polite name for victimisation. This is a case where a worker complains that he has been wrongly treated and deterred,
- "from being or seeking to become a member of an independent trade union",
- "from taking part in the activities of an independent trade union"
- "by reason of the imposition of a detriment".
I now turn to Section 8 of the Disability Discrimination Act 1995. A disabled worker who has been discriminated against has to complete his procedures. He has to send a little letter and say, "Oh dear, I've got a grievance," or, more importantly, "Oh dear, Mr Employer, you have discriminated against me in the employment field", otherwise he cannot go near a tribunal. It is an extraordinary list.
Section 23 of the Employment Rights Act 1996 is a little different. This concerns cases where the employer has not paid the proper wages and has made an unauthorised deduction, as the statute makes clear. We have moved an amendment to suggest that while on the Government's own logic they will make the employee engage in completion of necessary procedures for one deduction, where the case falls under subsection (3) of the section—which is the case where there have been several, or a series, as the section puts it, of deductions from wages—the worker should be allowed to go straight to the tribunal and should not be subject to penalty. That is a rather different amendment but we have considered each of these separately. On the Government's own logic, they may be able to say that Section 23 cases should come within the purview of their rules but, where there has been a series of wage deductions, it is surely not reasonable to make their rules apply in quite the same way.
Section 48 is a most astonishing inclusion. I have to deal carefully with Section 48 because we have moved an amendment that goes to its heart. Section 48 gives the employee the right to complain to an employment tribunal on the grounds that he suffered a detriment—victimisation—in contravention of Sections 44, 45, 46, 47, 47A or 47C of the Employment Rights Act 1996.
The list, in fact, under Section 48, is very long indeed, and these are victimisation cases. What are all those sections about?The fourth one is about health and safety. I am sorry if the noble Baroness opposite does not think I should explain this, but the Bill has all this detail buried away within it and it is necessary to bring it out and put it on the record. Section 44 concerns the case where an employee has been subjected to a detriment—he has been victimised—when he is a representative or other worker concerned with activities in connection with preventing or reducing risks to health and safety at work—a most important function. He comes along and says, "I've been victimised because I tried to enforce my right to see that the health and safety provisions were put into effect". He is made subject to the procedure and he is made subject to the possibility of penalty.
Section 45, which we deliberately did not cover in our amendment, is about betting workers and Sunday workers in shops. We thought that in that case there might be a possible reasonableness as regards making them take these steps. But Section 45A introduces even greater difficulties. It is concerned with the following. I quote from Section 45A of the Employment Rights Act 1996:
- "(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker—
- (a) refused ... to comply with a requirement which the employer imposed ... in contravention of the Working Time Regulations 1998".
I join my comments on that problem with the last one in the list on page 67 of Schedule 3 and page 68 of Schedule 4; that is, Regulation 32 of the Transnational Information and Consultation of Employees Regulations 1999. Again, this is a case of detriment where the worker has been victimised for pursuing rights under the European Works Councils Directive, which we have put into these regulations. Where the rights in these schedules rest upon European directives, it is more than doubtful whether the Government can be justified in subjecting them to special penalties and special prohibitions. Every directive requires that the nation state which is a member of the Union should implement the directives in its national system and provide appropriate and effective remedies for their breach—even more, one would be quite clear, effective and appropriate remedies for detriment suffered by the worker in his attempt to enforce the European standard.
I am more concerned with what the standard is than whether it is European, but there is legally a special feature in regard to European-based standards. The directive requires that they should be enforceable by effective and appropriate procedures and remedies. It is not simply my doubt but the doubt of a number of people whether something like the trans-national information consultation provisions, as they rest on that basis, could possibly lawfully, in European eyes, be subjected to these special provisions where the worker has been victimised for trying to enforce his rights that derive from a European level.
Going back to the foot of page 66, we see that these provisions are to apply to unfair dismissal. Much of what we have said about Schedule 2 in its application to unfair dismissal cases can be referred to in this debate. Simply to apply it to unfair dismissal without amendment of Schedule 2, we have already argued, is unreasonable.
At the top of page 67, using Schedule 3 as our agenda, we see that the next case is a case of redundancy payments. Where the worker does not complete those special procedures, his right under Section 163 to go to the tribunal in respect of any right to a redundancy payment, or a complaint about the amount of a redundancy payment, is to be specially dealt with.
There are many who regard this as the most important of the cases where Clauses 31 and 33 are objectionable. There are complicated arguments about the amounts of redundancy payments, especially under Clause 31, and this is a commonsense problem. Is it really necessary to impose these new hurdles upon a claim to a redundancy payment on the assumption that otherwise the worker's right to that amount is as he claims it to be?
Then we have the National Minimum Wage Act and, in addition, a worker who suffered detriment for daring to claim the wage. As a matter of fact, curiously enough, the national minimum wage is also a case where the right can inhere in the contract of employment. But at this level of Schedules 3 and 4, it is not perhaps centrally as important as it is in the Bill.
- "A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of Section 23".
- "any action . . . taken, or . . . proposed to be taken, by or on behalf of the worker with a view to enforcing"
- "the employer was prosecuted for an offence"
We then come to the Tax Credits Act 1999. I was astonished to see that mentioned because I must admit that either I did not know or I had forgotten that a worker who is victimised on the ground that he has tried to enforce his benefit or right under the Tax Credits Act also has a right to complain to the employment tribunal. I do not know why that poor worker—literally, in this sense—is subjected to these new rules.
The next entry, and the equivalent in Scotland, is the Employment Tribunal Extension of Jurisdiction Order 1994. This raises an important point because, of course, the special penalties and the special prohibitions of Clauses 31 and 33 can apply to cases in the employment tribunals. Only fairly recently the employment tribunals had a concurrent jurisdiction with the county courts and the High Court in breach of contract cases.
Therefore, the special prohibitions and the special penalties will apply here to employment tribunal cases, but they will not apply to precisely the same cause of action in the county court or the High Court. I mean precisely the same facts and precisely the same complaint: one in the employment tribunal, to which this will apply, and one in the ordinary courts, to which it will not apply. Quite why the Government want to increase the number of cases in the county courts and allow full recompense and compensation there but not allow it in the employment tribunals baffles me.
Finally, I turn to Regulation 30 of the Working Time Regulations 1998. It states.
- "A worker may present a complaint to an employment tribunal that his employer—
- (a) has refused to permit him to exercise any right he has under—",
- "has failed to pay him the whole or any part of any amount due to him under [the working time] regulations".
This is a straight breach of regulations. It is not a detriment case. It is a straightforward right to go to the tribunal and claim that the working time regulations have been broken. Of course, the point also arises here—and I should have mentioned it before—that in so far as this is based upon a directive of which we have managed to contract ourselves out of a great deal—a situation which I hope will rapidly come to an end—it is more than questionable whether it is possible, under the provisions of what the Luxembourg Court will enforce as European law, that these limitations on the rights under Section 30 to enforce the working time regulations will be acceptable.
No doubt the Government will have prepared a case and I expect they will say that it is only objectionable when one destroys the right and not when one limits it. In reality, when one limits the right to the extent that Clause 33 can limit it and prohibits any access to the
tribunal, one is coming very close to destroying the right altogether. Also, the imposition of penalties on what one can recover obviously has a deterrent effect and is arguably not an effective and appropriate remedy for the enforcement of these European provisions.I apologise for going through each and every provision in these schedules, but when one goes through them, one sees what Clause 31 and, more particularly, Clause 33 really amount to. They are an onslaught not merely upon basic employment protection rights, and a question not merely against European standards, which we are obliged to impose and to have effectively remedied, but also in several cases they are penalties and prohibitions against the enforcement by a worker who suffered victimisation for trying to enforce his rights. What is the sense of that? "Oh", the Government may say, "because he must send a letter to the employer". Who is this employer by hypothesis in every case in which the word "detriment" appears? He is by hypothesis an employer who has—in the allegation of the employee—imposed victimisation on the employee that that employee wishes to have remedied and compensated. What on earth are the Government doing giving special barriers to the enforcement of remedies against detriment and victimisation? What justification is there in Clause 31 for saying that a worker who has been victimised must go through all the levels of appeal before he can get full compensation? The more one looks at Schedules 3 and 4, the more doubtful one becomes about aspects of all the items that are inserted within them.
It would not be much of a Bill if we just abolished Schedules 3 and 4 because Clauses 31 and 33 would become otiose. As a matter of fact, it is one reason why we left in betting workers and Sunday shop workers, because we are not destroying the whole of Schedules 3 and 4. It is a little unfair on betting workers and Sunday shop workers but, nevertheless, we have not moved their exclusion.
I look forward to hearing what my noble and learned friend can say against each and every one of those items. I beg to move.
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