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Lord Falconer of Thoroton: That was a very helpful and comprehensive moving of the amendment because a number of clear strands and principles emerged. I hope that I can help the Committee with them. Before I do so, I shall put in context what the Bill does.
Clause 31, as it currently is, states that if you have not gone through the procedures, 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. So, with regard to Clause 31, the consequence of being one of the jurisdictions in which the whole procedure has not been completed is that the award must be reduced by 10 per cent and may be reduced, if it is just and equitable, by a further amount. As my noble friend Lord Wedderburn says, even that 10 per cent is subject
to another exception in subsection (4). The duty under subsection (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase, or a reduction or increase of such lesser percentage as it considers just and equitable. So there are those provisions in Clause 31.Clause 33, as my noble friend Lord Wedderburn has very fairly said, requires the employee, before he can make a complaint, to go through step 1 of the grievance procedure, which is to send a letter raising the grievance. In certain circumstances, the writing of a letter itself would be quite unreasonable to ask the employee to do.
An example where that can be suggested, as has been raised before, is someone who has been bullied because of their gender, their race, because they have raised a national minimum wage claim, or because they have raised a health and safety at work claim. If they are people who would be reluctant to raise the grievance because the offender, the bully, is the person to whom they would have to raise the complaint, then, of course, it would be wrong in those circumstances to bar them from the tribunal. That is understandable and we intend that regulations be made under Clause 31 to provide for exemptions from the need to complete procedures in these and other special circumstances. There may, for example, be some difficulties for people with particular disabilities. We shall have to consider that when we make the regulations. However, in the vast majority of cases I see no reason why Clause 31 should not apply to grievances taken up under these jurisdictions. There will be many cases where, for example, one is alleging discrimination on grounds of race and gender, of trade union membership, of raising health and safety at work complaints or the minimum wage, where the person to whom one raises the complaint is not the person against whom the complaint is being made. There will be cases of detriment because of, for example, raising a national minimum wage issue, where the grievance procedure does not require the complaint to be made to the person who is alleged in the examples given by my noble friend to be the person who is bullying the victim. Is there any reason in those circumstances why a letter should not be written before the complaint is made under these jurisdictions? It is difficult to see why not. The purpose of these particular clauses is to encourage employees and employers to seek to resolve disputes without resort to tribunals or courts. We believe that this provision promotes that.
Of course, we must take care to ensure that people who legitimately would not want to write a letter because of fear, bullying, harassment or other misconduct by an employer should not have to do so. We will seek to do all we can to ensure that. We will be happy to discuss it with my noble friends to ensure that it can be done. Remember that in relation to Clause 33 writing a letter to raise a grievance is not a bad thing to do, particularly when that procedure can, for
example, get the issue pushed up to another level of management. That was referred to by my noble friend Lord Gladwin of Clee in relation to an earlier amendment.It is not a bad proposition and it does not have the consequences that my noble friend, in his submission, suggested. The only case that my noble friend really posited was the bully and in those circumstances we will make provision. The fact that an assertion of detriment is made does not mean that such an issue cannot be resolved in certain circumstances.
Another issue to which my noble friend referred was redundancy payments. As far as this is concerned, he was absolutely right to say that they often give rise to complicated disputes, issues or misunderstandings between parties. The employee has a legal right to his redundancy payment, as specified by law or by a collective agreement. That does not mean that it is not sensible to write and raise the issue about redundancy to see if it can be resolved. Our intention in these particular jurisdictions is not to allow bullying and harassment to prevent claims being made. It is to seek to encourage resolution of disputes by internal procedures. Our regulations will seek to ensure that the proper distinction is made: not to punish somebody who reasonably did not raise the matter through the grievance procedure—which we think will be the exception, not the normal case; on the other hand, we should make sure that where it can be raised it should be.
All the points made by my noble friend Lord Wedderburn of Charlton fall into the category of "You shouldn't have to and it's not fair to do so". I have dealt with all of them. There is no point in going through each of the individual jurisdictions and I am not going to do so. Every one of them fell within one of the points that I have just made.
We have listened very carefully and will discuss very fully with my noble friend and anyone else the details that he would like to see in the regulations to ensure—he rightly referred to this—justice in relation to those who should not be required to write a letter before they have the right to go to a tribunal. However, I do not think that if one sat down and went through it, we would disagree very much.
7 p.m.
Lord Wedderburn of Charlton: I am sorry about that. I think I disagree very profoundly with my noble and learned Friend Lord Falconer of Thoroton about much of this. I am not sure whether he referred to cases of detriment or victimisation. He referred to cases of bullying.
Lord Falconer of Thoroton: Could I help? I was meaning to refer to the health and safety and minimum wage cases where there is provision for one not to be victimised. My noble friend called it "detriment"—that is what it is called in the statute—and I meant to refer to those detriment cases.
Lord Wedderburn of Charlton: I appreciate what my noble and learned friend says. I can only say that the
matter is here in the schedules. Cases of victimisation and detriment are put squarely within the new rules on penalties and prohibitions, and I do not see how regulations will take them out. Perhaps if someone is very badly victimised, the regulation will let them go in some special cases. Frankly, I do not agree that normal rights should be given only in very bad, bullying victimisation.I believe that, in any case, one should have normal rights if one is victimised for trying to enforce one's basic employment protection rights. If a person tries to do that, he may be deprived of overtime, he may not be promoted or he may be victimised in some other way at his place of work. Why on earth should special rules apply to a person's ability to go to a tribunal and say, "That's not fair"? Some workers will say, "I'm not going near that employer again. Look what he did to me last week. Why shouldn't I go to the tribunal and say, 'That's not right'?" By hypothesis, let us assume that the worker is correct in his allegation. What is wrong with enforcing the right not to be victimised, but without special penalties and without special prohibitions?
With the greatest respect, I shall read very carefully what my noble and learned friend said. I do not believe that the defence of Schedules 3 and 4 is particularly effective. He said not one word about the European situation. I do not know whether the Government are remaining silent on that because, once again, they are confident that they will not be judged badly in the European Court of Justice in Luxembourg, but I wonder whether that is so. My noble and learned Lord said nothing whatever about the European dimension. Perhaps we are trying to take that issue off the agenda these days.
Lord Falconer of Thoroton: It was entirely my fault for not referring to the European dimension. We shall of course consider the issue of compliance with European law, but we are perfectly confident that we are complying with it.
However, I believe that this matter goes back to the essential point that I made at the beginning—that is, whether the obligation comes from European law or domestic law, the principle should be the same. If there is a good reason why one should not write a letter—for example, if one is being harassed or bullied—that would be dealt with in regulations. If not, then we do not see the justification. We are also saying that in every one of those detriment cases it would not be the case that there was a good reason for writing a letter.
Lord Wedderburn of Charlton: I see. Therefore, if someone were badly bullied, it would be unsatisfactory for a penalty to be placed on him by the employer if he tried to enforce his European rights, implemented into our law, but not if he were bullied just a little. People will read this and will ask what it means. They will go to an adviser and ask what this is about. The adviser will say, "I cannot tell you that until we have the regulations". He would be able to say, "I might be able to obtain a draft 30 days before the regulations come in". But he will then read Hansard and will charge an
extra fee for that. He will say, "The noble and learned Lord, Lord Falconer, says that if you are bullied a little bit, then you are subject to all these penalties and prohibitions. If you are very badly bullied, then you may not be. But I cannot be sure until I see the regulations".That is not at all satisfactory. These are shoddy legislative proposals. It is not good enough for citizens of the country to be subject to schedules of this kind concerning important limitations on their access to justice. There is nothing that we can do about it this evening. I am not sure what we can do this evening, but at present the best that I can do is beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 136 to 141 not moved.]
Clause 32 [Consequential adjustment of time limits]:
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