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Lord Falconer of Thoroton: He must send the letter.
Lord Wedderburn of Charlton: He must complete—I quote the clause,
- "the requirement in paragraph 6 or 9 of Schedule 2 has not been complied with".
- "The necessary condition is satisfied"—
- "where ... the employer has given to the employee an assurance that he has conducted an appropriate investigation",
Lord Falconer of Thoroton: That is fine and very clearly put. The amendment says that you must give that assurance in relation to the letter that has been sent. But I accept what my noble friend says. All that we are saying in our procedure is that one has to write a letter raising the matter before. Presumably, it is not a grievance that has to be raised in writing. I am not quite sure how one identifies the grievance. In his amendment my noble friend has done it by reference to the letter at the first stage in the procedure. However, apparently we can ignore that now. It is just some unidentified grievance, saying that an assurance has to be given in relation to the case that a proper investigation has taken place. If, again, that is the proposal that he makes, again, it would appear that the employer can prevent the employee going to the tribunal, because what the employee wants is the ability to go to the tribunal. What the procedure involves is simply saying, before you do that, subject to the exceptions, you should write a letter.
Lord McCarthy: No. The amendment provides that you can go to the tribunal without the letter in the good old-fashioned way, unless the employer does something as well as you. What you have to do is write a letter; and what the employer has to do is to do what we are saying in Amendment No. 147A. It becomes, in a sense, a kind of parity. If the employer will not do it, he cannot stop you going; you go.
Lord Falconer of Thoroton: I see. The amendment therefore provides that, if the letter has not been sent, the employee can say, "I don't need to send the letter unless the employer gives the assurance that he has properly investigated the matter".
Lord Wedderburn of Charlton: Yes.
Lord Falconer of Thoroton: I understand now and I apologise. It was entirely my fault for not understanding until it was explained so clearly by my noble friend. With respect, that is an unnecessary degree of complication. I do not really think that my noble friends Lord McCarthy and Lord Wedderburn believe that it is an appropriate degree; and they are saying sotto voce that they do not believe it is an appropriate degree of complication. It is a sort of— I am not quite sure what it is. We just have to address the question: are we right or are we wrong in requiring this letter in the first place? We think that we are, subject to those exceptions. I do not believe it really throws much light on the issue by this if, which we deny, you require this letter, there should be this procedure as well. It does not really advance the debate one jot.
Lord McCarthy: At least it completes the debate properly at half-past seven. The noble and learned Lord has used every reason to reject our amendments except that we do not believe what we say. So now he has completed it, there is nothing left.
Lord Wedderburn of Charlton: I can assure my noble and learned friend that we believe every word that we say. I made it quite clear. I moved the amendment on the basis of the Government's own hypotheses. They want a letter to be sent. I want this to be even-handed. This amendment introduces an even-handedness. I feel as though I am in "My Fair Lady" and want to say, "By Jove, he's got it!". He has suddenly understood the effects of the amendment.
My noble and learned friend now understands that an employer cannot stop an employee going to a tribunal. However, he can stop the employee going to a tribunal if he does not give the assurance, and so it is even-handed. It is not very complicated. He thinks if he introduces a degree of complication which is in the Bill, it baffles the lay mind. This would not. If the only objection to the proposal is that it is not to be an assurance in writing, I will happily by manuscript amend the amendment to include a written assurance rather than one that is not written. That puts an extra burden on the employer.
I was very gentle in my burdens on the employer. It is just an assurance, and if that is what the noble and learned Lord objects to, I hope he will understand that we can bring it back on Report and move it as a written assurance.
Lord Falconer of Thoroton: Let the whole House hear it.
Lord Wedderburn of Charlton: Yes, indeed, my noble and learned friend is quite right. However, since the debate has been prolonged on the basis that my noble and learned friend did not appreciate the effect of the amendment, he cannot expect me to say other than that we shall consider bringing it back in a better form on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton: For a variety of reasons, this may be a convenient moment for the Committee to adjourn until Monday next at 3.30 p.m.
- The Committee adjourned at eighteen minutes before eight o'clock.
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