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Lord McCarthy: Perhaps we have construed the amendment wrongly. The point we are making is, after all, an amendment to Clause 33. That clause does not deal with unfair dismissal; it deals with complaints and grievances. The example that my noble friend Lord Wedderburn gave was not to deal with unfair dismissal. The way I saw this amendment—and if I saw it the wrong way, perhaps we need to take it away and rewrite it on Report—is that it is to introduce a criteria of fairness in. It is trying to say the employer must be reasonable. It is trying to say that the employer must investigate. It is trying to say that if the tribunal has evidence that the employer has transgressed in this respect, it is able to say that it will hear the case. As I see it, it is not narrowly confined to an unfair dismissal situation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Razzall moved Amendment No. 149A:
- Page 38, line 7, at beginning insert "Subject to subsection (6J),"
The noble Lord said: Amendment No. 149A is a small drafting amendment and should be taken with Amendment No. 157A. The point being made is a simple one and this is designed to ensure that an employee does not lose any rights under this clause when the complaint relates to the breach of a statutory right. The rationale is a simple one. The employers are already on notice that they should comply with their statutory duties. As these are the minimum standards of employment protection required by law, we can see no real justification for requiring the employee to bring this to the attention of the employer as a requirement of making a claim. Therefore, these amendments are designed to ensure that the employee does not suffer where the complaint relates to the breach of a statutory right. I beg to move.
Lord Falconer of Thoroton: These amendments deal with the situation where the employee may be victimised as a result of exercising the statutory procedures. They seek to ensure that the admissibility criteria—that is, barring somebody from the tribunal—are not applied to cases where there are reasonable grounds for the employee to believe that he would suffer detriment if he invoked the statutory procedures. In
such cases, the tribunals would be empowered to admit applications even though the employee had not instigated action under the statutory grievance procedure and had not waited 28 days.I have said more than once that we recognise there may be cases where it would be unreasonable to expect individuals to send a Step 1 grievance letter to the employer before being able to access the tribunal system. We do not believe that such exemptions should be widely drawn. The writing of a letter is not generally an intimidating step to take. In any case, the employee would need to set out his grievance in writing if he subsequently makes an application to a tribunal. However, we believe that exemptions should apply in cases where there is a real threat that violence or other serious forms of harassment could result. We intend to set out those exemptions in the regulations.
These exemptions would go some way to meet the concerns of the noble Lord. Employers who might physically intimidate their employees are often the sort who would consider taking other forms of detrimental action against their staff.
We are reluctant to introduce a wider exemption along the lines of the amendment. The amendment would considerably increase the scope for employees who want to avoid confronting their employer to try to claim an exemption on the grounds that they might suffer "any detriment", however minor. It would lead to more preliminary hearings by tribunals to ascertain if there were "reasonable grounds" for employees to believe they would be victimised in some form or another.
I hope I have reassured the noble Lord to some extent and that he will reconsider his amendment.
Lord Razzall: I thank the Minister for his response. Between now and the Report stage I shall read what he said in Hansard and think about whether we should bring this back in a slightly different form to meet the more restrictive circumstances that he mentioned. I take the point about the subjective nature of the drafting at present. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 150:
- Page 38, line 8, after "(4)" insert "if"
The noble Lord said: I shall speak to Amendments Nos. 150 and 151 together. Amendment No. 150 is a proposed drafting amendment and I hope that the noble and learned Lord will view it favourably. We do not think the Bill reads very clearly—in fact, I found someone the other day who was reading it for pleasure and became rather confused.
Amendment No. 151 refers to the Government's own logic and refers to page 38, line 12. Clause 33(6) states:
- "An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), if . . . the breach is apparent"—
- "the tribunal is satisfied of the breach as the result of his employer raising the issue of compliance".
That raises a question that perhaps the Committee should have investigated a little more fully. It is prompted by the question that my noble friend Lord Gladwin asked earlier. What does it mean to say that an employee is prohibited from presenting a complaint? It seems to mean that he is prohibited from presenting an originating application, but how is the tribunal to know when he is prohibited? Subsection (6), to which the amendment refers, seems to say that the tribunal can get the knowledge either from what the employee has said—that is, subsection (6)(a)—or, at subsection (6)(b), it can be satisfied as a result of the employer raising the issue of compliance. Such compliance presumably involves compliance with those provisions—that is, subsections (2) to (4). The employee will not know whether the tribunal refuses to allow him to present the complaint, as the section puts it, until the employer has answered it. That, we think, is another reason why the employer should be required to come along and present his information quickly. If that requires a further amendment to the regulations, as it might in terms of the notice and appearance, that could be done—as the Government are so fond of doing—by regulation. I beg to move.
Lord Falconer of Thoroton: I want to make two brief points. The first relates to subsection (6) and the proposal to put in the words "if, but only if", to emphasise that those are the only two circumstances that will prevent tribunals from hearing complaints. We do not think that that is necessary—we think that it is perfectly clear as it is.
The second point involves the question whether there should be a time limit within which an employer has to raise the issue referred to in subsection (6)(b). We think there should be such a time limit and we would intend to put one in—dare I say it—by regulations, which can come under subsection (7). We are not sure that seven days is the right period—it sounds too short—but we will consider what the time limit should be when we come to issue regulations under subsection (7).
Lord Wedderburn of Charlton: I am grateful to my noble and learned friend for what he says—not the first part, because those provisions are not very clear as they read. Never mind; our tiny little amendment is rejected. But the spirit of our second amendment is, as I understand it being accepted. Of course, we have got it wrong again—why should the worker have to wait only seven days? He will have to wait longer, it seems. There he is, unjustly treated and unable to have access to justice. We shall return to this matter in the context of human rights in a later amendment. We have not finished with human rights yet in relation to access to justice. He will have to wait for longer than seven days.
We regret that that is going to be inregulations and we would like to know where we stand now. However, in light of what my noble and learned friend said, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
5.30 p.m.
[Amendment No. 151 not moved.]
Lord Wedderburn of Charlton moved Amendment No. 152:
- Page 38, line 15, at end insert—
The noble Lord said: The object of this amendment is to produce, in this evil Clause 33, which is going to become Clause 32, an even-handed evilness. The Minister is amused by that notion. I do not know why because there is a sense in which the clause is based on such notions.
The clause prohibits an employee from access to justice if the conditions of the clause are not satisfied. That is why it was considered so carefully against the provisions of Article No. 6 of the convention by your Lordships' Joint Committee on Human Rights. That is why there was such a long and profound consideration of Clause 33, together with Clause 31.
The employee suffers those disadvantages. It seems to us that the clause would be more even-handed, on the Government's own logic, if the employer had some obligations under it. The basic obligation of the employee is to complete the statutory imposed procedure. If that is the hypothesis, the worker must do what the procedure requires if he is going to get to a tribunal. That is sauce for the goose. However, why, as sauce for the gander, if the employer does not complete what the statutory procedure requires of him—both as a matter of statute and we know as an implied term of all his contracts of employment—should he be in better case?
What is the equivalent and parallel disadvantage that the respondent suffers compared with the disadvantage an applicant suffers? The applicant cannot present his case. The only possible parallel and similar disadvantage for a respondent is to lose his case. Therefore, the amendment provides that when the employer has a complaint made against him which
My noble and learned friend may not like the wording of paragraph (b), but we have inserted 14 days because that was the logic of our previous amendment to amend 28 days to 14. However, if the Government prefer 28 days as a price of accepting the amendment, we shall be quite happy.
In those circumstances, the employer is not permitted to enter an appearance; that is to say, he loses the case. That is the precise parallel to the applicant who when he did not complete the requirements of the schedule he could not even present the case and he could not possibly win it.
We have added to that as new subsection (6B), that in those circumstances where notice of appearance is not permitted—that is exactly parallel to the employee not being allowed to present his case—the chairman of the tribunal should notify the employer accordingly. We then include amendments to Rule 3(3) of the Employment Tribunal rules, which we apprehend will be necessary if in such circumstances the rules were not to be made absurd.
I could go into the detail of what we exclude, but noble Lords will by now be such experts in the details of the employment tribunal regulations and rules, that I doubt it is necessary for me to do so. I beg to move.
"(6A) An employer against whom a complaint has been made which relates to a jurisdiction to which this section applies shall not be permitted to enter an appearance to the proceedings where—
(a) the complaint concerns a matter to which a requirement of Schedule 2 applies, and the requirement has not been complied with, or
(b) the requirement has been complied with but 14 days have passed since the day on which the employer received a copy of the originating application.
(6B) Where subsection (6A) applies—
(a) the chairman of the tribunal shall notify the employer accordingly that no appearance may be entered; and
(b) rule 3(3) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.I. 2001/1171) shall apply only with the exclusion of paragraphs (a) to (e)."
"(a) the complaint concerns a matter to which a requirement Schedule 2 applies, and the requirement has not been complied with, or
(b) the requirement has been complied with but 14 days have passed since the day on which the employer received a copy of the originating application".
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