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Lord Wedderburn of Charlton: We shall look very carefully at what my noble friend said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy moved Amendment No. 157:
- Page 38, line 15, at end insert—
The noble Lord said: This is in some ways our most ambitious attempt to narrow and define the impact of this clause. I argue that most of what we want to achieve arises out of the scattered remarks of Ministers in various places. In the amendment we refer to the Secretary of State. We accept that this has to be done by regulation because we cannot put detail on the face of the Bill about how the different origins of grievance would be specified. Nevertheless, there should be provision in regulations for the provisions not to apply to inappropriate cases.
In the amendment, at proposed new subsection (6G)(a), we set out a possible list of inappropriate cases. It refers to
I cannot say what the logical link is between those various inappropriate categories. I could posit or assume one, but I believe that at one time or another the Government have made statements suggesting that they have some series of factors making them want to take certain things out. Sometimes they seem to have suggested that the individual applicant will not even want to write a letter or will not want any contact with the employer, perhaps in a case of violence or harassment of some sort. At other times they have suggested that there might be a very strong prima facie case of illegality—for example, the refusal to pay redundancy payments. On other occasions, they have said that there could be a strong possibility of distress if the full rigour of the waiting time period is insisted upon.
Collective bargaining is a special case because the Government have seen that where there is a recognised trade union and a procedure for dealing with grievances on a collective basis—although sometimes
That prompts one to wonder, beyond the rather shallow attempts on my part to say what the matters all have in common, how the Government see the issue. Clause 33 appears to begin with very general statements. On reading it, we might think that every conceivable grievance is going to come under the list. We also have a general statement about regulations and how the Secretary of State could take certain things out, and put other ones in, which we get in Bills of this kind. Then we have other statements, including, for example, that from Mr Johnson in Committee in another place on 18th December. Another statement was made by the noble Lord, Lord Sainsbury, at Second Reading. Certain categories are pushed out and talked about. One sometimes reads about that in the newspapers.
Even if the Government decide—they may very well decide in this way if the future resembles the past—that our list is no good, they might tell us, in general terms, where they got their list from. What are the general characteristics that lead them to qualify the impact of the schedules? I beg to move.
Lord Wedderburn of Charlton: I support the amendment and address myself in particular to proposed new subsection (6G)(b). This concerns what are sometimes called "collective grievances". Rather than read out all the relevant words, I know that Members of the Committee will have closely studied what went on in committee in another place, so I simply refer to columns nos. 122, 180, 181 and 183. On those occasions the Minister, my honourable friend Mr Johnson, stated again and again that it was not the intention of the Government to apply the procedures to collective redundancies, or as he put it elsewhere, collective issues, where the issue is collective and where there is,
When an employee decides that he has a grievance that results from unlawful action on the part of the employer, he has to decide what to do. If he is sensible, he will be a member of a trade union, and he will have advice from the local representatives and more senior representatives of his union.
I make no complaint that the Bill, when it is enacted, will give rise to a great deal of difficulty for trade union representatives. They have had to cope with more than this legislation, but there is a peculiar difficulty because a worker comes to him and the union representative says, "I see that, that's not fair. I think as a matter of fact that it's illegal. You could go to a tribunal. But hang on a minute. Have other people got the same grievance?" The worker would say, "Yes. In fact, nine-tenths of us think that this is monstrous. It
We have tried to prompt the Government—almost to provoke them—into thinking about this matter because our proposed new subsection (6H) offers a definition. It is just a kite to fly. Our definition refers to a grievance that a recognised trade union has raised, or proposes to raise, within the week, with an employer. Is that what collective grievance is going to mean? It is no good telling us that this has all got to wait for divine guidance to rest upon the officials in the Department of Trade and Industry who will tell us in tablets of stone marked "Regulations" that this is what it means. There are people who are worrying about this now. They want some guidance. They want a word. They want a hint. They want to know what is in the Government's mind, as my noble friend has said, and that is why I support this amendment.
Lord McIntosh of Haringey: I start by saying how much I welcome the form of this amendment. This amendment does not seek to write the regulations on to the face of the Bill but to constrict what the regulations shall do by setting out a statement of what they should cover without attempting to make the wording "set in stone", if I may borrow the analogy of my noble friend Lord Wedderburn. To that extent, I find it helpful. Indeed, as I have taken part in the proceedings of this Committee, there have been a number of occasions when I have said to the Committee, "We agree with what you want but we have to resist the idea that what you want should be written on the face of the Bill rather than be in regulation". This amendment seeks to achieve what it wants not by writing the regulations but by specifying what they should include. To that extent, it is very helpful.
Having said that, I have to say that, first, we do have regulatory powers. We have powers in framing the regulations to make exemptions to the admissibility regime, but that is rather a formal point. The amendment enables the noble Lords, Lord McCarthy and Lord Wedderburn, to specify a wide range of things which should be excluded either because they consider them to be inappropriate or because they raise issues of collective grievance.
Lord McCarthy: I thought that I explained the matter. We have actually done some research on this; it is not off the tops of our heads. I do not know what I would put in because I do not understand the principles on which the Government put things in and take things out. This is not our list. It is the Minister's list. It is what the Minister said. If the Minister likes, we could bring back all the references tomorrow, but this is what, at one time or another with varying degrees of precision, the Minister has said. I am saying, "Stick your regulations where your mouth is"!
Lord McIntosh of Haringey: I do not disagree with that. I was coming to what we propose to put into
It is our intention to be sparing in setting exemptions. As we have argued with other amendments, most employees should have little difficulty in fulfilling their obligations under this clause. They just have to raise a grievance in writing and wait 28 days. They would, anyway, need to set out their grievance in writing when they make an application to a tribunal. No one is suggesting that they should be exempted from meeting that requirement of the tribunal system. The employer would soon find out the grievance in any case. So we need to ask ourselves what special grounds may arise where it would be unreasonable to expect an employee to set out his complaint to the employer a little earlier.
We think that there will be some special cases. The threat of violence or other forms of serious harassment fall into this category. We do not want to force employees to raise a grievance as an individual complaint, if it has already been addressed as a collective issue by a union on their behalf. That is the second broad category. We intend to cover these two main categories of exemption in the regulations. There may be others which it would be sensible to add. For example, the amendment about interim relief may raise the need to exempt a particular set of cases. However, we cannot accept that the scope of the exemptions should be drawn as widely as this amendment implies. If we followed this approach, an exemption could be claimed in a large proportion of cases. It would mean that the admissibility regime would never apply, for example, to any cases involving race or sex discrimination. It would seriously diminish the purpose of the clause.
If there is any opportunity to compare the matters which I have listed as being exemptions we are prepared to accept with the list in this amendment between now and Report stage, I should be very happy to do that. If that means that we should be putting an agreed list, or a list which is acceptable to the Government, on the face of the Bill in this form—in other words, as a constraint on the regulation-making power—I am prepared to consider that as well.
"(6F) The Secretary of State shall by regulations make provision for this section not to apply to inappropriate cases.
(6G) In subsection (6F) inappropriate cases include cases where the complaint includes—
(a) allegations of violence, intimidation, bullying, sexual or racial discrimination or harassment, other forms of unlawful harassment, more than one unlawful deduction from wages, claims based on redundancy and such other matters as the Secretary of State specifies by order; and
(b) a complaint which relates to a collective grievance.
(6H) In this section a collective grievance includes any grievance which a recognised trade union has raised, or proposes to raise within seven days, with an employer."
"allegations of violence, intimidation, bullying, sexual or racial discrimination or harassment, other forms of unlawful harassment, more than one unlawful deduction from wages, claims based on redundancy and such other matters as the Secretary of State specifies by order".
That is a general collection of points, which I shall discuss in more detail in a moment. New subsection (6G)(b) refers to,
"a complaint which relates to a collective grievance".
In subsection (6H) we state what we mean by collective grievance. It states that it,
"includes any grievance which a recognised trade union has raised, or proposes to raise within seven days, with an employer".
"industrial action where they arise out of a collective dispute".—[Official Report, Commons Standing Committee F, 18/12/01; col. 183.]
6.30 p.m.
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