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Lord Wedderburn of Charlton moved Amendment No. 161:
- Page 38, line 25, after "modifications" insert "not less favourable to the employee"
The noble Lord said: This matter can be dealt with briefly. We apprehend that the Bill would be improved if the powers of the Minister to make regulations were limited just a little more than the clause suggests. We believe that the modifications which the Secretary of State could make, as set out at page 38, line 25, should be limited at the very least by an ability to amend the statutory dispute resolution procedures in ways that are not less favourable to the employee.
We touched upon this point previously. I took it that my noble and learned friend Lord Falconer of Thoroton was not wholly averse to the argument that we can all understand what is meant by a procedure which is not less favourable to the employee. I cited parallels in other parts of the law where similar phrases have been interpreted. Both Amendments Nos. 161 and 162, which would insert a similar phrase at page 38, line 27, and would give power to amend in a manner not less favourable to the employee than the provisions in the statutory procedures, surely raise matters to which the Government—I say no more than this—should give consideration.
Indeed, I have been puzzling about a point that was raised in a previous debate. I asked my noble and learned friend what procedure he could imagine that he would like to see that would be less favourable to an employee than the procedures of Schedule 2. Can my noble and learned friend, with his experience, imagine a procedure which would be less favourable to the employee than, say, the modified procedures on grievance and disciplinary procedures?
Disciplinary procedure does not require that the employer should investigate what he is doing. It does not require him to say why he does not suspend the worker who is going to lose his job and his income. It merely states that he must notify the employee under the terms of the disciplinary procedure of Schedule 2. In misconduct cases—whatever they are—he must simply notify the employee in writing and the dismissed worker will only have the right to respond. I can imagine what that response might often be.
Therefore, surely the Government do not want the Secretary of State to have the right to introduce a legally compulsory procedure which is less favourable to workers than Schedule 2. If they do, they had better say so. I beg to move.
Lord McIntosh of Haringey: I take it that I am responding to Amendments Nos. 161 to 166 inclusive. I see the common thread through all of them but I shall respond to them separately.
Amendment No. 161 deals with the regulation-making power at subsection (7)(d) to modify the application of Step 1 of the statutory grievance procedures. This would give us the ability to deal with those cases where the sending or the reading of a Step 1 communication presents serious difficulties because
the employee or the employer has a disability or an incapacity which prevents him from reading or writing the letter in English. These modifications would normally be to the benefit of the employee but there could be cases where the procedure should be modified to overcome a particular difficulty which the employer may have. It might marginally inconvenience the employee, although it would be desirable overall. So we do not think we should have a formulation as in Amendment No. 161, which requires the beneficiary always to be the employee.It also raises issues about what constitutes treatment that is more or less favourable to the employee. Different views could reasonably be taken in many circumstances and the tests would be difficult to apply in practice. We might be, under certain circumstances, inviting judicial review, which would not be very good.
Amendment No. 162 is similar. It seeks to prevent us from changing the admissibility criteria in any way that is less favourable to the employee. Again, it could have uncertain results and invite applications for judicial review. The policy underlying the amendment is too restrictive. It is biased against employer interests. If we are to create a fair and accepted system, it must meet the needs of both employers and employees.
Amendment No. 163 seeks to ensure that we use the power at subsection (8)(b) only to remove jurisdictions from Schedule 4. I do not see the point of this. Entirely new jurisdictions may be created in the future as the body of employment rights changes and evolves. We do not wish to limit our ability to use the clause to encourage the settlement of disputes under such jurisdictions.
Amendment No. 164 would require us by statute to consult ACAS on any regulations. I have already said in relation to earlier amendments that we would be consulting ACAS, among other interested parties, when we introduce the regulations for the first time because the regulations are very important. Once they are in place, however, there may be changed circumstances, which would mean that we would need to revise them. Some of the changes would be major and significant, in which case we would consult ACAS but some could be minor and we would not want to commit ourselves in advance to consulting ACAS.
Amendments Nos. 165 and 166 deal with subsection (10), which gives us powers to change other parts of the section when we use the power to change the admissibility criteria by order. It gives us the leeway to make incidental, supplementary, consequential or transitional changes to the section which flow from changing the criteria.
These provisions are very normal in the way in which regulation-making powers are specified on the face of legislation.
Lord McCarthy: I am not going to ask tonight the question that I have asked before but I would like the Minister to think about answering it tomorrow. We do not ask these questions because we are being difficult.
We have asked the question before and I think that my noble friend asked it again this afternoon. We do not want an answer this evening. We do not see how any procedure could be smaller and more unambitious than this modified procedure for the statement of a grievance, which does not even have an appeal. Perhaps the Minister could think about that for tomorrow's debate.7.30 p.m.
Lord Wedderburn of Charlton: One can understand the Minister saying that he does not quite understand what is meant. However, he says that about the phrase, "not less favourable to the employee". I could give him a bit of a reading list about where that phrase has been interpreted without much difficulty. The Minister, as I understood him, said the Government cannot really understand what is meant by a procedure "not less favourable to the employee".
Lord McIntosh of Haringey: I did not say that at all.
Lord Wedderburn of Charlton: He did not say that at all. I am glad about that and we can put that aside. So it is quite clear that we have moved something meaningful.
I can understand his comment about, for example, the obligation to consult ACAS, "Oh well, it is there already". All right. We thought it would be rather valuable at this particular point to make the requirement absolutely clear. What I do mind is when he says, "These could be cases where we want to change the statutory procedure"—I hope I have this right—"to the disadvantage of the employee. It would be biased if we did not take that power". However, he does not give us an example, not even a saloon bar example, which is where these matters are much discussed, especially among small employers and trade unionists too when they get going. If he cannot give us an example, why did he say it?
He gave us examples of things which might be, as I remember, to the disadvantage of the employer. If he gives us an example, we shall be able to judge whether it is conceivable that these unfair procedures could be replaced by something to the disadvantage of the employee that would be more unfair.
I appreciate that this is drawing a bow at a venture and he may have thought of one after all this time. We put it to him three or four days ago but the Government did not come up with an example then. What is the example he has? I see that he is pregnant with delivery and he is about to give us an example.
Lord McIntosh of Haringey: If I stand up and try to be helpful, I get accused of bobbing up and down. I earlier gave a specific example in my speech. It was the case in which there were communication difficulties,
- "because the employee or the employer has a disability or an incapacity which prevents him from reading or writing the letter in English. These modifications would normally be to the benefit of the employee but there might be cases where the procedure
- should be modified to overcome a particular difficulty which the employer may have. It might marginally inconvenience the employee, although it would be desirable overall".
Lord McIntosh of Haringey: I said it before, I said it before.
Lord Wedderburn of Charlton: He has said it twice now but he has not given us an example. It would only be to the disadvantage of the employee if he was forced to write in Greek or forced to write in Swahili. He says that communication may be difficult for those who do not have good English, or for those who are under some disability with their English. All right, so we can make modifications that would be to the advantage of such an employee.
We ended the last session with my noble and learned friend interpreting the amendments in exactly the opposite sense to that in which they could reasonably be read, and he apologised. I do not expect my noble friend to do so tonight, there is not time for a proper apology. However, my noble friend says that he can envisage cases—and he had better think about this for next time—where he will put the employee at a disadvantage. Now I did not hear him give us an example of one such case. He will want to make it concrete next time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 162 to 166 not moved.]
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