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Baroness Turner of Camden: I rise to speak to Amendment No. 190 because it is grouped with the amendment moved by the noble Lord, Lord Razzall. As regards Amendment No. 190, I am indebted to Professor Hepple for the text. Members of the Committee will know that Professor Hepple is a distinguished expert in the field of labour law and is well known to a number of us. He expressed considerable surprise that the Bill, which introduces a number of new concepts, does not include a no-detriment clause. As my noble friend Lord Wedderburn said, "no detriment" means "no victimisation" in lay terms.
It is essential that an employee should not be afraid to exercise the rights which Parliament has said he should have. The aim of the two new sections in the amendment is to provide some protection for an employee in such circumstances.
The first part of the amendment, proposing new Section 47D, lays down that an employee has the right not to be subjected to any form of victimisation because he has presented, or is presenting or proposing to present, a claim to an employment tribunal, or because he proposes to utilise the statutory or other disputes resolution procedure.
We all know that unscrupulous employers exist—if they did not, much of our legislation would not be necessary. However, vulnerable employees exist as well. The unions are there to protect such people, but as we know only too well, there are non-union environments. We have to enable an individual who feels that he has rights that he wants to pursue, to be able to do so without being intimidated in any way.
The second part of the amendment, proposing new Section 104C, deals with dismissal and spells out very clearly that if an employee is dismissed and the reason, or if more than one reason the principle reason, is that he has presented or proposes to present a claim to an ET, or has sought to use the statutory or other disputes resolution procedure, that dismissal will automatically be regarded as unfair.
The amendments are admirably clear and direct. We have been talking about deterrent effects mainly because some of the provisions of the Bill seemed directed towards deterring employees. It is hoped that the amendments which we have proposed will have a deterrent effect on an employer. An employer who is enraged because one of his employees has dared to challenge him by taking a case to an ET will know that if he tries to take out his anger on his employee in any way—and particularly if he attempts to dismiss or does dismiss the individual concerned—he will automatically be regarded as having unfairly dismissed the employee, with the financial consequences that this may entail.
It is no use having rights in legislation if people are too scared or too intimidated to enforce them. I hope that the Minister will agree that these amendments are entirely desirable and that they should be included in the Bill—and if not this wording, similar wording—to ensure that employees are enabled, without being scared or intimidated, to utilise the rights the law gives them.
Lord Wedderburn of Charlton: I am sure that the noble Lord, Lord Razzall, will not mind if I say that our proposal for the new clause has certain advantages.
Lord Razzall: I think it is better.
Lord Wedderburn of Charlton: The noble Lord thinks it is better—that is admirable. It is a disadvantage of our procedure that in merely speaking to Amendment No. 190 it probably will not be printed in full in Hansard. Could I make a plea that Hansard prints Amendment No. 190 in full? If that is not likely to be done, I shall read it but I do not believe that Members of the Committee will be happy if I do so. My noble friend summarised it.
The other point that has caused a great deal of attention among commentators who have been looking at the Bill is why on earth the Bill does not have a victimisation clause. Every employment protection piece of legislation from, I believe, 1971 onwards has had provision that where you create a right for employees, and in some respects obligations, one puts in a provision that the employee has a remedy if the employer imposes upon him or her a detriment—that is, victimises him or her—for exercising those rights and pursuing those obligations. It is perhaps the most glaring omission from the Bill that it does not contain such a provision. I wonder whether the Minister can give us any reasons for that, other than the fact that workers' interests are not entirely fully dealt with in the draft of the Bill?
3.45 p.m.
Lord McIntosh of Haringey: It certainly helps matters if the noble Lord, Lord Razzall, believes that the wording of Amendment No. 190 is better than his own drafting. The principal difference—
Lord Razzall: Perhaps I may interrupt the noble Lord. Academia often beats the Law Society.
Lord McIntosh of Haringey: There is a significant difference, quite apart from issues of drafting, which is that the amendment tabled by the noble Lord, Lord Razzall, deals only with detriment, whereas Amendment No. 190 deals also with dismissal. That is a significant point and I need to address myself in particular to Amendment No. 190.
We sympathise with the underlying intention of the amendment and have looked carefully at it. There is no criticism of its drafting. As regards unfair dismissal, there is protection in the Employment Rights Act 1996, and elsewhere, for employees who are dismissed for asserting a wide range of statutory right; for example, the right not to suffer unlawful deductions from wages. To dismiss an employee in those circumstances is regarded as automatically unfair. That applies whether the employee asserts a right simply by alleging that his employer has infringed it, which might be done by instituting a grievance procedure, or by complaining to a tribunal.
Under the general unfair dismissal legislation, a dismissal must be fair in the circumstances. It is beyond dispute that since dismissals for asserting a statutory right are automatically unfair by statute, no sensible tribunal would find a dismissal for using one of the statutory dispute procedures fair. It is implausible to suggest that such a dismissal could ever be fair—any more than it could be fair to dismiss an employee for making use of voluntary procedures. An employer who said, "I sacked him because he raised a grievance against me, or said he was proposing to", would never be able to convince a tribunal that the dismissal was fair.
Turning to detriment short of dismissal, there is currently protection against detrimental treatment on a range of specific grounds, mainly set out in the 1996 Act. While additional protections against detriment have, from time to time, been added to this list, the Government have not added to them wholesale and are, in my view, entirely right to have taken this cautious view. There is no evidence that broad rights not to suffer detriment are needed and I need hardly say that any such broad rights would add greatly to the potential for tribunal complaints.
I do not therefore believe that the case for having a protection against detriment, as is proposed in the amendment, is made out. Our aim is to get employers and employees to sort out disputes in a sensible way, ideally within the workplace. I cannot feel that it would be helpful to that aim to allow employees to complain to tribunals helpful to that aim to allow employees to complain to tribunals if they think that any reversal or failure to progress in their working lives is traceable to some past attempt to resolve a dispute.
Lord McCarthy: Hansard will tell us what the Minister said, but we do not know when we are going to meet again. I would like to clarify what the Minister
said. He seemed to me to be saying that he accepts that workers might suffer a detriment. He regretted that they might well suffer a detriment, but the trouble was if we did anything to mitigate their suffering it would add to the number of tribunal cases. Is that what he said?
Lord McIntosh of Haringey: Hansard will indeed record what I said. I said that I sympathise with the idea but, as regards unfair dismissal and detriment, I said there are remedies in the existing legislation, in particular in the 1996 Act.
Lord Wedderburn of Charlton: I understand that, but my noble friend said two things. First of all, as regards dismissal, he said there could never be a case where the employee would fail if detriment in the way of dismissal were imposed upon him for presenting or proposing to pursue a complaint.
Lord McIntosh of Haringey: I did not say never.
Lord Wedderburn of Charlton: The Minister says that he did not say never. We will look at Hansard. Then I moved from dismissal because I thought the Minister had some case on dismissal, although I did not like the word "never". Let us move to detriment. He says there are remedies available already in a case—and I want to be quite clear about this—which the individual specified by the amendment could pursue under the 1996 statute. The individual is someone who, let us say, is suspected of presenting, or proposing to present, a complaint by reason of Section 33, or one that is contrary to Section 33. He says, "I do not like being shut out from the tribunal", and then he is victimised. The employer says, "No more overtime", or whatever it is. Which section of the 1996 Act could he rely upon for his remedy?
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