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Lord Wedderburn of Charlton moved Amendment No. 170:
- After Clause 33, insert the following new clause—
The noble Lord said: This is a small point, which relates back to Clause 33. Perhaps I take the nub of Clause 33 again.
The reality is that in many cases a complaint, or at least an originating application, will include a number of cases. If the Minister would like to look at the statistics of cases which come to a hearing in employment tribunals, produced annually by the Employment Tribunals Service, he will find that the
Many complaints have multiple grounds. The subsection provides that where the tribunal—we have learnt most valuably in our debates that there is to be a tribunal, or at any rate, a tribunal chairman notified through the secretary—sees an originating application submitted on multiple grounds, some of which fall within Section 33, in order to avoid the tribunal having to engage in a long process of assessing which grounds fall within Section 33, those complaints or originating applications should not be prohibited from being presented under the section. I beg to move.
Lord McIntosh of Haringey: Let me start by agreeing that applications which are called multi-jurisdictional—in other words, which involve two or more complaints—are by no means unusual. My noble friend Lord Wedderburn is saying that they are the majority of cases and that seems entirely possible. Employees often allege in a single application that an employer has infringed a number of employment rights. That often occurs in cases of unfair dismissal. However, as we have explained, the admissibility criteria will not be applied to cases of unfair dismissal, other than in some constructive dismissal cases, nor will they generally be applied to former employees. The scope for the admissibility regime to be applied to multi-jurisdictional cases is not as great as may appear. However, we recognise that such cases will occur and that we need to have systems in place to deal with them.
The amendment highlights this issue. It proposes a rule for the application of the admissibility criteria to cases where proceedings are brought both under a jurisdiction or jurisdictions to which Clause 33 applies, and under a jurisdiction or jurisdictions to which it does not apply. It proposes in these circumstances that where the admissibility criteria do not apply in relation to any one or more of the complaints, they are not to apply to any of the complaints made at all. I hope that I describe the impact of the amendment correctly. It appears that I am.
We recognise that the regulations will need to deal with the special circumstances raised by complex cases involving several complaints. In drawing up the regulations, we will be guided by several considerations. Where possible, we want to avoid unnecessary and wasteful processing of complaints. It follows that we do not want to compel employees in all circumstances to treat each element of a complaint separately, thereby forcing both them and the employer to undertake separate rounds of the three steps for each part of the complaint.
On the other hand, we see no reason in principle why in the case of multi-jurisdictional applications, the admissibility regime cannot normally be applied successfully to those complaints which attract it. That is, however, a matter that can be dealt with in the
The regulations will need to deal sympathetically with situations of the kind encouraging closely related complaints to be linked. We will also need to cater for circumstances where a complaint evolves through a dialogue between the employer and the employee. Sometimes, an employee only recognises the full nature of the complaint through the discussions. Again, we will need to allow for those circumstances, ensuring wherever possible that employees are not required to send a second letter listing a further grievance where that grievance has already been aired orally at the meeting under the statutory procedure.
I can assure my noble friend Lord Wedderburn of Charlton that we appreciate the issues raised by multiple complaints. They are certainly complex issues. We will need to address them carefully in the regulations. As we have said, we will consult on the draft regulations to find the best approach. However, I am afraid that that does not mean that we can accept the general exclusion of the admissibility criteria in these cases.
Lord Wedderburn of Charlton: I am grateful to the Minister for what he says. Of course the amendment is not primarily about unfair dismissal; it is about grievances because they fall within paragraph 6 or 9 of Schedule 2.
However, as regards the record and what we know about it, we have raised a new point. I am glad that the regulations will purport and try to deal with this matter. I am not entirely sure from what the Minister has said how he will deal with it. I appreciate that like so much in the Bill we will have to wait until the tablets of stone are delivered in what are likely to be volumes of regulations as far as I can see. We look forward to that. I am glad that it is being considered. In that spirit, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 [Tribunal jurisdictions to which section 33 applies]:
[Amendments Nos. 171 and 172 not moved.]
Lord Razzall moved Amendment No. 172A:
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 176A and 176B, which make different points technically but the same point in substance. That point is very straightforward. It goes back to the issue of detriment which we touched on during debate on an earlier amendment. The parts of Schedule 4 all relate to claims of detriment where the employee claims that he or she has suffered a detriment as a result of claiming a statutory right. In those circumstances, the employee has already put the employer on notice that he or she is taking steps to enforce a statutory right. Therefore, it is difficult to see the justification for preventing the employee bringing a claim when the new complaint is that the employer has reacted badly to the initial complaint. Simply
Lord McIntosh of Haringey: The grouping has betrayed us to some extent because we discussed much of this issue previously when we debated the amendments which paved Amendment No. 172 and so on. However, I must take these four amendments on their own. They seek to leave out a number of detriment jurisdictions from Schedule 4 to which, of course, Clause 33 applies. A number of amendments relating to detriment have already been debated. Our view is well known. We do not believe that these jurisdictions should be omitted from Schedule 4 but there is a case for exemptions in some circumstances.
Amendment No. 172A seeks to omit Section 146 of the Trade Union & Labour Relations (Consolidation) Act 1992, which is concerned with detriment in relation to trade union membership and activities, and paragraph 156 of Schedule A1 of the same Act, which is concerned with detriment in relation to union recognition rights.
Amendment No. 173A seeks to leave out Section 48 of the Employment Rights Act 1996, which is concerned with detriment in relation to such issues as health and safety cases, working time cases, employee representatives, protected disclosures and leave for family and domestic reasons.
Amendment No. 176A seeks to omit Section 24 of the National Minimum Wage Act 1998, which is concerned with detriment in relation to the national minimum wage. Amendment No. 176B would leave out Schedule 3 to the Tax Credits Act 1999, which deals with detriment in relation to tax credits.
It has been argued that employees who have already had detrimental action taken against them will be inviting further victimisation by initiating the statutory grievance procedure. However, I do not see why writing a Step 1 grievance letter to an employer should normally be an intimidating step to take. After all, as my noble and learned friend Lord Falconer pointed out yesterday, if the employee subsequently wanted to make a complaint to an employment tribunal, that would need to be set down in writing.
As we said earlier, there should of course be exemptions for things such as bullying or the threat of violence, and the regulations will address that. I hope that it will provide some reassurance to the noble Lord, Lord Razzall. But I do not see any need to provide what, in effect, would be a general exemption where detrimental action has been taken by omitting the lines in Schedule 4 as proposed by the amendments.
Lord Wedderburn of Charlton: The Minister is right that we touched on this matter previously and I have looked very carefully at the debate. However, I do not understand why the Government insist that their
I understand the Government's arguments, although I do not agree with them, in relation to a case where a worker is pursuing his rights. There they are adamant, even under the Disability Discrimination Act, that he must satisfy their procedures before he can go to a tribunal. I do not understand the logic in saying that the worker will be excluded when he is bullied—or, as I understand it, that that will apply in certain cases of bullying—but that he will not be excluded where he is victimised for pursuing his rights. A large number of the cases in Schedule 4—that is what we are again discussing—are detriment jurisdiction cases. In fact, if one added them up, one would, I think, find they constituted a very high minority of cases—not half but a high percentage of cases are detriment cases, in which a worker is victimised for proposing to pursue his rights. If you want to protect him where he is being bullied, why will you not protect him where he is being victimised?
"COMPLAINTS ON ONE OR MORE GROUNDS
(1) The Secretary of State shall by regulations make provision for applications to an employment tribunal which include more than one ground of complaint, including complaints under more than one jurisdiction.
(2) Where such an application is made on one or more grounds to which section 33 applies, and one or more grounds to which that section does not apply, subsections (2) and (3) of that section shall not apply to it."
"An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if -
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
(b) the requirement has not been complied with".
This essentially probes the meaning of Clause 33 in that respect.
"An employee shall not present a complaint".
I have always wondered why the clause was drafted in that way. I take it it was more to do with the instructions to the draftsman than the draftsman himself because I cannot believe that the draftsman would not have wanted to refer to the technical terms which exist at present in the law and would not have drafted it as:
"An employee shall not present an originating application to an employment tribunal".
However, the subsection does not say that. It says "a complaint".
Page 67, leave out lines 21 to 24.
4.45 p.m.
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