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Lord Wedderburn of Charlton: Before my noble friend withdraws the amendment, as he plainly is about to, would it be possible for the Minister to confirm what my noble friend has just said—that these matters will be reconsidered to this fundamental degree?

Lord Sainsbury of Turville: I can confirm that. I am sorry that I did not say that earlier, rather than just nodding my head.

Lord Lea of Crondall: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 183 and 185 not moved.]

6.45 p.m.

Lord Wedderburn of Charlton moved Amendment No. 186:

Page 39, line 32, at end insert ", but in a case where it considers that an award limited to that provided for under section 112(6) results in injustice to the employee, it shall award such sum in addition to the award under that subsection as it considers just and equitable"

The noble Lord said: I simply interpose that I did not move Amendment No. 184A, which deals with the case of misconduct, because we took the view that this had been dealt with in our earlier discussion. We are delighted that the Government are going to give fundamental reconsideration to this whole question. I understood that that is what the Minister indicated at the end of our debate on the previous amendment.

Amendment No. 186 is a small amendment—

Lord Sainsbury of Turville: I beg your pardon, but I do not think that the word "fundamental" passed my lips.

Lord Wedderburn of Charlton: I apologise to my noble friend—the word "fundamental" did not pass his lips. Perhaps what he regards as serious reconsideration we shall try to see as fundamental, or vice versa. Anyway, some reconsideration is going to take place, and we look forward to it. In that reconsideration, we hope that Amendment No. 186 could also be considered, even if only as a footnote. We are rather keen on the footnotes to this discussion because every single word will matter. When this arises in litigation—it will do so as soon as this part of the Bill is put into force and comes into effect—it will be tested. We hope that it might include some even-handedness; that is, albeit at present the Bill allows for adjustments in cases where there might be an injustice to the employer, as set out on page 39, line 32, we have a case where an employment tribunal, even in the case

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of unfair dismissal, which is automatically unfair, is not required to make the mandatory award where it would,

"result in injustice to the employer".

First, I hope that the Minister will explain what that means. If he cannot explain it in terms of a general formula, perhaps he can give us an example of a case where an employer has dismissed in a manner which is automatically unfair and in breach of the fundamental procedures and where normally an award will automatically be made against him of at least four weeks' pay, if that is thought to be an adequate sanction. However, now the proviso runs:

"An employment tribunal shall not be required to make an award under subsection (5) if it considers that such an award would result in injustice to the employer".

What kind of injustice do the Government have in mind? What kind of case are they thinking of where the employer throws out the employee without consideration of any procedure, deprives him of his job and his wage and then says, "It would be unjust to make an award against me"? I wonder whether we could have an example of that.

However, accepting that that is what the Government want—no doubt they have some real life cases in mind—we wish to add in Amendment No. 186,

"but in a case where it considers that an award limited to that provided for under section 112(6)"—

my noble friend kindly indicated in a previous debate that that should be Section 112(5), but we are very happy to accommodate his suggestion—

"results in injustice to the employee, it shall award such sum in addition to the award under that subsection as it considers just and equitable".

If there is provision for a case, which we cannot imagine, where it would be an injustice to award the amount against the employer, there may well be a case for saying that such sum should be awarded as just and equitable if the limit on that award would be an injustice to the employee. We have deployed "sauce for the goose, sauce for the gander" arguments in relation to previous clauses in the Bill. This is another example. I beg to move.

Lord Sainsbury of Turville: The amendment also deals with the part of Clause 34 which will make it automatically unfair to dismiss an employee without following the new statutory procedures. As I explained when speaking earlier to Amendment No. 185, an employee who is dismissed in such circumstances will generally receive four weeks' pay. In most cases, that will be achieved by increasing his basic award to four weeks' pay if it would otherwise be less. Where the tribunal orders his reinstatement or re-engagement, it must make a separate award of four weeks' pay.

The earlier amendment would have increased the award where the employer was ordered to reinstate or re-engage the employee from four weeks' pay to 12. As I explained, we consider that to be excessive, all the more so since the current amendment appears—it is obviously referring to Section 112(5), as my noble

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friend said—to provide tribunals with the power to increase compensation from 12 weeks' pay to as much as they see fit. Not only do we believe that four weeks' pay is a reasonable amount; we believe that a "one size fits all" penalty is right. To give the tribunals discretion to vary the size of the award would risk complicating their proceedings while they attempted to delve into the extent of the nature of the employer's failure or motives which lay beneath it, which might be far from easy to discern.

Baroness Turner of Camden: Before the noble Lord sits down, would he not agree that there is in new subsection (1B) on page 40 provision to make an award or not make an award—or not increase the amount of an award—where an increase would result in injustice to the employer. However, there is no parallel provision to provide similarly to an employee who otherwise might suffer an injustice and there does not seem to be any kind of equality about that.

Lord Sainsbury of Turville: The purpose of this amendment is to say that if this does appear to lead to an injustice it should be removed. This is what, in the context of this particular clause, seems to me to be the right thing.

Lord Wedderburn of Charlton: I understand what my noble friend the Minister says in reply to my noble friend Lady Turner. However, the Bill is concerned with the matter in two places. A special subsection is introduced to deal with "injustice to the employer". When we suggest that perhaps some even-handed introduction should be made to deal with injustice to the employee, it seems we are outside the scope of the Bill's imagination.

This again illustrates the way in which this is a one-sided Bill. When the Government reconsider matters over Easter, I earnestly ask them to consider whether this is not a one-sided Bill. The minimum statutory procedures are unfair in a variety of respects which we have shown, and after indicating the same point on a large number of clauses, we now come to the fact that the Government are willing to make express provision—although it is still not at all clear to me exactly where it would apply—for cases of what they call "injustice to the employer".

As soon as we suggest that the Bill should deal with cases which are very easy to imagine where an amount of four weeks' wages or any other award might create an injustice to the employee because he has been dismissed—not just dismissed, but dismissed in a way that breaks the very fundamental rules of civilised behaviour—no, the Government cannot possibly introduce a provision that might give the tribunal a discretion, which is what we are asking for, to deal with cases of injustice to the employee. The Minister really must understand that he is defending a Bill which is unfair, lop-sided and not even-handed.

I am sorry the Minister will have to spend so much time on the Bill over Easter. I wish him well in the break to which we are all coming. However, in his labours over Easter could he possibly suspend disbelief

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and imagine that it is possible that this Bill is one-sided? The refusal of this amendment is the final proof that someone, in of all things a Labour government, can introduce provisions for injustice to the employer. I cannot quite imagine what the cases are, but I do not make complaint fundamentally of that. What I complain of is that a Labour Government, however new or old, have put themselves into a Berlusconi mindset where they cannot even consider or take away for Easter, and in bed read before they go to sleep, some provision for injustice to the employee.

I did not expect the Grand Committee to be such a shock. I have been a member of my party for some 56 years, and I have never heard anything of the kind ever suggested before. However, perhaps times are changing. It may be that those who reconsider over Easter regard my suggestions as quite outrageous; that the only thing that Parts 2 and 3 of the Bill are capable of dealing with are injustices to employers, as they are seen by the draftsmen, and not injustices to employees.

It may look a small amendment, but it speaks volumes for what has gone into the construction of this Bill. All I can do at the moment, is beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 187 to 189 not moved.]

Clause 34 agreed to.

[Amendment No. 190 not moved.]

7 p.m.

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