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Lord Wedderburn of Charlton moved Amendment No. 191:
- After Clause 34, insert the following new clause—
The noble Lord said: It has been shown already that it is possible to discuss the remedy of interim relief within the confines, perhaps generously understood, of the new structure of unfair dismissal law and detriment law that is introduced by the Bill.
Interim relief now applies to a large number of cases, including the right to be accompanied. It seems to us that it should include an interim relief against the suppression of trade union membership and trade union activities. That would be achieved, we submit, by introducing Section 146 of the consolidation Act 1992 into the Employment Rights Act, at the place which is suggested by the amendments. I beg to move.
Lord Sainsbury of Turville: This amendment concerns interim relief, which is a remedy that employees may apply for if they consider that the reason, or principal reason, for their dismissal was on certain inadmissible grounds. One such ground is that they were dismissed on grounds of their membership, or non-membership, of a trade union, or their participation in the activities of an independent trade union. That is provided for in Section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The interim relief procedure, which has to be started promptly after dismissal, is designed to protect the employee by securing either that he is reinstated, or re-engaged, or, failing that, that his contract continues. As its names suggests, it is an interim remedy that does not determine the merits of the case.
The amendment seeks to add Section 146 of the Trade Union and Labour Relations (Consolidation) Act to the list of jurisdictions in respect of which interim relief is available. That section is concerned with action short of dismissal on grounds related to union membership or activities. It does not mesh at all with the interim relief provisions because, as I have indicated, they are available only when an employee claims to have been dismissed for certain automatically unfair reasons. Therefore the amendment is defective not just in form, but also in substance. An employee claiming under Section 146 has not been dismissed (unless he has been dismissed since for a different reason), and the remedies of reinstatement or continuation of the employment contract available under the interim relief provisions are therefore incapable of being applied.
Those who suffer detriment because they are trade union members, or because of trade union activities, may already complain to a tribunal and get a remedy. Interim relief is available for dismissal for certain inadmissible reasons because in that case the employee has lost his job. It is relevant only in that case, and I can see no case for a procedure beyond what is already available. I therefore hope this amendment will be withdrawn.
Lord Wedderburn of Charlton: I am grateful to the Minister. He is of course quite right that acceptance of this amendment would require some further changes in the detail of the notion of what is interim relief.
However, it is quite remarkable that although, when the employee suffers the final detriment of being deprived of his job, he can get interim relief. It seems that the Government are quite happy with the suggestion that the remedy should be expanded—and that would need further amendments to the 1992 Act, where he suffers perhaps the most catastrophic reduction in his earnings or in his position at the place of work—and that he cannot get any interim remedy. This goes to speed in the tribunals, and it is time, as has been said in various commentaries, that the notion of interim remedies should be considered on a wider basis. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 192:
The noble Lord said: There is a sense in which some of this matter has been discussed already but it refocuses the minds of Members of the Committee on a very important matter. The amendment asks the Government to consider adding to Section 1 of the Employment Rights Act 1996. That is the section under which the employer must give—I note the phrase that has been used since it was first introduced in 1963—to the employee a statement of written particulars. It is true that under Section 3 of the 1996 Act, the employer must give to the employee, along with the written particulars, a note which specifies, as Section 3 puts it—a note about disciplinary procedures and grievance procedures and, as a matter of fact, about pensions, other than procedures relating to health or safety at work. The employer must give a note informing the employee of:
As a matter of practice, we know that the ability of the employer to refer to other documents reasonably accessible to the employee causes workers considerable difficulty when they are advised to go and look at what the grievance procedures are. And now they have a new situation created by this Bill. The new situation is created because into their contracts of employment is implied the provisions of Schedule 2. Schedule 2 sets out the statutory provisions in regard to procedures concerning disciplinary matters on the one hand and grievance procedures on the other. So, when one takes a job and makes a contract which contrary to lay opinion is not always a written contract—one makes a contract of employment as soon as one is taken on if one is lucky to find a job. Then the employer gives one the written particulars and a note, as he is required to do under the Employment Rights Act 1996. But he can say in that note, in regard to disciplinary procedures and grievance procedures, "You must go and look at some other document about the details of these matters". I have quoted from Section 3 on grievance procedures.
We do not think that that is good enough. When an Act of Parliament says, "These are the procedures which must be fulfilled on each side, by the employer and by the employee. Here in Schedule 2 are the procedures", it is not good enough for the employer simply to say, "Go away and look at Schedule 2, which is reasonably accessible to you in the woodshed, or even behind it". We think that the obligation should be to give to the employee something which both sides will understand, so that they will know where they stand. The employer, after all, has to give a huge number of details in the written particulars. I will not read out paragraphs (a) to (k) of Section 1(4) of the
We say that, among that list, should be a new paragraph (hh), which is in the amendment. The employer should explain the effect of all relevant statutory procedures. It is no good saying that an explanation is more than he is required to do at the moment. If I take Section 1(4)(d)(iii), he must set out details as to the pension schemes.
I often wonder whether some of the details which are put into written particulars really fulfil Section 1(4) in that and similar respects, but this is no greater burden. Indeed, it is not a greater burden because what in fact will happen is that the Department of Trade and Industry, in its somewhat subsidiary Employment Relations Department, will issue to employers a little leaflet which explains what the statutory procedures are. They provide all sorts of regulations and forms and all sorts of documents. I am sure that they will provide employers—big, small and medium—with a document that explains the statutory procedures. The employer will not have any great difficulty in attaching one of those, or even a photocopy, explaining the statutory procedures to the written particulars which, at the moment, he is obliged to provide under paragraphs (a) to (k) of Section 1(4) of the Employment Rights Act 1996.
I have tried to puzzle what sort of objection there will by from the Government to this proposal. I am sure—I have an apprehension—that there may be some objection, as there is to so much of what we suggest. It cannot be that things would be too clear, because that would contradict the Government's aim for clarity. It cannot be that it is a big burden, because it is a very small addition to what is already in Section 1. I apprehend that the Minister's department will assist this process by having an explanatory document.
My noble friend Lord McIntosh nods his head—there will be such documents. It would be quite reasonable—indeed, it would be in the employers' interests—that everyone should know where they stand under the contract of employment as fashioned by the Act. I appear to be getting approval even from the official Opposition for these notions. They are not very revolutionary—they are very modest. They will allow everybody to know where they stand. I begin to feel that possibly the Government could accept the spirit of the amendment. I beg to move.
Lord McIntosh of Haringey: Let us start with the common ground, because the ground of difference is relatively minor. The common ground is that the essential purpose of the Bill is to ensure that all operators operate, and all employees have access to, certain statutory minimum disciplinary and grievance procedures. Once those procedures are in place, it is clearly essential that all concerned are made aware of
It is clearly right that it is in the written statement that the application of the new statutory procedures should be communicated. That is where important issues such as pay, hours and so on are formally set out between employer and employee. It equally forms the best mechanism for formally setting out the disciplinary and grievance procedures which will be operated between the two parties to the employment relationship.
I would like to stress, in case there is any doubt, that the effect of existing law, taken together with the amendments which we are introducing under Clauses 35 and 36 of the 1996 Act, will be to make it obligatory on all employers to issue a written statement that includes details either of the statutory procedures or of something better but not something less. That is not at issue. The problem with the amendment is that it goes beyond this basic position and would oblige employers to explain the effects of the statutory procedures.
The advantage of the current position is that those employers who simply operate the statutory procedures will know, clearly and unambiguously, what it is that they must set out in the written statement. They must set out the statutory procedures. There is no need for these employers to agonise or worry. They will be able to copy out the information which the Government and other agencies will provide. I confirm—I did so by nodding my head to my noble friend Lord Wedderburn—that we will of course be producing a document, I hope in plain English. We shall do in consultation with ACAS and the other relevant agencies. That means that employers will be able simply to cut and paste the relevant text from our website if they want to. They will know that in doing so they are fulfilling their legal obligations. Everybody will know where they stand.
If we were to force employers to explain the effect of the statutory procedures, we would be introducing the possibility of doubt and differences between different employers. I believe that the Bill sets out the statutory procedures in clear and simple terms, but it is far from obvious what "explaining their effect" would mean in practice. I notice that in all the citations that my noble friend made from legislation, none involved explaining the effect. Since this would be a statutory requirement, employers would worry about what it meant. Some would want to cover their backs by setting out at length, in lawyer-speak and with all sorts of caveats and complications, all the possible effects of the statutory procedures in practice, which would be very difficult to do. Others might take a more minimalist view. It would not be clear who was right.
The written statement is designed to be a simple, clear and understandable picture of the employment relationship between the two parties. It would not be right for us to turn it into a legal textbook and, though I recognise that that is not the intention of the amendment, I am afraid that that could be the result. I noted what my noble friend Lord Wedderburn said about going away and looking at Schedule 2. That certainly would not be an acceptable way of presenting the statutory requirements.
"INTERIM RELIEF
In section 128(1)(b) of the Employment Rights Act 1996 (c. 18), after "or in" there is inserted "section 146 or in"."
Before Clause 35, insert the following new clause—
"STATUTORY PROCEDURES
(1) Section 1 of the Employment Rights Act 1996 (c. 18) (statement of initial employment particulars) is amended as follows.
(2) In subsection (4) there is inserted—
"(hh) an explanation of the effect of all relevant statutory procedures under the Employment Act 2002.""
"(ii) a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment, and the manner in which any such application should be made, and
(c) where there are further steps consequent on any such application"—
that is, of a grievance procedure—
"explaining those steps or referring to the provisions of a document explaining them which is reasonably accessible to the employee".
7.15 p.m.
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