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Lord Lea of Crondall: I am grateful to the Minister for giving way but, before he leaves this point, I want to clarify something. My noble friend Lord Wedderburn explained, as we all know, that it is one thing to have a statutory requirement to glue something to the noticeboard. We earlier discussed whether "explain" is the right word or whether another word should be used. In relation to XYZ Electronics in Kings Lynn, Schedule 2 requires somebody to say, "If you have a grievance and you are in the transport depot, you have to write to Mr Struthers. You must do that within X days. Then we will have a meeting within Y days". That is not the same as saying that we rest on something that is a standardised DTI/ACAS procedure which is circulated on the website and glued to a noticeboard at the headquarters in Kings Lynn.
Lord McIntosh of Haringey: No. Clearly, the procedures which the noble Lord, Lord Lea, describes are part of what it is required employers should do. That is the procedure. That is not explaining the effect. Clearly, if you set out the requirements and you set out the procedures whereby they are brought into effect, you then say, "You go and talk to Mr Struthers" or whoever else it may be. That is not the same thing as is asked for in the amendment, which is explaining the effect.
If there is any explaining of the effect to be done, it should not be done on an individual basis by individual employers, who may come to different conclusions from the next door employer about what the effects of statutory procedures would be. If there is any explaining of the effects to be done, surely it should be done—as it will be done—in a booklet produced by the Department of Trade and Industry in collaboration with ACAS and with the other agencies, which will be made available to employers and to employees. Is not that the right way to do it?
I make one final point before I sit down. It needs to be made clear that the obligation on employers is not to operate the statutory procedures, full stop; it is to operate the statutory procedures or something better. Many employers will have procedures in place which go beyond the statutory minimum. To oblige employers to spell out the effect of these statutory procedures would be a distraction from the task of setting out what the detailed procedures are—that is what my noble friend Lord Lea and the Government want—and that could easily lead to confusion about what procedures actually apply in a particular case.
I hope that the distinction between procedures and explaining the effect is clear.
Lord Wedderburn of Charlton: It is clear, but the effect of the relevant statutory procedures means explaining to the worker how they affect him. My noble friend asked me for a precedent. The Act has a precedent. In the note which accompanies the written particulars, the employer is obliged to include in a note—and I quote from Section 3(1)(b)—
- "specifying (by description or otherwise)—
- (i) a person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him, and
- (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."
I appreciate that the department, in its usual helpful way, is going to give to every employer the advantage of having a piece of paper in which—without being a legal textbook that the Minister referred to—the general understanding of the department of the nature and effect in general terms of the relevant statutory procedures will be set out. Employers will be able to rely on that as part of what they give to the employee at the time of engagement or some weeks afterwards, as they are entitled to do.
In addition to that I thought that we needed an explanation of the legal effect. "Effect" may be the wrong word. The Minister has understood it to mean precisely beyond what his department can say about the legal effect—some further words on the legal effect. As usual, he may have a better word than effect.
The amendment was meant to take up the model of Section 3 of the Act, to which he has not referred; namely, the effect of the relevant statutory procedures at that place of employment. He says that there may be further procedures. Very good; let them be set out. Presumably they will be set out in the note on disciplinary and grievance procedures. However, the Act as it stands will not refer explicitly to Schedule 2 of the 2002 Act, even though—I know that Ministers do not like to refer to this—the Government have made it obligatory in every contract of employment. We believed that the employer might welcome the chance of saying, "Here at this place of work, these are the relevant statutory procedures and this what the Department of Trade and Industry employment relations department or section says they generally mean in their application to all contracts of employment. This is the effect of them here. If you have a grievance under these statutory procedures, just as in regard to Section 3, you go and see Joe Bloggs or Mary Poppins".
The employer cannot use Section 3 to refer to some other document. In a sense, we consider it to be wrong and unfair to both parties that the employer should be able to use Section 3 to say that one must go and look at some other document. We believe that the note, or, as we say here, the written particulars—of course, we would not object if it went into the note—should set out some explanation of what the "effect" means here and now, today, tomorrow and at this place of work.
There is probably a better phrase which will cure the ambiguity which has arisen between my noble friend the Minister and myself.At this place of work, surely the employer and employee should have a document to which they can refer in a case of complaint. After all, we are not dealing with a situation where everything is at peace and all is right with the world. The Bill impacts on situations where there is a complaint, or where, under the previous Clause 34, there is an unfair dismissal or where there is a grievance. There, the statutory procedures come into play. We believed that it would be advantageous if both the employer and employee could have a document which not only said what the statutory procedures were but which also set out what they meant in general legal terms or in lay language—the department will provide that—and if in the written particulars there was also an explanation of the effect at that place of work.
I take it that the Minister does not accept that if the amendment made it absolutely clear that it would be desirable for the employer to say, "Here at this place of work, this is the way that we apply"—he nods; I am confused.
Lord McIntosh of Haringey: I believe that I said so in answer to my noble friend Lord Lea, but let me set it out. The parts which state that if one is in the transport department one talks to Mr Struthers are part of the procedure. They should be set down.
As I listen to my noble friend Lord Wedderburn, I believe that the difference between what he calls "effect" and what I call "procedures" is getting a little closer than seemed to be the case at the beginning. I agree with him that certainly the document which is required from an employer should not hide behind references to other documents; in other words, it should be as self-sufficient as it reasonably can be. When it comes to interpretation, as he calls it in non-legal language, so far as possible that should not be the statutory responsibility of an individual employer, as proposed in the amendment, but the responsibility of the department, of ACAS and of all the agencies.
I hope that if we agree on that, we can agree that that is a better way forward than the amendment which we have before us. I do not find myself disagreeing in objective with what my noble friend Lord Wedderburn is arguing; it is simply the wording of the amendment which could be confusing.
Lord Wedderburn of Charlton: I am immensely grateful to my noble friend the Minister. If it is only the wording of the amendment, we can rely upon its spirit. If only we could spend this time over Easter together, when all this work is going to be done. My noble friend must not reject these offers! My noble friend would do well to listen to us over Easter and indeed, for much longer.
In view of what he has said, I feel sure that the Government, when they reconsider these matters, will come up with a proposal. It will not have the word "effect" in it, I see that because the word "effect" is
ambiguous. I have some confidence that the Government will come back with something which at least is in the spirit—
Lord McIntosh of Haringey: I do not want to give a false impression. I think the Bill provides that already. I do not think there is anything we need to come back with but it is something that I ought to write to my noble friend Lord Wedderburn about in order to make that entirely clear.
Lord Wedderburn of Charlton: I shall look forward to the postcard from wherever the Minister is over Easter! But I do not think that the provision is in the Bill already. The Minister will look long and hard
before he finds it there already. This is a good amendment, badly phrased. I believe that he will think about it when he relaxes a bit and find that this is something to which the Government will feel constrained to respond. With that, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clauses 35 to 37 agreed to.
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