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Lord Davies of Coity: I want to reinforce the concern that has been expressed by my noble friend Lord Gladwin. An employer's obligation to provide contracts of employment or a written statement is rather unusual. If I understood the Minister correctly, he said that no damage could be done. The chances are that in some circumstances a complaint will not be registered and, as a result, no determination by a tribunal will be provided.
However, if a complaint is made, a stand-alone penalty must of necessity be an obligation for the tribunals to impose upon the employer because they have not fulfilled a legal obligation they should have fulfilled. It seems to me that in its present form the Act—and I welcome it being looked at again to take away some of the unnecessary complex complications there—is giving the employer an excuse to advance an explanation as to why he did not fulfil his legal obligations. That is an absolute nonsense.
Lord McIntosh of Haringey: Clearly, in view of what has been said, I will look again at the experience of the 1996 Act, the point being here that it is already a requirement under the Employment Rights Act 1996 that employees should receive a complete and accurate written statement of their employment particulars. That of course is not being taken away. The difference between us is not that it is not a legal requirement that there should be a complete and accurate written statement of employment particulars, but that there should be a stand-alone penalty for failure to comply with that. There has not been a stand-alone penalty until now and clearly it is appropriate that we should
look at whether that has caused problems. The experience of the employment tribunals is obviously relevant to that.We are neither advancing nor retreating on this matter at the moment. What we are doing is proposing that where there seems to be—I do not know whether the right term is "collateral damage"—a combination of one of the matters covered in Schedule 5, in other words, nearly all of the matters going before an employment tribunal, and where that is accompanied by an inadequate or non-existent statement of written particulars, the employer should pay an additional penalty to the employee. It may not be called a concession but I believe that it is a step forward for employees. Certainly, between now and the Report stage, if there is anything else we can discover which is relevant to this we shall certainly do so.
Lord Davies of Coity: Before my noble friend sits down, there is one point that strikes me arising out of what has just been said. It may be that there is not a current provision for stand-alone penalties in certain circumstances. However, the emphasis of the Bill, as I understand it, is to ensure that something like 6 million people will have provisions for settling their complaints within the company that employs them. If that is where the emphasis is, it places obligations upon employers to ensure that employees have all the facilities and knowledge that they are entitled to. Consequently, if an employer does not provide that, then a stand-alone penalty for not doing so seems a very legitimate approach.
Lord Wedderburn of Charlton: Further to my noble friend's, with respect, well taken points, what my noble friend has said suggests to me that the Government need to think again whether they can find any experience in the tribunals, as he put it. Of course, the tribunals have no experience of this matter because there is no right in the tribunals to a penalty for failure to observe Sections 11 and 12 with just the right to a declaration. Even that has obscurities as to its precise scope.
My noble friend does not answer the point that to keep the worker in the dark—because that is what it is—as to his proper written particulars of his employment terms in itself damages the employment relationship. Of course, from the employer's point of view, it may not be much damage, and that is the point of view the Government have espoused. Will the Government think again, from its roots, on this matter of sanction in Section 12 of the Employment Rights Act?
11.30 a.m.
Lord McIntosh of Haringey: I do not believe that I have anything to add. It is not just for the employer's benefit that we do not seek to provide a stand-alone penalty. The noble Lord, Lord McCarthy, returned to the issue of 40,000. I think he will agree there is nothing in any of these provisions which provides any barrier to access to the tribunals which does not exist at the moment. To have a stand-alone provision that any
failure to provide a complete and accurate written statement would in itself be an offence which could be taken to the tribunal and could attract a penalty is a very major step.
Lord Razzall: Taking the point that has occupied the Committee for the last 10 minutes, I feel that those of us on this side—and indeed the Members of the Committee on the other side—have been somewhat remiss in failing to spot this point in the 264 amendments that had been tabled to the Bill. None of us has tabled an amendment on the point that has just been debated for the last 10 minutes; that is, whether or not there should be a stand-alone remedy. With the greatest respect, I am not sure the amendment that has been tabled would have that effect, but in any event I am delighted that the Minister will look again at this issue. I suspect that I know the answer that will occur when he has looked at it. I suspect the Government will not wish to reopen the question as to whether or not there should be a simple stand-alone remedy because contract employment law, ever since the requirement came in all those years ago—when the noble Lords, Lord Wedderburn and Lord McCarthy, were teaching us all about employment law—right from the start did not impose a stand-alone penalty for this. This would therefore be a significant change in the law. However, I would be interested in the comments of the Government and it is obviously for Members on either side of the Committee to decide whether they wish to move an amendment on Report.
On the substantive point of my Amendment No. 192A, in the light of the Minister's comments some 20 minutes ago, it would be extremely churlish of me not to withdraw my amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon moved Amendment No. 193:
- Page 42, line 5, at end insert "and
The noble Baroness said: In moving this amendment, I would like to make a comment on something that was said which has some bearing on Amendment No. 193. First, I certainly took some comfort from the fact that the noble Lord, Lord Razzall, and the Minister found great difficulty with Clause 38 and the notes on the clause, as I did. I found it difficult to cut through all of it and find the essence of what was meant. However, I note that Members of the Committee opposite had no difficulty whatsoever because they were able to talk for quite some time on this amendment. Bearing in mind that the noble Lord, Lord Wedderburn, suggested that Amendment No. 198 be discussed with Amendment No. 192A—he said in the interests of speed and not wasting time—my Amendment No. 193 is a very short amendment and is to the point.
Secondly, I drew comfort from the Minister's reply. Had he accepted Amendment No. 192A in its totality, I could not move Amendment No. 193, as the Deputy Chairman of Committees informed us. It is important because I want to touch on another point of view. I understand entirely what the noble Lord, Lord Wedderburn, said when he talked about employers. I understand totally where he comes from and I understand totally the interests of the section that he is representing, as indeed are the noble Lords, Lord Gladwin, Lord Davies of Coity and Lord McCarthy. However, as a former employer—and a good employer—it is worth mentioning that there are some employers who are very interested in the interests of their employees. However, something might happen that did not make any difference whatsoever to the employee but if this stand-alone provision made such a matter an absolute offence right away that might cause some difficulty.
Clause 38 applies—as stated in subsection (1)—to proceedings before an employment tribunal in relation to a claim by an employee under the eight Acts and four regulations listed in Schedule 5. The clause, as the Explanatory Notes describe, provides for employment tribunals to award compensation to an employee where,
The clause as at present before the Committee does not carry that description into effect. The amendment makes it clear that the defective written statement, or the absence of one altogether, must be the main reason why the employment tribunal found in favour of the employee. In other words, the section will not apply if such defect or the lack of a statement actually made no appreciable difference to the outcome of the case. I believe that when the Minister first spoke—from recollection, it was some time ago—he used the same wording: "made no appreciable difference to the outcome of the case". I believe that that is what he said.
The old-established legal maxim is de minimis non curat lex, which simply means that the law does not concern itself with trifles. This principle is used by the civil courts, particularly the appellate courts, to justify the refusal to countenance matters of very small import. There is no reason why the same principle, relying on the tribunal's common sense, should not be used to ensure that penalties are not increased due to what the tribunal considers is an irrelevant technicality, thus denying one of the parties justice. It is not what the employer considers is an irrelevant technicality; it is what the tribunal considers to be an irrelevant technicality.
I hope it can be accepted that, without in any way depriving any employee applicant of his rights to a fair hearing, there ought not to be rough justice to an employer when he commits what the tribunal itself decides on the facts of a particular case—not a sweeping amendment that is now stand alone but on
(c) the breach by an employer of the duty to provide a written statement is the main reason why the employment tribunal finds in favour of the employee in paragraph (a)"
"the lack, or incompleteness or inaccuracy of the written statement becomes evident upon a claim".
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