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Lord McIntosh of Haringey: I will not repeat the context in which we have been debating Clause 38. I think the Committee is well seized of that. I will concentrate on what this amendment would actually do. What the Government are doing in Clause 38 is to provide, for the first time, a penalty for not having an accurate or complete written statement in the circumstances where a case comes before the tribunal for one of the other reasons for which a case could come to the tribunal.
The amendment would restrict the awards where the successful claim itself attracts no awards to those occasions where the employer's breach of the written statement was the main reason for the tribunal's finding for the employee. But that change would undermine the whole purpose of the clause and would remove the benefit which employers are gaining from the clause. It would make it virtually impossible for the tribunal to make an award for a failure to meet the written statement requirements.
For example, a tribunal is very unlikely to find, where it is considering an unfair dismissal claim, that the main reason for finding in favour of the employee is the absence of the written statement. It may well deduce that the lack of a written statement contributed to a breakdown in communications between employee and employer, which in turn led to disciplinary action and dismissal but that would not make it the main reason. It is more likely to be the case that the employer does not have one of the potentially fair reasons for dismissing an employee set out in the Employment Rights Act 1996.
In many cases, the connection between the written statement failure and the actions complained of may not become clear at tribunal proceedings. It would be inconsistent and unfair to do what the amendment suggests because the outcome would be that there would always be a penalty if the employee received an award for his claim, but where the employee does not receive an award there would be a penalty only if the offence were the main reason for finding in his favour.
We do not intend to limit compensation to situations where the employer's breach of the written statement requirements is relevant to the matter complained of. The written statement is a key document, clarifying the relationship between employee and employer and helping to avoid workplace disputes. We believe that if a tribunal finds that, in addition to the subject of a dispute, the employer has not met his written statement obligations, it is right that he should incur some penalty, regardless of whether the breach is material to the case being heard.
Where the clause gives tribunals the discretion to vary the increase, they will be free to use that discretion to relate its level to the effect of the employer's breach on the matter complained of. However, we have deliberately not limited compensation to occasions
where the employer's breach of the written statement is relevant to the matter complained of by the employee, for the reasons I have given.Most employers do comply with the requirement and will not be affected by it. However, it is right that those who do not are penalised, because the written statement is fundamental to rights and responsibilities in the workplace. While the majority of responses to Routes to Resolution were in favour of this measure, a few suggested that allowing employees to claim compensation for an offence against the written statement alone would be more effective. However, I believe we are striking the right balance here in encouraging compliance, by putting employers on notice that they neglect their obligations under the written statement provisions at their peril—without in effect creating a new stand-alone right to compensation. I do not think that what we are proposing is an excessive penalty, but it is enough to make a difference and the amendment would make that impossible.
Baroness Miller of Hendon: I find the Minister's answer totally fair and I accept that he is trying to steer a middle course. I will be most interested when I see what comes back on Report because it seemed that, after a good deal of pressure from noble Lords on his side of the House, he was moving a little further from what I would consider the neutral position. Nevertheless, it was a very fair response from the Minister and I intend to withdraw the amendment.
On several occasions much earlier in the proceedings, I listened with great interest to Members of the Committee opposite who spoke for a very great length of time. I listened with great interest because I believe that they have a great knowledge and I wanted to hear what they said. Indeed, on one occasion I asked them to accept in good faith that I was also speaking from an important point of view. I noticed that there were many sniggers when I was talking and some remarks were not sotto voce. In a small Committee room, that is not appropriate. That is all I would say—I would like them to give me the same courtesy as I give them when they speak. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 194 to 197 not moved.]
11.45 a.m.
Lord Razzall moved Amendment No. 197A:
- Page 43, line 12, leave out subsection (10).
The noble Lord said: The purpose of this amendment is straightforward and I shall not detain the Committee for long. We have already accepted that Clause 38 is fiendishly complex, as the Minister indicated in his remarks following my moving Amendment No. 192A. Given the fiendishly complex nature of the clause, we from these Benches do not believe it is appropriate that the Secretary of State should be able, by order, to dip in and dip out of the
clause as he, or his successor, so wishes, in a matter of this complexity and importance. The meaning of the amendment is quite straightforward. I beg to move.
Lord McIntosh of Haringey: This comes back to the issue we were discussing in respect of Amendment No. 192A, about what is included in Schedule 5 and what is not. Schedule 5 lists the types of tribunal claims—in other words, what are technically called the "tribunal jurisdictions"—to which we currently believe Clause 38 should apply. It includes many of the major ones which attract the largest number of complaints, including unfair dismissal, non-payment of wages and all types of discrimination in the employment field. The amendment seeks to remove subsection (10) of Clause 38, which gives the Secretary of State powers to amend this list by varying the jurisdictions covered, by specifying claims of a certain description under any of the jurisdictions otherwise covered to which the increased awards are not to apply. It also gives power to extend the measure to non-employees.
Our starting point is that we seek to underline the importance of communicating the minimum disciplinary and grievance procedures to employees. Therefore, the jurisdictions listed in Schedule 5 are currently the same as those listed in Schedule 3; that is, the provisions allowing for adjustments of award for non-completion of the statutory procedures.
Just as occasions may arise where it may be appropriate for the statutory procedures to apply to a particular type of claim in all circumstances—and we have need of the power to amend Schedule 3 which we discussed when we debated Clause 31—so we may find that it is appropriate to amend the list of jurisdictions in Schedule 5, as I have already indicated. Those variations may differ from the changes we want to make to Schedule 3—otherwise we would have only one schedule instead of the two—because different regimes may work better for some types of claim and descriptions of claims than they do for others. I believe it is important that we maintain a separate power to vary the detail of Schedule 5 by regulation, which is what this subsection does, and the Delegated Powers and Regulatory Reform Committee has, of course, considered the matter and concluded that the powers are appropriate.
If we were making changes to the schedule, we would consult and consider the results of the consultation. On that basis, I hope that we shall not be denied this power, as would be the effect of the amendment.
Lord Wedderburn of Charlton: Before my noble friend sits down, when the Government reconsider Clause 38 in light of the proposed amendment of the noble Lord, Lord Razzall, will they consider whether it is proper for the Secretary of State to have power to remove from the list the jurisdictions that depend upon European Union directives? Does he believe that the European Court of Justice in Luxembourg would accept a removal, which the Secretary of State would have powers drafted to make, from the list of those three items that depend particularly upon European
law? That would mean that a worker could be deprived of knowledge in the written particulars by way of a deprival of sanction such that his rights would be effectively diminished in that respect in relation to those items.
Lord McIntosh of Haringey: The answer to that is that under the Human Rights Act 1998 not only does primary legislation have to be accompanied by a declaration from the Minister that it is in conformity but the same applies to secondary legislation as well.
Clearly it is not the same point but, following on from that, we should be very ill advised to put forward secondary legislation to amend the matters in Schedules 3 or 5 if that brought us into conflict with European legislation. Therefore, if the question that I am being asked is whether we shall take that into account, the answer is that we shall certainly do so.
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