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Lord Sainsbury of Turville: This is a convenient moment for us to adjourn until four o'clock this afternoon.
[The Sitting was suspended from 12.53 until 4 p.m.]
[For continuation of the afternoon's proceedings see the second part of the Official Report published on Friday.]
Employment Bill
[Continuation of Official Report from col. 460]
Clause 41 [Interpretation of Part 3]:
Lord Borrie moved Amendment No. 199:
- Page 44, line 19, at end insert—
The noble Lord said: I feel rather like the man who plays the cymbals in a great orchestra who, after all the big instrumentalists have had their big performances and taken some time about it, is called upon to strike a single note. I can only ask that Her Majesty's Government will find that this single note chimes with their own thoughts.
I am grateful for the drafting abilities of those at Public Concern at Work, the so-called "whistle-blowers'" charity, for the work behind the scenes. We are concerned with the general purpose of Part 3 of the Bill being to require employers to introduce adequate internal grievance procedures and to require employees to use these internal procedures before doing anything else.
The purpose of my amendment is to place no such requirement on an employee who seeks to disclose wrongdoing in his workplace, for example to the appropriate regulator. In other words, the amendment seeks to make it clear that the new statutory grievance procedures should not undermine the disclosure regime provided for in the Public Interest Disclosure Act 1998, which was also inspired by the charity, Public Concern at Work, and which I had the honour to pilot through this Chamber.
Several commentators and lawyers have expressed the view that the Bill before us, the Employment Bill, as it stands requires an employee who wants to make a proper whistle-blowing disclosure to use the employer's internal grievance procedures. I argue that there is a major distinction in the whole purpose and point of whistle-blowing, which is raising a public interest concern that wrongdoing should be investigated, and grievances, which seek redress for oneself for a wrong done to oneself. Chambers Dictionary underlines the distinction by defining whistle-blowing as:
At Second Reading I referred to this matter and I was grateful that my noble friend Lord McIntosh said,
My amendment to Clause 41, the interpretation clause for Part 3 of the Bill, will clarify the matter across the statutory grievance procedures provided for in the Bill. At present both the National Health Service and the Financial Services Authority are preparing to launch initiatives on whistle blowing, flagging up the option to make protected disclosures directly to the regulators. As this amendment happens to have come before the Committee today rather than a week or two ago when I thought it might, I am able to quote to Members of the Committee from the April 2002 document of the Financial Services Authority. I shall do so as briefly as possible:
It would be a pity if, in the light of the Bill before us, employers and employees were being advised that, in raising concerns about wrongdoing in the workplace, public interest disclosures should first have to be raised internally. Whistle-blowing should not, in my view, be confused with grievance procedures. I beg to move.
Baroness Miller of Hendon: I rise with some diffidence to support the amendment of the noble Lord, Lord Borrie. That diffidence arises not through not wanting to support the amendment—I very much want to do that. My diffidence concerns something that I mentioned earlier. It seemed to me that, when I supported an amendment from the other side, the amendment did not seem to find favour with the Government. On the other hand, when I rose to say that I did not like the amendment, it immediately found favour. I hope that the noble Lord, Lord Borrie, will not be cross with me later for intervening to support him because I hope very much that the Government will accept his amendment.
The noble Lord, Lord Borrie, quoted something that the Minister said earlier in Committee. With regard to that quote, I made a note that the Minister gave the noble Lord, Lord Borrie, an assurance that both,
Lord Sainsbury of Turville: My noble friend raised a concern about the perceived effects of the statutory procedures on the ability of employees to make protected disclosures to outside parties in line with the Public Interest Disclosure Act. He believes that the statutory procedures might cause problems or confusion in some instances, requiring employees to
Perhaps I may say at the outset that the Government greatly value the protections contained in PIDA. The Act has generally worked well. We have no intention of weakening or undermining them in an way. Therefore, we shall ensure that the Bill and its associated regulations will not restrict the rights of employees to make protected disclosures.
In general, most cases of whistle-blowing have nothing to do with the treatment of the person disclosing the alleged wrongdoing. For example, an employee may be disclosing some fraudulent practice or other criminal activity committed by his or her employer. In such cases, the complaint cannot be construed as a grievance of the employee. Therefore, the existence of the statutory procedures should not affect adversely the ability of employees to make protected disclosures in those circumstances.
However, there may be other instances where the disclosure does, indeed, concern an individual's treatment. For example, an employee may wish to make a protected disclosure to the Health and Safety Executive about dangerous or unsafe working conditions to which he or she is personally exposed. These cases may not be common. But I recognise that some people might see a tension between the statutory grievance procedure and the PIDA rights.
I think the concerns may rest on the presumption that Clause 30 forces employees to raise with their employer each and every grievance they may have. That is not the way we intend the clause and the statutory grievance procedure to operate. The procedures would simply require employees to take certain procedural actions where they choose to raise a grievance formally with their employer. My noble friend wants us to ensure that we close off all possibility for the PIDA protections to be undermined. I share that aim.
We believe that this matter could be tackled in the regulations. However, there may be a case for addressing the issue on the face of the Bill. This may help clarify the issue at an early stage and assist organisations who are currently operating or devising dedicated disclosure policies. We are therefore minded to bring forward an amendment on Report which would address this issue.
We are very grateful to my noble friend in starting the ball rolling and drafting an amendment to Clause 41. However, we are not sure at this stage whether his amendment adequately deals with the issue. Our aim is to give employees a choice in cases where a protected disclosure is also a grievance. We want to ensure they are free to make the disclosure outside the statutory grievance procedure if that is what they want to do. Equally, we want to give employees the freedom to raise a protected disclosure as a grievance if they choose to do so, ensuring that the grievance is fully
In conclusion, the Government fully appreciate the point that he has raised. We intend to bring forward an amendment on Report and we will examine my noble friend's amendment as part of that process. I therefore ask my noble friend to withdraw his amendment.
""grievance" does not include a protected disclosure under Part IVA of the Employment Rights Act 1996 (c. 18) as inserted by the Public Interest Disclosure Act 1998 (c. 23);"
"Giving information (usually to the authorities) about illegal or underhand practices".
Chambers defines "grievance", on the other hand, as,
"a cause or source of grief, a ground of complaint, a condition felt to be oppressive or wrongful, distress, burden, hardship".
"the Bill and the accompanying regulations will ensure that there is no conflict with the Public Interest Disclosure Act".—[Official Report, 26/02/02; col. 1407.]
"We will encourage all whistle-blowers to exhaust their internal mechanisms before disclosing to us but we will not refuse to listen to a whistle-blower who does not want to disclose to his employer. It is better that the employee speaks to us than telling no one, or inappropriately making a wider disclosure, e.g. to the police, a Member of Parliament or the media. We think it very important that the whistle-blower who is genuinely concerned about malpractice in the workplace but reluctant, for whatever reason, to blow the whistle internally has a safe alternative. We would hope that firms would share that view".
"the Bill and the accompanying regulations will ensure that there is no conflict with the Public Interest Disclosure Act".—[Official Report, 26/02/02; col. 1407.]
I was very surprised to see that the Government did not return with an amendment to take into account the point that the noble Lord, Lord Borrie, makes. Therefore, I hope that the Government will be able to find favour with the amendment.
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