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Baroness Turner of Camden moved Amendment No. 204:
- After Clause 42, insert the following new clause—
The noble Baroness said: The amendment deals with employment rights for older people. The new clause as suggested would remove the existing legislation that denies older people protection against unfair dismissal. It would therefore provide people who work over the age of 65 with the same rights in law as those who are under 65. The right not to be unfairly dismissed does not apply to an employee who has obtained either the normal retirement age, whether it is above or below 65, or in any other case has reached 65. Neither can an employee in such circumstances seek a redundancy payment.
However, there is a growing consensus around the need to enhance employment participation rates among older people. There have been government attempts, with only limited success, to enhance participation of older people by campaigns among employers, and I was involved with some of those some while ago with the Carnegy Third Age Group which was also concerned with increasing employment among older people. The recent debate about pensions provision gives impetus to the argument.
There now appears to be a general acknowledgement that ending age discrimination in the workplace needs legislative action and the authority behind it if it is to be achieved. The Government are currently consulting on the implementation of the EU directive on equal treatment. The new law—expected to be effective no later than 2006—will prohibit discrimination at work against people on the basis of their age and also religion, sexuality, disability and so on. However, I understand that no question has been included in the consultation on the issue of employment rights for older people, and the present position of the Government is therefore unclear.
There are no grounds, either in principle or in practice, for older people to be discriminated against. Sixty-five is an arbitrary age at which people lose important rights. What is proposed in the amendment
It might be argued that during the consultation on the EU directive it would not be appropriate to make this change. That means that even if legislation eventually occurs, it will not happen until 2006, so that older people would have to wait almost a further five years before attaining rights available to younger employees. Employers may perhaps argue that they need the age "cap" in order to manage workforces, to get rid of workers who have become incapable and to promote younger workers, but employers already have the right to dispense with the services of employees not capable of performing the tasks for which they are employed. Everyone should be assessed on the basis of competence and there is no need for age to be a factor.
Many employers are reporting skill shortages in a number of key areas. It is therefore important that the skills and experience of older workers are not lost because of an arbitrary age bar. There is increasing discussion about the possibility of abolishing a mandatory retirement age, and the Government are currently consulting about retirement ages. However, the abolition of a mandatory retirement age is not enough to protect older workers. Without specific rights to protection from unfair dismissal, an employer would still have the freedom to dismiss older workers.
In view of the stated position of the Government relative to older workers, I hope that there would be an indication of support for this wording—at least in principle, even if not this exact wording—as a move in the direction towards protection for older workers. I beg to move.
Lord McIntosh of Haringey: As someone who is substantially over the age of 65 but is still managing to continue in work, I believe that it will be obvious why I am very much in sympathy with the thinking behind the amendment. Of course, this is an important issue and the noble Baroness, Lady Turner of Camden, is right to say that older people have a valuable contribution to make. However, perhaps I may explain, first, that the situation is not quite as bad under Section 109 of the 1996 Act as the noble Baroness seems to think. Secondly, the Government are very much seized of the issue which is raised by the amendment.
The right to claim unfair dismissal is only one of a wide range of employment rights, the great majority of which, including the right to the minimum wage and the right to paid leave under the working time regulations, are not subject to an upper age limit.
It is generally the case that employees who believe that they have been unfairly dismissed may not be able to bring a claim for unfair dismissal if they have reached the normal retiring age in the undertaking employing them for employees holding their positions,
The Government are currently working on implementing the European Commission's employment directive, which includes provisions to combat discrimination on the new grounds of age, sexual orientation and religion. As a result, we shall be introducing legislation—obviously I shall not say when—to combat age discrimination by employers. A consultation document, Towards equality and diversity, sought views on the implementation of all the new discrimination strands in the directive, including views on retirement age. The consultation finished at the end of March, and we are in the process of evaluating the responses.
Many complex issues need to be addressed and resolved so that the emerging legislation is practical and helpful to employers and employees. I am conscious that many people, including myself and the noble Baroness, Lady Turner, have strong views on the upper age limit to making an unfair dismissal claim. However, the question as to whether to repeal it can be properly considered only in the light of consultation and the work which the Government are doing towards the implementation of the directive. On that basis, I hope that the amendment will be withdrawn.
Baroness Turner of Camden: I thank my noble friend for the sympathy that he has once again displayed towards my amendment. However, I am very sorry to learn that there will be further delay before the amendment, and all that it implies, can be introduced. As I indicated, the consultation process will take some time and it is unlikely that there will be legislation before 2006. That means that older people will have to wait until that time.
Lord McIntosh of Haringey: I did not say that. I do not want to make any promises, but I said that the legislation had to be implemented by 2006.
Baroness Turner of Camden: Therefore, presumably it could be implemented before then. I thank the Minister very much for that in any event. I do not believe that I can say anything further about the matter at this stage. I said all that I wanted to say in moving the amendment. I am grateful for the assurance that has been given on the issues in relation to which people cannot be dismissed, even though they may be aged 65 or over. But, of course, the main thing is that employers can get rid of people simply by dismissing them at that age. They can simply say that they have reached retirement age and that is it. That is really rather unfortunate. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [Union learning representatives]:
Baroness Miller of Hendon moved Amendment No. 205:
The noble Baroness said: In moving this amendment, I would like also to speak to Amendments Nos. 205 to 209, 211, 213 to 215 and 218 to 220. This is a series of 12 amendments to Clause 43, which will add new Section 168A to the Trade Union and Labour Relations (Consolidation) Act 1992.
Before I explain my amendments, I have to say that I am surprised by the number of patches and additional clauses that are being added to various Acts by the Bill. I am sure that it would be helpful to employers, employees, their advisors and union representatives alike if the Consolidation Act 1992 could be re-consolidated, taking in all the employment legislation that has been enacted since 1997, so that all of the law can be found in one place. Consolidation Acts are uncontroversial, so long as all they do is amalgamate a whole series of Acts. All that is needed is a good draftsman with a liking for jigsaw puzzles!
We are currently considering the new Section 168A, which will introduce the concept of time off for learning representatives. Since this is a new statutory concept, as distinct from the voluntary system that has operated in some cases hitherto, it is proper that we should smooth off some of the rough edges that currently appear in the Bill. I will deal with them in the sequence in which they appear on the Marshalled List.
Amendment No. 205 would insert the word "reasonable" as a qualification to the amount of time off that a union learning representative may take for the purposes described later in the clause. Without the word "reasonable", the implication would be that the representative could take any amount of time off that he chose. I do not believe that that is being prescriptive; it is merely inserting in the legislation the word that the courts would imply if there ever were a dispute. It is a well known principle that what is reasonable depends on the facts of the individual case.
Amendment No. 206 would insert the words,
On Amendment No. 207, subsection (2)(a) describes some of the activities of a learning representative. All of the activities that are referred to in paragraph (a) are essentially ones that should be conducted at the place of work or, if that is not convenient for some reason, at the union offices. It is not right that work should be disrupted by the employees trooping off to some other location or conducting the training, for example, on a street corner. This, of course, refers to activities being conducted in normal working hours. What employees and the unions do in their own time has nothing to do with the employers.
Amendment No. 208 deals with the purposes for which an employee is entitled to take time off in connection with his duties as a union learning representative. Subsection (2)(b) of new Section 168A, which will be added to the Trade Union and Labour Relations (Consolidation) Act 1992, provides that one of those purposes is for consulting the employer about carrying on such activities. Consultation with the employer is a very desirable course of action and can most certainly lead to co-operation and avoid possible misunderstandings and friction.
One of the matters that should be the subject of consultation is integrating the learning representative's intended activities into the training that is being carried out, or that is intended to be carried out, by the employer. I have often spoken about the effects of the Government's employment legislation on small businesses. In this case, I imagine that it is more likely that larger employers will be affected by these provisions. It will be the larger employers whose employees may have trade union representatives, and it will be larger employers who may be going in for training activities. That is not to say that smaller employers will not have training activities of various sorts but, more often than not, they are likely to consist of sending employees on training courses.
What is important is that, when an employer is conducting his own training—whether that is work-and-skill related or simply involves helping an employee to make up for a lack of literacy or numeracy—that training should not clash with whatever is being offered by the union learning representative. By that I do not mean merely that the two lots of training should not overlap in content. I also mean that the union and the employer should not clash over the time when such activities are carried out by each of them.
I readily concede that there are many aspects of learning or training where consultation between the employer and the union is not merely desirable but absolutely essential. However, the purpose of the amendment is to underline the fact that neither the employer nor the union is to be able to claim that its activities have priority over the other. It is not intended to limit the activities of the learning representatives because, as the Minister will doubtless point out to me, the consultation does not bind either party to a particular course of action.
Amendment No. 209 inserted into subsection (3) gives the employer the right partially to veto the appointment of the union's learning representative.
"UPPER AGE LIMIT
Section 109 of the Employment Rights Act 1996 (c. 18) (upper age limit) is hereby repealed."
Page 46, line 12, after "take" insert "reasonable".
"subject to the employee providing appropriate written notice".
It may be that some employers on some occasions will dispense with the notice but Parliament cannot or should not authorise a situation where an employee can simply down tools and go off to act as a learning representative, whether or not that is convenient to the employer, and possibly with insufficient notice for the employer to make alternative arrangements.
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