---

Lord McCarthy: Perhaps I may ask the Minister some questions which came to me when he announced that he intends move an amendment on Report to take the Armed Forces out of the effect of Clause 47.

First, I wonder how they got in there and why they are coming out now. Did they get in there because the flexible working and the Work and Parents Taskforce suggested that they should be included in there? If so, have the Government been back to the task force and asked it whether it thinks they ought to come out?

Secondly, it was not really explained, which may be difficult or embarrassing, why the Armed Forces are in some way covered. Is it that they might end up in employment tribunals asking for sanctions, which is something they could not normally do? Is that what it is about? In which case, why did the provision go in in the first place? And if it is to be taken out, what is the parallel procedure? The Minister said something, which I did not quite follow, about there being something which would not be on the face of the Bill but it would be somewhere in practice in relation to the Armed Forces. What would that be like and what would the sanctions be in that case?

Finally, is this merely an exclusion of the Armed Forces themselves? What about all the civilians who work for the Armed Forces—will they be excluded too? Those are the questions that come to my mind.

4.30 p.m.

Lord Sainsbury of Turville: Perhaps I may deal with those points first. The Work and Parents Taskforce report recommended that the right to request flexible working should apply as universally as possible, and that approach has been taken. This amendment has been seen to come subsequently because the Armed Forces work under unique conditions. It is right that the Government should recognise this.

We were not able to make the amendment any sooner, because we wanted to ensure that no other options were available. The task force has been told about the Armed Forces exemption and has raised no concerns about it.

Lord Wedderburn of Charlton: Before my noble friend leaves the clause, can he say something about the other of his most important announcements as to what the Government intend to do in amending the clause? I refer to his announcement of the extension of the arbitration scheme which ACAS was required to draw up and which has been in existence for some time now, which entails, where the parties opt for it, the exclusion of a right of access to employment tribunals.

22 Apr 2002 : Column CWH538

Now, plainly, he and his advisers must have looked with great care into this extension, so important is the scheme. Can the Minister tell us what grounds there are for having confidence in the scheme so far to the extent of extending it to this area? How many employers and employees have opted for the scheme so far and is it not the case that very little confidence has been generated in the scheme with its exclusion of right of access to tribunals? Of course he may say that there is a limit to the time in which it has been in existence, but the time has been sufficient, surely, to make a judgment. What were the grounds for the Government thinking that success had been sufficient to extend it?

Lord Sainsbury of Turville: The simple answer is that there have been only 14 cases so far. There has been limited take up and it is probably too early to assess the success or otherwise of the scheme. Equally, it gives people another area of choice and it is difficult to see why they should not have that additional choice included here.

Baroness Miller of Hendon: The Minister did very well in following my long list of 15 amendments—in fact better than I did. Listening to his answers, I got lost somewhere in the middle. Therefore, I think that the best thing for me to do is to beg leave to withdraw the amendment and read carefully what the Minister said in Hansard tomorrow.

Amendment, by leave, withdrawn.

[Amendments Nos. 240 to 251 not moved.]

Baroness Miller of Hendon moved Amendment No. 252:

Page 53, line 30, leave out from "a" to end of line 31 and insert "fellow employee or a representative of a recognised trade union"

The noble Baroness said: Amendment No. 252 seeks to alter paragraph (k) of the list of 14 items that the Secretary of State is to include in regulations about the employer's duties in relation to an application to vary the employee's contract.

Subsection (2) begins with the preamble:

"Regulations under subsection (1)(a) shall include",

and then,

"(a) provision for the holding of a meeting between the employer and the employee",

and,

"(g) provision for the holding . . . of a meeting between the employer and employee to discuss the appeal"

from a decision of the employer. Paragraph (k), which the amendment seeks to amend, requires, not merely permits, the Secretary of State to include in the regulations:

"for the employee to have the right to be accompanied at meetings under paragraph (a) and (g) by a person of such description as the regulations may specify".

It is the words,

"person of such description as the regulations may specify"

that I wish to see removed and replaced by,

"a fellow employee or the representative of a recognised trade union".

I have two questions for the Minister.

22 Apr 2002 : Column CWH539

First, apart from a fellow employee or a trade union representative, who does the Secretary of State consider that she might wish to specify in these regulations? If there is some other category, there is no reason why that should not be specified clearly in the Act.

Before the Minister tells us that the paragraph is intended simply to give flexibility, I come to my second question. Section 10 of the Employment Relations Act 1999 describes, according to the marginal note, the employee's right to be accompanied at disciplinary or grievance proceedings. Subsections (2) and (3) of that section state that the employer must permit the worker to be accompanied at the hearing by a single person, chosen by the worker, who is:

"employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992 . . . [or is] an official of a trade union . . . whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings, or [is] . . . another of the employer's workers".

Those are the Government's words as set out in their own Act passed three years ago. The Minister may intend to use the epithets "specifically", "prescriptively", "inflexibly" or another such word in relation to any amendments that I propose that are intended to tie down the Government to a specific course of action sanctioned by primary legislation and not by ministerial decree.

My second question is: if it was good enough for the former Secretary of State to specify in the 1999 Act the qualifications of the employee's companion at a proceedings, why will the present Secretary of State not do so in the present Bill?

I have a third supplementary question for the Minister. If the Secretary of State is seriously contemplating at present or possibly in the future any difference from the 1999 Act's description of who the employee's representative should be when he attends such proceedings, what possible advantage is there in making such a change? Indeed, what justification is there in creating a possible inconsistency between the two Acts? That matter causes me some concern. I beg to move.

Lord Sainsbury of Turville: The amendment would limit the people who can accompany the applicant at relevant meetings with the employer to a fellow employee or a representative of a recognised trade union. Basically, we have followed the task-force approach in relation to this matter. The task force considered it important that employees, who may be at a disadvantage in discussions about their application to work flexibly, should have the right to be accompanied if they wished.

Because flexible working is a relatively new area, the task force did not want unduly to limit the people who could accompany the parent making the request. The noble Baroness asked who else might be invited to come along. The parent, for example, might know someone who has expertise to accommodate flexible

22 Apr 2002 : Column CWH540

working in innovative ways and who might be able to make a real difference to the consideration of a case for flexible working.

That is why the task force suggested in its report that parents should have the right to be accompanied by,

"a fellow employee, friend or recognised trade union representative".

In those circumstances, it seems to me perfectly reasonable to ask to bring along a friend. I would be the first to admit that as it is different from the right to be accompanied in disciplinary or grievance hearings under the Employment Relations Act 1999. Indeed, I take the noble Baroness's point that it might cause some confusion.

Equally, I fully understand why the task force was trying to find a wider formula to encompass the type of expertise that I have already mentioned. In addition, the discussions under these new provisions are manifestly not disciplinary or grievance hearings. That is why one cannot make an exact comparison with the Employment Relations Act 1999.

In the light of that, the Government consider that the best route is to set out in draft regulations who should be allowed to accompany the parent. That would allow further consultation to take place. I intend the consultation to be wide in order to allow the issues of consistency versus wider expertise to be explored fully. I hope that that explanation provides a good reason as to why the amendment is unnecessary.

---