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Lord McCarthy: My Lords, I thank the Minister for his reply. However, it does not help in relation to the concerns about Clause 39. If it wanted, ACAS could make such agreements. It may be all right for ACAS to make them, but it will not be all right for employers and workers to make them on their own. The
Lord Sainsbury of Turville: My Lords, I can perhaps bring my noble friend some good news. I know that he has some concerns about the scope of the compromise agreements and particularly about Clause 39 of the Employment Bill. In the debates in Grand Committee I promised to consider the points that were raised, as I have done. I can now announce that the Government have decided to bring forward an amendment at Report stage of the Bill to delete Clause 39 on compromise agreements.
Our reasons for doing so are twofold. First, although we continue to believe that any agreement that tends to compromise away an employee's future rights would not be a valid agreement, we recognise that there is some degree of uncertainty and recent case law has done nothing to remove that uncertainty.
Secondly, and more importantly, we recognise the risk that although such an agreement would, in our view, be invalid, an employer may none the less attempt to persuade his employee to sign such an agreement. If that happened the fact that its legal validity was highly questionable would not alter the fact that having signed the agreement, the employee may then be deterred from going to the tribunal in the future in the belief that he no longer had a right to do so.
That concern was raised in Grand Committee by my noble friends Lord Gladwin of Clee and Lord Davies of Coity. As I made clear during that debate, the Government are determined that no employee shall be deterred in that way. Therefore, we have concluded that we cannot risk Clause 39 of the Employment Bill being so misused and we shall delete it from the Bill.
Baroness Miller of Hendon: My Lords, does the Minister recall that in the White Paper, Fairness at Work, the Government said that individuals will continue to have the right, if they so wish, to make agreements with their employers. That right was enshrined in Section 17(4) of the Employment Relations Bill 1999, which was the result of an amendment that I moved and eventually it was accepted by the Government.
Lord Sainsbury of Turville: My Lords, there is no doubt that employees will continue to have the right to compromise agreements. This matter concerns whether the compromise agreement can be extended to cover other acts that have taken place previously.
Lord Razzall: My Lords, I welcome the undertaking given by the Minister to withdraw Clause 39 from the Employment Bill at Report stage. For the benefit of those Members of your Lordships' House who did not have the pleasure of attending 10 days in Grand Committee on the Bill, as the Minister did, I ask whether he is now prepared to give any indication as to other representations that he has reconsidered? Perhaps I can add a cheeky supplement: is there any
Lord Sainsbury of Turville: My Lords, I am happy to say that the noble Lords, Lord Wedderburn and Lord McCarthy, raised the issue. While we do not agree with the particular legal interpretation that they put on the matter, they were the people who raised it. However, the point raised by the noble Lords, Lord Gladwin of Clee and Lord Davies of Coity, was most important, because they drew attention to how the clause could be misused, even if it was not legally valid and that persuaded us. I shall not give any other points of information on the Bill.
Lord Davies of Coity: My Lords, I welcome the statement made by the Minister that Clause 39 is no longer to be contained within the Bill. That is a sensible approach, given that we have worked hard over a long number of yearsgoing back to the times of the Truck Actsin order to secure employment rights for people whether in relation to unfair dismissal, discrimination, unfair selection for redundancy, or unlawful deduction of wages, all of which could have gone because employees would not have been entitled to take those problems to an employment tribunal. Does my noble friend agree that, if the clause had remained in the Bill, compromise agreement would have been inappropriate and surrender agreement would have been more appropriate?
Lord Sainsbury of Turville: My Lords, I should repeat that our legal interpretation is that even the recent case of BCCI v. Ali does not affect this essential point. While it was a COT3 agreement, it was also a common law claim. The Law Lords did not address this particular situation, which is the ability of a compromise agreement to compromise future claims arising from a breach after the signing of an agreement. That was not relevant and that is where the concern arises mostly. Nevertheless, as the noble Lord made clear in Grand Committee, it could be abused, which would be intolerable if people's future rights were in any way barred due to compromise agreements.
Lord Tebbit: My Lords, can the Minister say why he considers that it is the business of the Government to prohibit a free, working man from selling an asset that he possesses to his employer for his own gain? Why is that the Government's business?
Lord Sainsbury of Turville: My Lords, it is absolutely fundamental, as these rights are in statute, that employees should not be subject to any kind of bullying or pressure from employers that would lead to compromise agreements which would mean that those rights were surrendered. They are rights that are conferred on individuals by Parliament and they should not be sold; nor should employees be brought under pressure in that way.
Lord Geddes: My Lords, has it now become government policy to use Question Time in your Lordships' House to announce decisions about a particular Bill that is still in the course of discussion and consideration by this House? Is that not an abuse of Question Time?
Lord Sainsbury of Turville: My Lords, as my noble friend had raised his Question, it was appropriate and in the interests of the House that I should say what the government action would be on Report. I was not in any way saying what this House would decide when it came to Report stage; merely that that was the Government's action. If I had concealed that fact when such a question was asked, I could have been attacked for not being frank with the House.
Earl Russell: My Lords, will this welcome concession include any further attempt to deter employers from persuading employees to waive their rights to statutory sick pay by threat of dismissal, thereby forcing them to come to work when unfit to do so, to the considerable and unnecessary cost of the National Health Service?
Lord Sainsbury of Turville: My Lords, my Answer was about Clause 39 and specifically about this particular kind of compromise agreement. It concerns a rather modest part of the Bill and it was right to take it out. I spoke solely about that.
The purpose of Amendment No. 32 is very simple; it is to ensure that patients forums are not limited in their functions and will be able to carry out activities currently carried out by community health councils, activities not otherwise provided for in the Bill. The examples I gave in Committee were running or engaging in local or national public campaignsfor example, a campaign to oppose the closure of a hospitalmaking donations to campaigns; calling for public consultations; inspecting premises other than those specifically provided for, even if they have the consent of the service provider; or taking legal proceedings to enforce their rights.
At the moment community health councils have an overarching remit to represent the interests of patients and the public in the health service. That has enabled them to adapt to changing circumstances such as the need to develop services for complainants. Without that overarching remit patients forums could be acting ultra vires if they engage in activities other than those prescribed.
The purpose of Amendment No. 55 is to give the responsibility for making representations about local concerns to patients forums. It should be the responsibility of patients forums to raise issues locally and not the job of the commission. Amendment No. 55 leaves the commission with a responsibility to make representations at a national level if necessary. For example, if an overview and scrutiny committee refuses to scrutinise an aspect of the local health service, the commission could then make representations at a national level. That would not detract from the capacity-building work and outreach to socially excluded groups that the commission will do at a local level.
The purpose of Amendment No. 33 is two-fold. First, it deletes subsection (e). That is necessary to ensure the independence of patients forums. As the subsection is worded, that independence would be compromised if forums were seen in any way to be performing the functions of trusts. I ask the Government to think again about that. The purpose of the new subsection is to allow patients forums to monitor the provision and the efficacy of independent advocacy services in their area. Those services could be provided by or arranged by the Secretary of State, the Commission for Patient and Public Involvement in Health or, anticipating a later amendment, patients' councils.
The reason for Amendment No. 33 is simple. It is important that the independent complaints advocacy services are independently monitored. The performance of that function by patients forums would provide a useful tool for informing their other scrutiny functions. It is a fairly modest suggestion to
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