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The noble Lord said: My Lords, the aim of the amendment is to make clear that Schedule 2 is not intended to undermine the right to a written statement of reasons for dismissal, as specified in Section 92 of the Employment Rights Act 1996. We are asking the Government for the same kind of reassurance that we sought on the previous amendment. No doubt the Government will say that they do not intend to undermine Section 92 of the 1996 Act. Nevertheless, they could accept the amendment and make that clear. If they do not accept the amendment, they can say so.
Section 92 states that an employee,
The schedule states that the employer must set out in writing the employee's alleged conduct or characteristics or other circumstances that lead him to contemplate dismissal or disciplinary action against the employee. That relates to the view that the employer takes, to set the procedure in motion. At this point, the employer has not heard the worker's case. The employer must send a copy of the statement to the employee and invite him or her to attend a meeting to discuss the matter.
Under the normal statutory procedure, there follows a meeting or hearing—after which the employer must inform the employee of the decision. The employer does not necessarily have to provide the reasons or explain his reaction to the employee's case. The employer can simply say, "I have decided that you
If I had time, I would explain why the modified procedure is even worse. It seems to be assumed that the employer can merely say, "I am dismissing you. That's it". The modified procedure does not even embody a proper appeal. Under the statutory procedure, contemplation is all. The employer contemplates unfair dismissal: "I contemplate dismissing you for the following reasons". What if the worker says, "It wasn't me. It was someone else. I was never warned that this might happen. I have been working for the company 10 years and have never received a formal correction. I was provoked. I am entitled to know what you think about the excuses and justification that I advanced"? Nothing in the statutory procedures states that the employee should have an answer.
The Government can deal with the matter in a number of ways. We would like them to accept the amendment—or they could say, "We can't do it today but we will ensure that the regulations will make clear that employees will have the kind or rights already available to them under Section 92 of the 1996 Act". I beg to move.
Lord Falconer of Thoroton: My Lords, although Amendment No. 36 was not tabled in Grand Committee, my noble friend Lord Wedderburn sought and received assurance that the right to a written statement for dismissal—the Section 92 right, to which my noble friend Lord McCarthy has referred—was not adversely affected by the Bill and the statutory procedures. I repeat that assurance again today. Under Section 92 of the Employment Rights Act 1996, an employer must supply, at the request of the employee, a written statement setting out the reasons for a dismissal. That right to a written statement applies to employees who have been employed for a year or more, although that condition is waived in certain special circumstances surrounding pregnancy and maternity arrangements.
That section of the 1996 Act is not changed by the Bill. If a qualifying employee requests a written statement, she or he must be provided with one as now. The existence of a pre-existing Step 1 letter from the employer in which the reasons for a proposed dismissal are set out does not change the position. When the employee requests the written statement, the employer must write again setting out the reasons. Even if the reasons are as set out in the Step 1 letter, the employer must still write again, although on such occasions the employer may choose to shorten the reply by enclosing a copy of the original Step 1 letter. Therefore, we agree with the proposition stated in the amendment—Section 92 is unaffected by the statutory procedures.
However, the amendment is unnecessary. Generally, as my noble friend Lord McCarthy will recognise, it is bad practice to itemise aspects of pre-existing legislation in a Bill which are left unaffected by the Bill. We would depart from that principle only
Lord McCarthy: My Lords, I have no alternative, but I am not satisfied. I agree that the Government have said that what they are putting in the regulations will not adversely affect workers' rights under Section 92, but I do not see why the regulations cannot say that. I do not understand why that matter cannot be on the face of the Bill. I shall have to consider the issue again at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Statutory dispute resolution procedures]:
Lord Lea of Crondall moved Amendment No. 37:
The noble Lord said: My Lords, I shall speak briefly. Since Committee stage, Ministers have, as they said they would, revisited this territory. Since we tabled this amendment, the Government have tabled Amendments Nos. 41 and 47 on the disciplinary side and Amendments Nos. 54 and 58 on the grievance side.
I am trying to anticipate what the Minister may say. The Government are saying that they will now pinpoint the basis for including in the statement the grounds given in it. Clearly, that goes some way to ensure that the whole of the relevant circumstances of the case are put on the table. It would be helpful if the Minister could say whether that form of words will be introduced shortly, along with the words of giving an employee,
Baroness Gibson of Market Rasen: My Lords, I want to draw attention to the word "promptly". I have read Amendment No. 41, but it does not include the word "promptly". The reason I feel strongly about this matter is that in a previous life I dealt with cases in which an employer threatened disciplinary proceedings against an employee, but the facts of the case were not gathered promptly. There is nothing worse than continuing in an employment when it is
Lord Sharman: My Lords, I want to speak to Amendments Nos. 38 and 50. The amendments tabled by the Minister respond in some measure to the debate in Committee. Essentially the issue is whether or not a proper investigation has been conducted prior to the decision to dismiss. The purpose of adding the words,
Lord Wedderburn of Charlton: My Lords, I support the amendment in the name of my noble friend Lord Lea. The amendments grouped with Amendment No. 37 mean that the Government—my noble and learned friend will correct me if I am wrong—will speak to Amendments Nos. 41, 47, 54 and 58 that raise entirely new matters. My noble and learned friend nods. Therefore, we have a quite inconvenient grouping which requires a debate within a debate. I want to speak to Amendments Nos. 41, 47, 54 and 58 and I want to know what they mean. The new matter introduced by the Government in those amendments does not answer the case put by my noble friend and by the noble Lord, Lord Sharman, but introduces a problem of an extremely delicate and serious nature. These amendments are what I may call the "basis" amendments.
I believe I understand what is meant in regard to the disciplinary procedure. The procedure must not continue unless,
If we apply that provision to real life, we do not obtain the sort of answer that we received regarding discipline. What does the employee say? He sets out in his written statement, of which he sends a copy to the employer, "You treated me unfairly last Tuesday. You deprived me of my right to contractual overtime". Or he may say, "You have been threatening to treat me wrongly or dismiss me for exercising my rights to trade union activity". That is the grievance. What is the basis for the grievance? What else does he have to say? He has to say something else, because the new amendments require something more of the employee.
This is exactly the sort of problem Judge Prophet was worried about in the procedures being introduced. What can the employee say when he has already said, "My grievance is that you have stopped me exercising my trade union rights", or, "You have deprived me of my contractual overtime"? Does he have to set out the contract or put in a pleading? Does he have to ask, "What are the basis of my trade union rights"? Does he have to refer to Section 46 of the Trade Union and Labour Relations (Consolidation) Act 1992?
If he does not have to do that—I apprehend that my noble and learned friend will be aghast at the thought that he has to quote some legal basis; he nods, so I am right—what other basis will he make for his allegation that his trade union rights have been infringed? He has already said, "Last Tuesday you stopped me exercising my rights"; in the first case, a contractual right; in the second, a statutory right. What is the basis for that grievance? What do the Government mean by that requirement?
Let it not be said that this is something meaningless or trivial, because a tribunal or, particularly, the Employment Appeal Tribunal or the Court of Appeal, will have to give it some meaning. It will have to say, "You, the employee, have set out your grievance in writing, which you are required to, and sent it to the employer, but you have not set out its basis"—whatever that means. Will my noble and learned friend give me a precise and exact illustration of what the basis of a grievance would be for someone who has set out his grievance properly and fully, as one would hope, if it is not a reference to its legal origin; a right that he alleges has been contravened?
I appreciate why the Government introduced the amendment on grievance procedures. If I may say so with respect to those who authored the amendment, it is a slipshod attempt to look even-handed; they have put in "basis" on disciplinary procedures, so they have put it in on grievance procedures. With great respect, they have not thought it through. What does basis mean in the grievance procedure once you have set out your grievance?
That question needs answering rapidly, because if Amendments Nos. 54 and 58 slip through in a group of amendments that is about something else entirely, the courts will be faced with the deplorable situation of trying to find a basis where the basis has already been stated in the written document the employee is legally obliged to present. I hope that separate accounts will be given of Amendments Nos. 54 and 58 when my noble and learned friend replies. It is not like Committee stage; after his reply we cannot intervene. That is why I set out the problem at this stage.
"(4) Nothing in this section or in Schedule 2 shall affect the operation of section 92 of the Employment Rights Act 1996 (c. 18) (right to written statement of reasons for dismissal)."
"is entitled to . . . particulars of the reasons for . . . the dismissal",
in a form,
"admissible in evidence in any proceedings".
The terms of the statutory procedure do not clear that hurdle. The terms do not entitle the worker to be told the principal reason or reasons for dismissal—whether they are fair or unfair. They do not say that the employee is entitled to very much. All the employer has to give is his final decision—not the reasons.
Page 65, line 7, at end insert—
"( ) When a disciplinary matter arises the employer should first establish the facts promptly."
"a reasonable opportunity to consider his response to that information".
That means that the facts of the case will be fully on the table. Other noble Lords may want to probe this matter. If the answer is that we have made progress we shall consider that in the light of the Minister's comments. I beg to move.
"and detail the evidence upon which he relies",
is simply to ensure that that proper investigation has taken place prior to the decision. It is not only a matter of the protection of the employee—although that is important—but also of ensuring that the employer, who is given an additional hurdle in both the modified and the standard disciplinary procedures, is protected. Although the employer who complies with the additional procedures insures himself against a finding that the dismissal was automatically unfair, he is not protected against a finding that the dismissal was unfair for any other reason. It is important that the Government should go further and add more detail to their amendment to ensure that both the employee and the employer are protected by proper, full and detailed investigations prior to the decision to dismiss.
4 p.m.
"the employer has informed the employee what the basis was for including in the statement . . . the ground or grounds given in it".
I can see what that means. The statement may say, "You have broken your duty in some way and I now give you the basis of that allegation". But Amendments Nos. 54 and 58 on the grievance statement relate to quite a different position. Amendment No. 54 requires the same thing and
appears to be parallel to the disciplinary procedure. In my submission it is not. Amendment No. 54 states that the employee must inform the employer of the basis for the grievance. Amendment No. 58 states:
"The employee must—
(a) set out in writing—
(i) the grievance, and
(ii) the basis for it".
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