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Baroness Turner of Camden: My Lords, I rise to support the amendment tabled by my noble friends Lord Lea of Crondall and Lady Gibson, but I have another reason for intervening. Government Amendment No. 47 raises the issue of misconduct. If accepted, it would pre-empt the amendments on misconduct which follow immediately in my name and the names of my noble friends.
It cannot be too heavily emphasised how serious it is for an employee to be dismissed on grounds of misconduct. It will not only affect his chances of obtaining comparableperhaps anyemployment, but it may also involve loss of benefit. I was for a number of years a member of a tribunal dealing with social security matters. We sometimes had to deal with appeals from dismissed ex-employees who had lost benefit. We used to rule that it was up to those who made the allegation of misconduct to establish it; the onus of proof was on them. If that obligation was not discharged to our satisfaction, the claimant succeeded. Nevertheless, it was a serious matter for the appellant.
Since the charge is so serious, every effort must be made to ensure that it is properly investigated. I am not at all certain that government Amendment No. 47 provides for such investigation. It can be difficult; there may have been disputes between employees; harassment and provocation; perhaps even allegations of sexual harassment. In certain circumstances it would clearly be unwise to take allegations at face value without investigation. It may not even be possible to come to a clear decision as to culpability, in which event a strong warning might be appropriate. In any event, suspension pending investigation would appear to be the wisest course.
Although the government amendment is an improvement on what was there before, it does not go far enough. I hope that when the Minister speaks to it he will set at rest some of my concerns and those of my noble friends. Amendment No. 47 does not provide for investigation and the possibility of warning and suspension. I hope that the Government will consider that point, at least before Third Reading. I shall not be able to move the amendments later on, which is why I am participating in the debate now.
Lord Falconer of Thoroton: My Lords, before I begin to discuss this group of amendments, I should confirm that government Amendment No. 54 contains a drafting error. It deals only with the standard grievance procedure. Sub-paragraph (a) makes reference to "paragraph 4" of the modified dismissal
The amendments arise from the many debates on investigations that have taken place during the Bill's passage. In Grand Committee on 18th March, I indicated that the Government would explore whether we could devise amendments on the topic that met the concerns expressed but avoided the known pitfalls.
It is worth recalling some of the main problems with introducing into the statutory procedures a reference to investigations. The procedures are written as a series of concrete and verifiable actions. It is intrinsically difficult to define the investigatory process in similar terms and in a way which would generally apply to many different cases and circumstances. There is thus a difficulty in referring to the term "investigations" within the statutory procedures because it is unclear what it precisely entails in any particular case. None of the four government amendments uses the word "investigations". It is also worth noting that none of the other amendments in the group uses the term either. I take that to mean that there is at least a measure of common ground across these Benches on the nature of the problems.
Perhaps I may deal first with government Amendments Nos. 41, 47, 54 and 58. We believe that we have successfully navigated these difficult waters. We have therefore brought forward these four government amendments. We consider that we have tackled the issue in a broad enough way that it can be applied to each of the four statutory procedures. Amendments Nos. 41 and 47 relate respectively to the standard and modified dismissal and disciplinary procedures; and Amendments Nos. 54 and 58 deal with the standard and modified grievance procedures.
Knowing that it is problematic to mention "investigations" per se, we have therefore chosen to approach this issue from a different angle. Investigations aim to uncover information or evidence about the circumstances of the case or a matter of concern. These then constitute the basis for initiating the complaint or other action. With those thoughts in mind, we feel that there is no need to mention the investigatory process at all. Instead, we should refer to the outcome of the investigatory processthe information or evidence which it typically uncovers.
Accordingly, the procedures should place obligations on the parties to disclose the information on which they initiated their action against the other party. The requirement to assemble and convey information of this kind would in practice be a very strong encouragement to the parties to ensure that an investigation occurs; otherwise, they would not be able to divulge any information because none would exist.
Let me now describe how we applied this approach to each procedure. Amendment No. 41 deals with the standard dismissal and disciplinary procedure. It requires employers to ensure that employees are informed of the "basis" for initiating procedural action against them. The Step 1 letter serves the purpose of identifying the issue or allegation against the employee. This amendment would ensure that the employer is then required to provide the supporting information which led him to write that letter.
The information should be disclosed before the Step 2 meeting and sufficiently in advance of that meeting to ensure that the employee can consider his response to it. By this formulation, we ensure that employees are not "bounced" with important new information that the employer knew all along at or just before the Step 2 meeting.
We have deliberately not prescribed how the employee should be informed. This is desirable because it gives a helpful flexibility to employers. We should remember that the procedures will apply to virtually every employer in the country, including the many businesses which employ only one or two employees. Some may wish to convey this information in writing. They are free to do so. Indeed, they could include the information in the Step 1 letter, which will be an attractive idea for many larger employers. Others may wish to convey the information orally by telephone or at a meeting.
Investigations are usually associated with conduct cases. However, we believe that the gathering and prior disclosure of information can help in any dismissal or disciplinary matter. It can help to inform the dialogue between an employer and an employee, not only in conduct cases but also where the employee may be declared redundant or where he or she is thought to be under-performing at work. For example, in the case of an individual redundancy it would help the employee to know what were the redundancy criteria and how he or she scored in respect of them in advance of any Step 2 meeting. Our choice of wording in this amendment has therefore been deliberately chosen to apply to both conduct and non-conduct cases.
Amendment No. 47 deals with the position of the modified dismissal and disciplinary procedure which, as noble Lords will recall, the Government intend to apply to cases of instant dismissal for gross misconduct. As noble Lords know, there is no Step 2 meeting in this procedure. This amendment therefore obliges the employer to disclose the information in the Step 1 letter that he sends to the dismissed employee.
Amendments Nos. 54 and 58 assign the corresponding obligations to employees in grievance cases. We consider that there is great merit in this. Information about a complaint which is disclosed in advance helps the employer to respond more fully and constructively to the complaint; time is used more efficiently; and it might even prompt the employer to undertake investigations of his own into the matter.
My noble friend Lord Wedderburn asked, "What does 'basis' mean here? Does it have a different meaning in relation to grievance procedures from what it has in relation to disciplinary proceedings?" He gave as an example that if the grievance was that the employee had not been able to exercise his union rights, what "basis" would have to be provided by the employee in support of the grievance? It is unwise for me to go too heavily into what the precise requirements might be in a particular case but, in the example given, what more the employer would need to know and the employee would need to convey is when the employee was prevented from exercising the rights; the circumstances
The circumstances in which he was preventedfor example, not being allowed time off for union activities; confirmation that he is a union member; and what exactly happened. My noble friend said that the complaint was, "Not being able to exercise my union rights"; and then he said, "What was the 'basis'?"
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