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Lord Wedderburn of Charlton: My Lords, I should like to say that I am grateful to my noble friend when he clarifies issues, but I wrote down what I thought he said in what was the first definition we have ever had of a "near-instant" dismissal. As I understood him, he said that the instant dismissal is when the employer is present and says, "Get out". That is a summary dismissal in law, but if the Government want to call it an instant one, I do not mind.
The noble Lord then said that the near instant dismissal is when the employer is not there but comes back. I wrote down, "When the employer comes back". If I have written that down wrongly, I apologise, but if he looks at his text I think he will find that that is what he said. The employer comes back and says, "Get out".
I imagine myself in the Court of Appeal where an unhappy employee who has been told to get out says, "I was wrongfully dismissed at common law". Someone says, "Well, you should not have been allowed to go to a tribunal because that was a near-instant dismissal". The employee says that the employer was nowhere around. He came back the next day and said, "Get out". Is that a near-instant dismissal? With the greatest respect to those who thought up this curious paradigm, that definition is absurd.
However, the Minister said something that was very important. He said that the modified procedure would apply to ex-employees. I notice that he did not say a word about the law on termination of contract. So he is adopting the automatic theory on termination. Is that what the Bill says? So the courts had better look at this deep area of what Lord Justice Ward called "murky waters" and realise that the Government are by a side wind legislating on that.
Then the Minister says that these are the cases to which the modified procedure will apply. So in all cases where notice is given the modified procedure will not apply. Therefore, an employee would be very sensible
when an employer says, "Get out", to ask, "Are you giving me notice?" If the employer says, "Well, all right, you can have a week's notice, but I want you off the premises anyway", that is not a near-instant dismissal.I touched on a further point which the Minister did not seem to notice. The modified procedure applies to all summary dismissals whether or not they are justified at common law. So it applies even where the employer instantly or summarily dismisses wrongly. In other words, the modified procedure application is at the choice of the employer. Whether or not he is right in law, if he says "Get out", the modified procedure applies—especially if he is present because then we know it does. Just how far he has to be away to come back we are not sure.
So can he be sued in an employment tribunal? Every time he says, "Get out" the employee has to start his grievance procedure. He has to send that letter before he can get to a tribunal. That is the point where the Minister, with the greatest of respect to him, was most in error.
The Minister says that it is wrong to call this an inroad into employment rights enforcement. But if the employee has not done what Schedule 2 says that he must do, he is not allowed to go to a tribunal. Even if he has complied with it he has to wait 28 days. We shall come to that matter.
Therefore, the modified procedures encourage the worst practice. They encourage summary dismissal. Where it is a matter of a grievance they encourage the employer to give his first and last word and know that that is the end of it because there is no meeting and no appeal.
What possible contribution to what the research documents rightly call "the need for further dialogue at the workplace" can such crude and silly procedures possibly have? I hope that the Government will think again. If they cannot withdraw the modified procedures, at least at Third Reading they should come back with provisions that working people can recognise as having elementary fairness. At the moment there is no fairness. The worker is left vulnerable. I say that especially in view of the policies advanced by parties other than the Government. Those who are vulnerable need protection. The modified procedures deprive them of it. But at the moment there is nothing that we can do except to leave the Government wallowing in what is a terrible mess and which is opposed to their professed aims, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, in calling Amendment No. 47, which was spoken to with Amendment No. 37, I must advise the House that if the amendment is agreed to I cannot call Amendments Nos. 48 to 50 inclusive.
Lord McIntosh of Haringey moved Amendment No. 47:
- Page 65, line 32, leave out paragraph 4 and insert—
The noble Lord said: My Lords, Amendment No. 47 was spoken to with Amendment No. 37, or strictly with Amendment No. 41. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 48 to 50 not moved.]
Lord McIntosh of Haringey moved Amendment Nos. 51 to 53:
On Question, amendments agreed to.
The Deputy Speaker: My Lords, Amendment No. 54 is defective. It should refer to paragraph 6 and not paragraph 4.
Lord McIntosh of Haringey moved Amendment No. 54:
On Question, amendment agreed to.
[Amendment No.55 had been withdrawn from the Marshalled List.]
Baroness Gibson of Market Rasen moved Amendment No. 55A:
The noble Baroness said: My Lords, Amendment No. 55A refers to the grievance procedure. It is designed to be helpful. It is a simple but necessary amendment. Bullying arises on occasions and possibly will increasingly arise in the grievance procedures.
A fortnight ago I organised a meeting on bullying in this House. I had only 10 working days to advertise it. Over 90 people turned up at the meeting. They told horrendous tales about bullying from the point of view of employees, employers and middle management.
The Peers who were interested in coming to the meeting were not able to get into the meeting room because it was too small. Although it was very squashed and very hot, I appreciate the support of those who came.
Since then I have received numerous telephone calls and letters in which I have been inundated with examples of bullying. Obviously, with this meeting I touched the tip of an iceberg, one which certainly will not dissolve and most probably will grow. All of those who attended believed that, as the law stands, there is no adequate legislation to challenge bullying at work. I know that the Government do not take that view, but I merely say to them, "Try being a trade union representative and using the law as it stands and you will know how difficult it is".
We cannot ignore the fact that bullying exists in thousands of workplaces and that in many it is endemic: it has happened for years; it is the norm. At the meeting, instances were cited from the health service, teaching, the voluntary sector, engineering and, indeed, from the Post Office—perhaps I should speak to my honourable friend the Minister in another place about that because I am sure that he would be interested in those bullying cases.
All types of offices, including government offices, were involved and several Ministries were mentioned. I shall not embarrass any of my noble friends by naming them, but I urge all Ministers to look over their shoulder because bullying is occurring. Of course, it also takes place in many kinds of factories, in workplaces large and small and in all parts of the United Kingdom. People attended the meeting from Scotland, Wales, Northern Ireland and all parts of England.
The Dignity at Work Bill recently passed through the House, for which I thank your Lordships. It is now scheduled for the other place but unfortunately, as I said, the Government are not backing it. Perhaps they will think again. It is an extremely popular piece of legislation with working people and good employers who were also present at the meeting stressed that good employers need not fear the Dignity at Work Bill. As they pointed out to me during the meeting and afterwards, when they remained behind to speak to me about it, they have had to face bullying at work and agreed that a specific law on bullying would have helped them.
We are now considering the Employment Bill, which sets out to be good legislation. The Government are rightly proud of having introduced it, but we need to encompass as much as possible in the Bill. Because it is a forward-thinking piece of legislation and one that should last for a good while, the amendment would add significantly to it. The amendment is a simple but sincere attempt. It covers employers, employees and managers because in many aspects of grievance procedures all three, or two out of those three, may be involved in bullying. My noble friend Lord Lea will speak a little more about that in a moment, but I ask the Government seriously to consider the amendment. It is intended to be helpful and could improve the Bill. I beg to move.
Lord Lea of Crondall: My Lords, I rise briefly to support my noble friend. We are seeking to make an important clarification as regards a possible difference between bullying and other matters that may come under disciplinary or grievance procedures. The key issue, to which my noble friend just alluded, is that there are often three sides to such disputes, not two. The key point is that an appeal will in practice often relate to the manager's position in the line of command in relation to the ultimate employer. The manager in question will therefore not be taking the hearing, as he would in the case of an ordinary grievance. So the manager could either be the person being said to have done the bullying, which would constitute a grievance, or the person in a disciplinary hearing who was saying that the employee was doing the bullying. Would it then be right for the manager to be the person to take the case, as it were, instead of a third party?
I wonder whether Ministers in the Department of Trade and Industry and the DTI corporately have yet shown sufficient ingenuity in addressing what I may call the variable geometry. We do not have to be Picasso to work out that the picture is different from a two-dimensional one. The manager is often the pig in the middle between the other two parties.
I thank my noble friend Lady Gibson for her work and refer briefly to the interesting meeting upstairs last week. As a trade union official of some years' experience, I can normally tell quite quickly whether there is a big head of steam behind an issue. There is a big head of steam worked up behind this one, which should be released without adding to the frustration by saying that it does not really come under this Bill or that perhaps it should come under my noble friend's Dignity at Work Bill. We do not know what will happen to that Bill. Something must be done.
We have narrowed down what is the proper connection between the broader ideas on bullying, which have been the basis of the campaign, and the unique, narrow opportunity presented by this Bill. We have made a modest suggestion that I hope will be accepted as useful: that the employee could be deemed to be a third party if the employer takes action under the disciplinary procedure.
The amendment may not represent the optimum formulation, but as we are nearly at the last stage of the Bill, our real request is to move forward, put some cards on the table and not just go round in circles arguing about what bullying is, because we have been doing that for as long as I can remember. We want some evidence that the right degree of intellectual agility is being shown to try to address the proposition for which my noble friend has been campaigning. We have started to crack the issue and I hope that my noble friend the Minister can say something positive about it today.
"4 The employer must—
(a) set out in writing—
(i) the employee's alleged misconduct which has led to the dismissal,
(ii) what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and
(iii) the employee's right to appeal against dismissal, and
(b) send the statement, or a copy of it, to the employee."
Page 66, line 13, after "send" insert "the statement or"
Page 66, line 13, after "copy" insert "of it"
Page 66, line 16, leave out "at least one" and insert "attend a"
Page 66, line 17, at end insert—
"( ) The meeting must not take place unless—
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 4, and
(b) the employer has had a reasonable opportunity to consider his response to that information."
Page 66, line 23, at end insert—
"( ) In the case of bullying, the appeal may be instituted by either the employee, the manager or the employer."
5.30 p.m.
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