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Lord McIntosh of Haringey: My Lords, let me acknowledge from the outset that this is an important issue. To her great credit, my noble friend Lady Gibson has brought it to the House's attention more
than once. She has certainly proved to my satisfaction that there is what my noble friend Lord Lea calls a head of steam behind it. It is clearly something that deserves the Government's attention.We do not normally oppose or support Private Member's Bills, but on Second Reading of my noble friend Lady Gibson's Dignity at Work Bill, I identified certain problems with the Bill, the definition of bullying and the extension of new types of protection that the Bill would entail. But that does not mean that we do not have to take the issue seriously.
Bullying is typically handled under internal procedures in two ways. Employees can raise allegations of bullying under grievance procedures, which is covered by Amendment No. 55A, and employers can use their disciplinary procedures against employees who are accused of bullying, with which Amendment No. 43, over which we passed somewhat rapidly, is concerned. The amendments seek to allow the employer or the manager to initiate an appeal against a Step 2 decision under the standard statutory procedures for both dismissal and discipline and grievances in cases involving bullying. The procedures currently permit only the employee to request the appeal.
I must say that there is something odd about the amendments, because they concern the appeal, which is an appeal against the employer's initial decision after the Step 2 meeting. It is odd to let the employer appeal against his or her own decision. I am not aware of any voluntary procedures that involve such an unusual arrangement.
Lord Lea of Crondall: My Lords, I am grateful to my noble friend for giving way. It is not as daft as the Minister has just implied because the employer and the manager are not necessarily the same person.
Lord McIntosh of Haringey: My Lords, I am coming to that matter. The amendment provides that the employer, the manager or the employee has the right to institute an appeal. I assure my noble friends that I have given the matter a great deal of consideration during the past few days because it is puzzling. It is a very difficult matter to define, a very difficult matter to legislate for, and it deserves proper consideration.
The amendment refers to the ability of a manager to initiate an appeal. I suspect that my noble friends are concerned about the position of a middle manager who is pronounced guilty of bullying by the employer when considering a grievance by a bullied employee. However, having listened to my noble friend Lady Gibson I believe that she raised a point which does deserve consideration; namely, where the appeal would go through a manager who is himself accused of bullying. That is certainly a consideration which I had not thought about before.
When my noble friend Lord Lea refers to the manager being the pig in the middle, I can see the argument that the middle manager should be entitled to appeal. Of course, a manager is simply another employee for the purpose of the statutory procedures.
Managers are entitled to use the statutory procedures, just as other employees are. Therefore, aggrieved managers are entitled to raise a separate grievance with the employer about the way that they have been treated by the employer's consideration of the other employee's complaint. I believe that that is a more sensible and logical way to deal with the issue because it avoids introducing unusual steps into the grievance procedure.In practice, it may be unnecessary for the manager to lodge a grievance in those circumstances. Often, the employer will initiate separate disciplinary action against a bullying manager. This process will give ample scope to accused managers to put their side.
I have already referred to the difficulties in defining bullying. That is a problem that has dogged discussions of this difficult and sensitive issue over a number of years. There is no precise, accepted definition of bullying that could be used for legal purposes. That is why there is no legislation against bullying. I do not believe that introducing it without any attempt at definition, which the amendments would do, would avoid the problem of creating great practical difficulties of interpretation.
I have identified what I believe are real problems with the amendments, but I acknowledge the importance of the issue to a very large number of noble Lords, and the head of steam beside it. I believe that we should meet to discuss the matter between now and Third Reading and I invite my noble friends to do just that.
Baroness Gibson of Market Rasen: My Lords, I thank my noble friend for his speech. Having spoken to him informally, I know that he does recognise that bullying is increasingly becoming an issue in employment terms. I should like to offer a quick aside on the definition. When, over 25 years ago we were talking about racial harassment, sexual harassment and victimisation we were always told that they were difficult to define. Somehow we managed to get over that. Perhaps if we meet, which is an extremely helpful suggestion on the part of the Minister for which I thank him, we can deal with this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 56 and 57 not moved.]
Lord McIntosh of Haringey moved Amendments Nos. 58 to 60:
- Page 66, line 32, leave out paragraph 9 and insert—
On Question, amendments agreed to.
Lord Lea of Crondall moved Amendment No. 61:
"9 The employee must—
(a) set out in writing—
(i) the grievance, and
(ii) the basis for it, and
(b) send the statement, or a copy of it, to the employer."
Page 67, line 2, after "send" insert "the statement or"
Page 67, line 2, after "copy" insert "of it"
5.45 p.m.
Page 67, line 11, at end insert—
At the time of the introduction of the procedure, the employer should—
(a) issue to all employees in draft form the actual procedure which is to apply to the establishment,
(b) provide the opportunity for comments to be made by employees within one month, and
(c) issue the substantive version of the procedure after consideration has been given to the points submitted."
The noble Lord said: My Lords, the purpose of Amendment No. 61 is to pinpoint some of the problems that we shall be facing as the relevant regulations are tabled. This is an opportune moment—we had one brief bite at it upstairs—because soon there will be intensive consideration of what is going to be a revolutionary impact on all companies in the country. We know that those companies will range between multi-plant companies, groups, public limited companies, and so on, down to very small companies. Within that spectrum there will be a whole variety of companies in terms of geography, size, employment hours and people.
As regards communicating important new procedures, we have been told that in industrial relations the communication would typically relate to the appropriate size of bargaining unit, or people with a particular logic, as to why they are the group being consulted.
I do not believe that it is too late to shed light on this matter because I suspect that it cannot be transposed into practice just by the best brains in the country sitting in a room. The matter needs to be carefully considered in order to ensure that we have a meaningful account of who has to do what in a particular environment.
It ties up with the fact that a useful cross-reference arises in government Amendment No. 64 on the right to be accompanied. I believe that that is relevant because it is important that firms and workers' representatives understand that there is a new chapter opening up here as to who is to be involved, and how, in various procedures. The ideal solution will be an explanatory note—not just a unilateral notice board signed Department of Trade and Industry—on how Mr Struthers in King's Lynn will deal with issues concerning the night shift in the transport depot . That is the degree of detail required of the domestic procedures which the Government wish to have credibility. That is why many issues will not need to go to industrial tribunals, as my noble friends Lord McCarthy, Lord Wedderburn and Lady Turner have stated on many occasions. All of that is true. However, it is also true that we have an opportunity to ensure that robust procedures are in place to ensure that the domestic environment is improved so that not only are such matters settled through procedures but the climate is improved so that the issues do not even arise. In my view new procedures will be required in almost every workplace as a result of this Bill.
On the opposite side of the argument, I know that there is a concern about too much regulation. The better that this matter is addressed in the initial stages—and we are talking about a procedure at the time of introduction—the longer it is likely to be before an issue will arise. Additionally, there would be worries about people's motives and about misrepresenting where people are coming from. If this can be got right from the start, however it is expressed, there will be a degree of joint ownership of the procedure. That is what we are aiming for. I do not necessarily intend a connection with trade unions, although I am a trade unionist and that is what I should like to see. However, I believe that there must be some degree of joint ownership of those procedures. That must be put in at the start.
In Grand Committee, my noble friend indicated that some important matters need to be examined but not necessarily put on the face of the Bill. It would be useful if he would indicate how the Government visualise these matters being taken forward. There must be an acceptance that procedures are not being parachuted in from Whitehall but that they make sense in the workplace. We believe that over time they will make a great deal of sense in the workplace and we want to get them correct from the outset. I beg to move.
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