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Lord McIntosh of Haringey: My Lords, my noble friend describes this as a modest amendment. I suppose he means that it is heavily qualified, with its reference to "reasonably practicable", "seek to agree" and "taking into account". I certainly would not accuse it of going over the top.
The amendment is meant to fit the general requirements in Schedule 2 and, in particular, appeal meetings that are not the first meeting. Part 3(13)(3) states that
- "the employer should, as far as is reasonable practicable, be represented by a more senior manager than attended the first meeting".
I got the impression that my noble friend was not recognising that point.
The amendment proposes that the parties should seek to agree a mechanism for the conduct of appeals. I do not understand what is meant by "a mechanism". Is the intention to establish a joint system, whereby decisions about the conduct of appeals could be made—or about the rules of conduct themselves?
I find it difficult to understand the amendment and suspect that it is necessary. Part 3(13)(2) states that appeal meetings must be conducted in a manner that enables both the employer and employee to explain their cases. Is that not the amendment's objective?
I and my noble and learned friend Lord Falconer have said several times this afternoon that use of the ACAS code should be encouraged even more than now. We agree with the Better Regulation Task Force in that regard but we have always resisted bringing the code into statute. The parties can draw on whatever guidance the ACAS code provides—the amendment does not add anything of substance.
We have tried to keep the statutory procedures as short and simple as possible. We resist all embellishments, unless there is an extremely good case for them. The amendment would complicate the procedures. Part 3(13) covers most of the points made by the amendment and many people, including me, would be confused about its meaning.
Lord McCarthy: My Lords, I cannot resist responding to the Minister. I said that the amendment is modest and that it does not ask for much. It is just a little broader. I pointed out the fact that "a more senior manager" was on the statute book and on the face of the Bill. But to echo the Minister, he could have been there; he was not far enough away. He could have been the person who told the inferior person to sack the worker. ACAS wants someone who is not directly involved. It is better if it is a senior person because it will be easier for such a person to reverse the decision. It will be no good using someone with no authority. You cannot bring out the man who looks after the cars; you need someone with authority to reverse a decision of managers. It should be someone who is not involved in the dispute, and that is not on the face of the Bill.
The Minister says that he does not know what is meant by "mechanism for conduct". Those are three words and I can explain them in one: procedure. All noble Lords know what a procedure is and we are talking about a mechanism for the conduct of an appeal. That is a procedure.
To reject this amendment will not do. The Government can continue to reject amendments, but I return to the point that there will be no reduction in tribunal hearings. This amendment is modest and it may induce a few people not to demand their day in court. If the Government will not accede to that, there will be no reduction in the number of tribunal hearings. When the results of the latest directives come in one will see that the figures will have risen and the Government will get around to introducing such a measure in the end. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 63 had been withdrawn from the Marshalled List.]
Lord McIntosh of Haringey moved Amendment No. 64:
- Page 67, line 19, at end insert—
A meeting held for the purposes of this Schedule is a hearing for the purposes of section 13(4) and (5) of the Employment Relations Act 1999 (c. 26) (definition of "disciplinary hearing" and "grievance hearing" in relation to the right to be accompanied under section 10 of that Act)."
The noble Lord said: My Lords, in Grand Committee we discussed the case for including a reference to the right to be accompanied in the statutory procedures. That right was brought into being by the Employment Relations Act 1999. The noble and learned Lord, Lord Falconer, indicated that the Government were giving further consideration to the issue. We have done so and have come forward with this amendment.
Its effect is to make it explicit that the right to be accompanied will apply to meetings held under the statutory procedures in the same way as the right applies now to hearings held under voluntary disciplinary and grievance procedures. In other words, it will remain the case that the right will apply where a meeting under the statutory dismissal and disciplinary procedures could result in the administration of a formal warning or some other formal action against the employee or the confirmation of such actions at an appeal. It will remain the case that the right will apply to meetings held under the statutory grievance procedures where the grievance concerns the performance of a duty by the employer in relation to the employee.
In our judgment, it is highly likely that the right to be accompanied would apply in this way even without the amendment. But we have listened to the debates on this issue and we recognise that some individuals, including eminent employment lawyers, have raised questions about these matters. We have therefore 6.15 p.m.
Lord Wedderburn of Charlton: My Lords, I cannot let this welcome government amendment pass without saying how glad we are that the obdurate opposition to putting this matter on the face of the Bill in another place and the keenness to deal with it in procedures and regulations in this place have been supplanted by the excellent principle of putting fundamental matters on the face of the Bill. We congratulate the Government on doing so and hope that they will follow their own precedent on other occasions.
I hope that the Minister will not mind if I raise one matter. By importing, as this amendment does, the welcome definition of meetings as hearings under Section 10 of the Employment Relations Act, which is specifically mentioned as part of Schedule 2 procedures, does it mean that the definition of "grievance hearing" in the Employment Relations Act applies to the meaning of "grievance"? I ask that especially in relation to "grievance"; otherwise there is no definition of "grievance" in the Bill. It is important to know what is a grievance or it will be when the matter is argued in a procedure. One will need to know whether an employee should use the first step in the grievance procedure. If he does not use the first step he will not be able to go to a tribunal, and if he does he cannot go to a tribunal for 28 days.
This amendment, in a most welcome manner, rightly applies the meaning of "grievance hearing" in Sections 10, 12 and 13 of the Employment Relations Act 1999 for the purposes of what is a meeting in this Bill. Of course, in doing so the question arises whether, for the first time, the Government are defining "grievance". If they are defining "grievance" in precisely the same way as it is defined in Sections 10, 12 and 13 of the 1999 Act, that has important consequences, not only for understanding generally, but also in relation to the amendments that they have moved today about what an employee has to do in regard to the grievance procedure. I believe that we are entitled to know how far this amendment imports the other parts of those sections that go with Section 10 in the 1999 Act.
Lord McIntosh of Haringey: My Lords, I have two immediate reactions to that. First, the word "grievance" is used widely in Schedule 2 and, secondly, as I understand it the amendment is tightly drawn. I believe the wisest course would be for me to write to my noble friend Lord Wedderburn on this matter in good time before Third Reading.
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 64A:
- Page 67, line 19, at end insert—
(1) The procedures set out in Part 2 are only applicable to matters raised by an employee with his employer as a grievance.
(2) Accordingly, those procedures are only applicable to the kind of disclosure dealt with in Part 4A of the Employment Rights Act 1996 (protected disclosures of information) if information is disclosed by an employee to his employer in circumstances where—
(a) the information relates to a matter which the employee could raise as a grievance with his employer, and
(b) it is the intention of the employee that the disclosure should constitute the raising of the matter with his employer as a grievance."
The noble Lord said: My Lords, both at Second Reading and in Grand Committee, my noble friends Lord Borrie and Lord Gladwin discussed the interaction between the statutory procedures and the system for making and protecting public interest disclosures. That system was introduced by the Public Interest Disclosure Act 1998, which inserted new sections about public interest disclosures into the Employment Rights Act 1996.
My noble friends voiced concerns that the statutory grievance procedure may undermine, or be thought to cut across, the Act. It was felt in some quarters that employees may, rightly or wrongly, feel compelled to use the statutory grievance procedure when they wanted to make a public interest disclosure relating to their own personal treatment. In other words, they may feel constrained from raising their concern in a less formal way with their employer or via dedicated disclosure procedures. They may also think that they could not make the disclosure to third parties.
Ministers have stressed that we do not want the statutory procedures to undermine the Act. At Second Reading I said that the Bill and the regulations would secure that that was the case. But the doubts remained and in Grand Committee on 11th April my noble friend Lord Sainsbury announced that the Government intended to table an amendment that would remove any lingering uncertainty that the Bill would carry with it such unintended effects. He also indicated that officials would consult Public Concern at Work on the amendment.
We have therefore tabled this amendment to remove all doubt on the matter. We have consulted Public Concern at Work on drafts of the amendment. We are grateful for its helpful input and I want to place on public record our thanks for its support in this work and for the letter that Guy Dehn of Public Concern at Work sent to all noble Lords yesterday.
His letter confirms my belief that our amendment satisfies its concerns. It makes it clear that employees are free to decide how they wish to pursue a concern which could be treated either as a public interest disclosure or as a grievance. If they wish to take up an issue as a grievance, they can do so. If they wish to disclose their concern in other ways consistent with the Public Interest Disclosure Act 1998, then they are free
I hope that the amendment will satisfy all the concerns expressed and I commend it to the House. I beg to move.
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