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Lord Borrie: My Lords, I welcome the amendment, particularly on behalf of Public Concern at Work, of which I am a patron. As my noble friend Lord McIntosh said, the amendment fulfils the assurances given in Grand Committee by my noble friend Lord Sainsbury of Turville in response to an amendment I moved. Public Concern at Work is grateful also for the consultation that followed the Minister's response to the suggestion made in Grand Committee by my noble friend Lord Gladwin of Clee.
The amendment makes it clear that the Bill's grievance procedure does not undermine the legislative framework for whistleblowing in the public interest contained in the Public Interest Disclosure Act. The Act encourages employees to raise public interest concerns internally, but it is important for obvious reasons that there should also be an option for employees to raise matters externally; for example, with appropriate regulators.
That option is preserved through the amendment, so long as it is not the employee's intention to raise the matter as a grievance. My noble friend Lord Wedderburn of Charlton mentioned in another context the remaining deficiency that the Bill contains no definition of "grievance". I raise this point as a fact, not as an objection to the amendment, because consultations can take place before regulations are drafted to fill that deficiency and to define what is a grievance.
The view of Public Concern at Work is that the key element of a grievance procedure is that its purpose is to remedy or redress some harm or damage suffered by an employee. That differs from whistleblowing, where the purpose is to alert or to put on notice the employer or the relevant authority so that they can assess what action, if any, is needed. As the new statutory dispute regime is concerned only with grievances which may ground a tribunal claim, a definition of grievance that recognises the essential element of remedy for personal harm is appropriate. That is because the pre-eminent reason claims are brought to a tribunal is to seek a personal redress, especially, and usually, compensation for a detriment or harm the employee believes that he has suffered at the employer's hands.
We trust that Her Majesty's Government will confirm that there will now be full and open consultation on what is a grievance before regulations are introduced. We trust too that they will confirm that the key element of a grievance in the new regime will be that the employee is seeking a remedy or redress for harm or detriment.
When the Bill becomes an Act, the new statutory regime will be explained in various ways to employers and employees, who can all usefully be reminded of the
nature and value of whistleblowing. If an employee is concerned about wrongdoing in his workplace, be it fraud, public danger, danger to public health or cover up of wrongdoing, he should feel able to raise that matter as a witness and be seen as such by managers and fellow employees rather than as a complainant who may have a personal interest in the outcome.If, sadly, as we all know happens only too frequently, an employee is victimised as a result of blowing the whistle perfectly legitimately within the public interest disclosure regime and seeks a personal remedy, the grievance procedure set out in Schedule 2 will apply as it does to any other kind of grievance. I warmly welcome the amendment.
Lord Wedderburn of Charlton: My Lords, I welcome the amendment. The comments of my noble friend Lord Borrie are right. But I have a problem, and I want to help the Government in its solution. As my noble friend Lord Borrie said, it relates to what was said about the previous amendment. He suggested—and I understand what he was saying—that a grievance concerns harm, damage or detriment to the employee. If that is to be used as the definition or near-definition of "grievance", it will be different from the definition in the Employment Relations Act 1999.
The Minister might pay some regard to the different definition in Section 13(5) of that Act, where a grievance hearing is defined as,
- "a hearing which concerns the performance of a duty by an employer in relation to a worker".
I suggest that the Minister should take seriously the definition in Section 13(5) of the Employment Relations Act and consider whether it should apply to both the Section 10 amendment we have just debated and the amendment under consideration.
Lord McIntosh of Haringey: My Lords, I am grateful to my noble friends Lord Borrie and Lord Wedderburn for their support. I confirm that when I write to my noble friend Lord Wedderburn on the issue—and my reply will be informed by his further helpful comments—I shall write also to my noble friend Lord Borrie, to the other Front Benches and all other Members of my party who have taken part in the debate; my noble friend Lord Gladwin is particularly associated with Public Concern at Work.
On Question, amendment agreed to.
Baroness Turner of Camden moved Amendment No. 66:
- Page 67, line 19, at end insert—
14 Where a party states that a statement or copy of it has been sent to another party it shall be presumed that he has sent it.
15 In the interpretation of this Schedule, any relevant code of practice or statement of guidance issued by the Advisory, Conciliation and Arbitration Service shall be taken into account."
The noble Baroness said: My Lords, this amendment seeks to incorporate a clause dealing with interpretation. Both in the standard and modified procedures there is a requirement to set out grievances in writing and to send a copy to the employer. That effectively starts the procedure. The amendment ensures that there is as little delay as possible in commencing procedures. Therefore, if a party states that a statement or a copy of it has been sent to another party, it shall be presumed—a word I emphasise—that it has been sent. Surely this is sensible. Is the worker expected to prove that he has sent it? Why should proceedings be delayed by arguments about whether or not it has been sent?
The legislation ought to be user-friendly. We have to remember that the workforce is becoming increasingly multi-ethnic—the noble Baroness, Lady Miller, mentioned this and I am sure that it is agreed in all parts of the House—and there may be language difficulties or cultural misunderstandings. Giving the employee the benefit of the doubt in such circumstances would appear to be eminently sensible. Employment tribunal proceedings are intended to be simple and easily accessible. Many of the people seeking to use the procedures will be relatively poor and it is the duty of politicians, as we have repeatedly said in the House, to be helpful to the vulnerable.
My noble friend Lord Wedderburn raised this issue in an earlier, differently worded, amendment in Grand Committee. Unfortunately, because my noble friends and I were not particularly happy with the response that we received from our noble and learned friend the Minister at that stage, we are bringing back the matter with slightly different wording.
The second part of the amendment provides that,
I hope that the Government will accept that the amendment is intended to be constructive. In Grand Committee we asked the Government to take away
"In the interpretation of this Schedule, any relevant code of practice or statement of guidance issued by the Advisory, Conciliation and Arbitration Service shall be taken into account".
The Government have repeatedly acknowledged that ACAS is the organisation with the relevant expertise. Undoubtedly it will be called upon to provide advice and assistance in what, for many, will be an entirely new field of operation. The intention of the Bill is to get employers with no procedures to adopt at least a minimal level. But they may well need assistance, and ACAS is the right place to go for it. Interpretation may be difficult for some. The amendment makes it clear that guidance must be available and taken into account.
6.30 p.m.
Lord McIntosh of Haringey: My Lords, I certainly agree that the amendment is intended to be constructive. I can assure my noble friend Lady Turner that we did take away the amendment and that we did think about it again. But the result of that further thought is that we have not changed the view that we took when we debated a similar amendment in Grand Committee.
As my noble friend said, there are two issues here. The first concerns disputes between parties about the sending of written communications under the statutory procedures—Step 1 letters, for example. Of course disputes do arise in practice; letters get lost in the post and people pretend that letters have been sent when they have not been. This part of the amendment tries to cut through such disagreement by entering a presumption in the procedures that the sender is always right if he or she asserts that a communication has been sent. My noble friend is concerned about the implications of this kind of dispute for an employee's access to the tribunal system. We do not believe that these issues will cause problems for tribunals and therefore, by extension, for employees.
In our judgment, it would be extremely difficult for the employer to prove that a communication was never sent, especially if a dated copy was retained by the sender. So any disputes on these points would not detain the tribunals for long. However, there may be cases where the employer has valid evidence that a communication was not sent. For example, the employer's computer records may provide evidence about the alleged use of internal e-mail systems to send written communications. We should not discount the existence of that possibility by introducing a presumption of this kind. That would bring the procedures into disrepute.
The second point introduces a cross-reference to the guidance given by any relevant ACAS code or other statement of guidance when interpreting the schedule. We have discussed this matter on a number of occasions, both in Grand Committee and today. In particular, I responded to the amendment of my noble friend Lord Lea, Amendment No. 44, on this point.
To repeat the issue, the ACAS code of practice on disciplinary and grievance procedures would of course be relevant to the use of statutory procedures. The only question is whether a specific reference to the code is necessary here. As I said before, I am confident that it is not. When considering "any question" to which an ACAS code may be relevant, tribunals must already take the code into account under Section 207 of the Trade Union and Labour Relations Consolidation Act 1992.
The amendment also refers to other "statements of guidance" issued by ACAS. At present, statute does not require tribunals to take into account other such ACAS documents. Indeed, I am not quite sure what
other ACAS documents would be covered by the term. I am therefore reluctant to introduce a novel reference of this kind into the Bill.
While confirming that the amendment is intended to be constructive, I would ask my noble friend Lady Turner not to press it.
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