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Lord McCarthy: My Lords, this is simply a dialogue with the deaf, is it not? We have tried to explain—it has not been contradicted—what goes on in disputes of this kind. It begins with action by the employer. The worker then reacts by taking out a grievance. He goes to see the employer and, from that moment on, they can, if they wish, negotiate. They can, if they wish, make a settlement. If there is no settlement, the worker may decide in desperation that he will make an application to a tribunal. This is the type of case to which I am referring; there may be others when a worker decides to go straight to a tribunal.
The Government now insist that it cannot be as simple as that. The moment that a worker decides that he wants to apply to a tribunal, he must go through a new statutory procedure. The operation, or completion, of this procedure is not decided by the
worker; it depends on the employer replying. If, at that moment, the employer wants further negotiation to take place, there is nothing to stop that happening.But then the employer may say, "All right, I'll send you back the form. We'll start a hearing and we'll let you complete the procedure". At that point, perhaps six or seven weeks will have passed. We do not know as no research has taken place. Then the Government say that a period of 28 days will be allowed.
In Grand Committee we moved an amendment relating to that point. In that amendment we sought to ask why ACAS should not be allowed to be brought in during the 28-day period. We asked why there should be absolutely no guarantee that anything was going on. The employer could very well say—if I wanted to be nasty about it, I should say that the Government know this all too well—"Ah, now we have a 28-day dead period. During that period, the chances are that he will give up. He might get another job. He might go away. But let's stick him in a bin for 28 days".
As my noble friend said a moment ago, if the Government were genuine and wanted something to happen, they would make it happen. In Grand Committee the Government told us that, if it wished, ACAS could enter the procedure during the 28-day period because it has general provisions. We asked the Government how ACAS would know what was going on, but there was no reply. The only thing which, in the real world, can activate ACAS is the receipt of the necessary forms.
If the Government wished, they could legislate so that certain sanctions were placed on the employer during the 28-day period. However, they do not want to do that and we can come to only one conclusion. They believe that people will not be active during the 28-day period. Why should they be active? It is one more cue that the worker must observe. However, the Government will do nothing about the matter this evening. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy moved Amendment No. 72:
- Page 37, line 37, at end insert ", and
The noble Lord said: My Lords, an applicant is told that he must carry out various procedures and, if he fails to observe them, he will experience a delay in the process. However, if the employer fails or prevaricates in relation to the procedures, nothing will happen. We are saying that some sanction should be imposed on the employer. If the employer has informed the employee within seven days of receipt of the written statement of the investigations, that is all right. But the employer must do something and, if he does nothing,
Lord Wedderburn of Charlton: My Lords, I want to make one point before my noble and learned friend replies. I hope that nothing will be said here about investigations being uncertain. The employer must only say what investigations he has made, and therefore there is no question of uncertainty here. That point was raised previously.
The amendment concerns a simple matter of fairness. The employee must commence the procedure and then wait for 28 days. We say that if the Government insist that he waits for 28 days, at least he should be entitled to know what is going on. Therefore, in the first week, his disability or inadmissibility to present a case to the tribunal will not apply if the employer does not tell him what steps he is taking to investigate the matter. What is wrong with that? As my noble friend suggested, some obligation should be placed on the employer. This is a minimum obligation and it is surely just.
Lord Falconer of Thoroton: My Lords, this amendment takes us back to our earlier debate about investigations. I do not want to repeat the same arguments here that we dealt with in relation to that. Suffice it to say that we feel that our amendments to Schedule 2 deal effectively with that issue while avoiding the use of the term "investigation". I believe that that is at the heart of what my noble friend is submitting here.
As a separate issue, I believe that the amendment seeks to impose obligations on the employer as part of the admissibility regime. Both my noble friends are nodding in that respect. As I argued earlier, it is not our intention to use this section of Part 3 to impose obligations of this kind. Therefore, we oppose it on that ground.
However, the way in which the amendment is drafted puts up another barrier to an employee bringing a claim. If my reading is correct, the criterion imposes a limitation on an employee bringing a claim and that limitation is wholly dependent on the actions of the employer; namely, the employee could not access the tribunal unless the employer, within seven days of receipt of the Step 1 letter, had informed the employee of the results of an investigation into the issue. On the face of it, it would seem that an employee could never access the tribunal if the employer did nothing during that period. I cannot believe that that is the desired result. Therefore, even within its own terms, the amendment appears to be defective.
Lord Wedderburn of Charlton: My Lords, my noble and learned friend will remember that we experienced a problem in relation to one of our amendments in Grand Committee when he interpreted it as meaning the exact opposite of what it did mean. With the greatest respect to my noble and learned friend, he is now doing the same with this amendment. I may be wrong but I believe that that is the case.
In order to make the matter clear, perhaps I may read the subsection as it would read with our amendment:
Lord Falconer of Thoroton: My Lords, I obviously treat with great respect what my noble friend said. However, with regard to the wording, it is utterly clear that the consequence of not carrying out the action set out in proposed new paragraph (c) is, as my noble friend read out:
Lord McCarthy: My Lords, I believe that the Minister now understands what we intend to do. We could argue all night about whether the amendment contains the right words. But he is right; we do not want to do the reverse. We want to do that terrible thing, as he told us at one point: we want to benefit the worker by putting a little restriction on the employer. That is what we want to do. That is often what we want to do. If we have used the wrong words, there is a long tradition in this House in which the Government says, "We see what you want to do but it is not properly drafted. Take it away. We shall write a proper amendment and you will hear from us in due course". The Minister could say that, if that is what he wanted to say, but we are benefiting the worker, and he does not want to say that.
I shall ask the Minister again. Let us assume that the Minister or a member of his staff had drafted the amendment. Can he tell the House whether he is likely to accept a small amendment which puts some kind of pressure on the employer? That is what we want to do. We feel that this matter is so one-sided that the employer can sabotage the procedure by refusing to act. If he refuses to act, there should be some way in which the worker can say, "As I have not heard from you; as you were not present; as you had gone away, I take it that I can now go to the tribunal". That seems to us to be perfectly fair.
Lord Falconer of Thoroton: My Lords, I accept the chiding of my noble friend Lord McCarthy, because of
First, we feel that we have dealt with the investigations provision by way of amendment to Schedule 2. Secondly, we do not think it appropriate to have restrictions on the employer's right to bring claims in this particular section. On both those grounds we are not minded to accept the substance of the amendment.
(c) the employer has informed the employee within 7 days of receipt of the written statement of the investigations which he has made into the grievance".
"An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies"—
that is, the grievance procedure; and,
"the requirement has not been complied with",
and,
"the employer has informed the employee within 7 days of receipt of the written statement of the investigations which he has made into the grievance".
If the employer has informed the employee of his investigations, then the proposed new paragraph will apply. If the employer has failed to say what investigations he has made, the employee can go to a tribunal. That is what the amendment means and not what my noble and learned friend suggested.
"An employee shall not present a complaint to an employment tribunal".
Therefore, the consequence of the amendment is that the employer must do something before the employee can present a complaint. I believe that the wording is fairly clear.
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