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Employment Bill
8.34 p.m.
Consideration of amendments on Report resumed on Clause 32.
Baroness Turner of Camden moved Amendment No. 73:
- Page 37, line 45, leave out "may" and insert "shall"
The noble Baroness said: My Lords, in moving Amendment No. 73, I shall speak also to Amendment No. 74. My noble friends and I do not much like Clause 32, nor does the Law Society, as we have heard. In fact, it has said that the clause should be deleted and the purpose of their recommendation is to prevent the exclusion of claims where applicants have failed to take specified steps under the statutory procedure. My noble friends and I have not gone that far. I hope the Minister will agree that we have tried to be constructive. We have tried to make the clause more user-friendly.
Amendment No. 73 is a simple amendment. It seeks to delete "may" and substitute "shall", thus committing the Secretary of State to specify by regulation that subsection (4) should not apply in a particular matter. Subsection (4) seeks to prevent claimants raising cases with a tribunal.
Amendment No. 74 is extremely important. Subsections (2), (3) and (4) specify situations in which an employee may not present a complaint to a tribunal. The three subsections all relate to the requirements in paragraphs 6 and 9 of Schedule 2. They state that the employee must set out the grievance in writing and send a copy to the employer. Paragraph 6 relates to the standard procedure and paragraph 9 to the modified procedure.
As we have heard in relation to previous amendments, other conditions relate to time limits, a matter that has already been dealt with by my noble friend Lord McCarthy. Those conditions appear absolute. Subsection (5) appears to give the Secretary of State the ability to make regulations that may stipulate that those conditions shall not apply in relation to a particular matter, but the employment tribunal itself appears to have no powers.
My amendment gives the employment tribunal power not to apply subsections (2), (3) or (4) if that appears just and equitable to it. It appears to me that
that is sensible. The employment tribunal is the specialist body concerned. It has experience of dealing with past cases. There may well be situations in which it is fair and reasonable not to insist precisely on the requirements of Schedule 2. The workforce in the UK, as we have known, is becoming increasingly multi-ethnic. Of course, we want such workers to become fully integrated, but there may well be problems of language and culture. Such people need assistance but it may not always be readily forthcoming. Therefore, it seems sensible to give the employment tribunal power to override some legislative requirements such as those in Schedule 2 where it seems fair for it to do so. I beg to move.
Lord Falconer of Thoroton: My Lords, Amendment No. 73 deals with the regulation-making powers in subsection (5) of the clause. Those powers are designed to give some discretion to the tribunals when applying the third admissibility criterion, which is defined in subsection (4). The third criterion deals with the case where an initial application has been made within the normal period for making applications but has failed one or both of the first two admissibility criteria. As we have stated repeatedly, we want to give such individuals another chance to make an admissible application. Such individuals will need extra time to carry out the necessary steps. In some cases, this will carry them beyond the three-month period for making applications to tribunals.
We intend to allow for that by using the powers in Clause 33 to extend the time limit for making applications to tribunals. However, we wish to place some modest pressure on applicants to start using the relevant grievance procedure at an early point; otherwise, memories of the circumstances surrounding a case fade and the chances of sorting out a problem diminish. We therefore specify at subsection (4) that the employee should have taken the step 1 action no later than one month following the normal period for making applications to tribunals. In most cases, that will mean four months.
Generally speaking, that should not be difficult for employees to achieve. However, there may be some circumstances where it would be unjust or unfair to apply the third criterion rigidly. For example, the tribunal may take some time to decide that the initial application was inadmissible. Indeed, that decision may not be taken within the four-month period. The regulation-making power at subsection (5) provides the flexibility which tribunals need to deal with such cases. The regulations would define the types of situation where the tribunals should consider waiving the third criterion.
Amendment No. 73 would make it a duty on the Secretary of State to introduce such regulations. We have inserted various order-making and regulation-making powers throughout Part 3 of the Bill. None places a duty on the Secretary of State to introduce orders or regulations. I cannot see any reason to depart from that approach in this case. It is highly likely that regulations would be introduced. But there is no need to pre-empt the outcome of consultations with
interested parties by imposing a requirement that regulations must be introduced. I hope that goes some way to satisfy my noble friend Lady Turner.Amendment No. 74 gives a wide power to the tribunals not to apply the admissibility criteria in individual cases if they consider it "just and equitable" to do so. Such powers might be appropriate if we did not allow for special cases within the admissibility regime. But the clause already contains a variety of regulation-making powers allowing the Secretary of State to specify how the criteria could be applied to different cases.
We will use those regulation-making powers to identify the circumstances where the criteria can in effect be waived or modified to meet special circumstances. In devising the regulations, we will of course be trying to deal with special cases in a just and equitable way. For example, we can use the powers to deal with the position of disabled people who cannot write. Of course, it will be a matter for the tribunals to decide how the regulations apply to individual cases.
I should remind noble Lords that our proposed use of regulation-making powers has been accepted as justifiable by the Delegated Powers and Regulatory Reform Committee. We therefore do not need a further over-arching power giving extra discretion to the tribunals to decide whether to apply the criteria. That would create extra uncertainty and undermine the purpose of our proposed regulations. I hope that in the light of my explanation my noble friend will feel able to withdraw her amendment.
Baroness Turner of Camden: My Lords, I am obliged to my noble and learned friend for his explanation, but I am not at all happy about it. I do not understand why the amendment should import extra uncertainty to the present situation. I do not understand why it should not be possible to give employment tribunals the powers to deal with the situation under subsections (2), (3) and (4). Those subsections are of great importance to the applicant because they provide the basis on which he will not be able to get the case to the tribunal.
The tribunal is the appropriate body to say whether subsections (2), (3) or (4) should apply. I do not believe that our proposal would add extra uncertainty to what is not a happy situation anyway. I pointed out at the beginning that we do not particularly care for Clause 32 and we are not alone in that view. However, in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord McCarthy moved Amendment No. 75:
- Page 38, line 9, at end insert—
The noble Lord said: My Lords, we are still on complaints about grievances. This is a probing amendment in the sense that you probe where you do not believe you will gain any concessions but you would like to find out what the Government have to say.
No doubt we shall be told that we have done it before. It is another attempt to get the Government to define why they want to exclude certain types of grievance from the restrictions on access in Clause 32. We are hoping to discover some numbers. Seventy-five per cent of hearings are on grievances. It is a dominant part of the tribunals' work. Are the Government going to exclude 10, 20 or 30 per cent? They must know. How much exclusion will there be? Perhaps the Minister would say what proportion of the various types of grievances will be excluded.
Sometimes the Government talk as though when we see the regulations governing these provisions, a type of grievance will be totally excluded; it may not go anywhere near a tribunal. Sometimes they suggest that there may be an element of discretion, although where is left unclear.
Most of all, we are hoping for some principles on the logic of why the Government have put in barriers to access, then taken certain—as yet not completely specified—types of case out, or why they say that they will do so when the regulations are made. Why do they take some out and leave some in, and why have they not said a word about certain other types?
We tried previously to obtain Government comment. We tried, in framing our amendment in Committee, to look at what people had said; for example, the Minister in the Commons made frequent references to certain possible types of grievance that might be excluded. He said that minimum wages and harassment grievances and routes to resolution might not be covered. He said that exclusions might come about on reasonable grounds, mentioning bullying or intimidation as reasonable grounds for not applying the limitations on access.
In Committee, we sought to collect everything that had been said on the Internet and by Ministers. We wrote it all down: violence and intimidation; race; unlawful wage statements; and collective grievances. So as not to make the amendment negative, at the end we added any other exclusions decided by the Secretary of State.
But in Committee, my noble friend Lord McIntosh did not help us much. He said on 25th March:
My noble friend Lord McIntosh seems to be saying, "Out violence, harassment, collective bargaining and interim relief"—they will not be covered by the restrictions on access; no race and sex cases. Disability does not seem to be featured anywhere.
We are still asking for some sets of principles. The Minister has failed to say what other kinds of discrimination will be out or in, or why they will be out or in. Nothing has been said about disputes over terms and conditions, about failures to consult on redundancy, transfers and so on. But he did say something rather Delphic at the end—at least, he could have said it in a Delphic manner but it could have been that Hansard was misbehaving at the time. It was not the fault of Hansard; there were problems with the machinery when we were upstairs. He said:
At the end of the intervention of the noble Lord, Lord McIntosh, I asked him about principles. He said:
My final question is to ask desperately whether there is any logic to this; whether there is any kind of sense. I have looked at the main headings of grievances in the ES annual report. The Government seem to be saying that they are not going to apply the access procedures to violence, harassment, collective bargaining or interim relief. However, it seems that they will put in race and sex. They leave in a kind of limbo wages cases, breach of contract cases, redundancy pay, working time, equal pay, minimum wage, disability and discrimination cases. I ask again: what is the guiding set of factors, if not principles, that the Government will use to move matters in and out of the procedure? I beg to move.
"( ) The Secretary of State shall make regulations specifying complaints to which this section shall not apply which shall include complaints connected with discrimination on grounds of sex, race or disability, and of violence, intimidation, bullying, redundancy and collective grievances."
"It is our intention to be sparing in setting exemptions. As we have argued with other amendments, most employees should have little difficulty in fulfilling their obligations under this clause . . . we need to ask ourselves what special grounds may arise where it would be unreasonable to expect an employee to set out his complaint to the employer a little earlier".
Of course, that is just setting out his complaint, not the 28-day wait. He continued:
"We think that there will be some special cases"—
here comes another list—
"The threat of violence or other forms of serious harassment fall into this category. We do not want to force employees to raise a grievance as an individual complaint, if it has already been addressed as a collective issue by a union"—
so he takes on board what we say about unions. He continues,
"That is the second broad category. We intend to cover these two main categories of exemption in the regulations. There may be others which it would be sensible to add. For example, the amendment about interim relief may raise the need to exempt a particular set of cases. However, we cannot accept that the scope of the exemptions should be drawn as widely as this amendment implies. If we followed this approach, an exemption could be claimed in a large proportion of cases"—
which is the nearest we get to figures.
"It would mean that the admissibility regime would never apply, for example"—
here are some specific exclusions from exclusions—
"to any cases involving race or sex discrimination. It would seriously diminish the purpose of the clause".—[Official Report, 25th March 2002; col. 351.]
That seems to suggest that you have to put the big ones in.
"If there is any opportunity to compare the matters which I have listed as being exemptions we are prepared to accept with the list in this amendment between now and Report stage"—
I could not quite follow that—
"I should be very happy to do that".
But I am not clear what it was.
"If that means that we should be putting an agreed list"—
that sounds good—
"or a list which is acceptable to the Government, on the face of the Bill in this form—in other words, as a constraint on the regulation-making power—I am prepared to consider that as well".—[Official Report, 25/3/02; col. CWH 351.]
I should like to know whether that has been considered. We welcome the possibility of being asked to put forward a list; we welcome the possibility of discussing an agreed list.
"One could explore the possibility of looking for principles, but looking at this list"—
that is the list in our amendment—
"and looking at the things which the Government intend to put into the regulation—
so somewhere they have got a list—
"I am not sure that I can see a principle behind them".
So the Government do not have any principles. Where do you get the ones you put in and the ones you take out if you have not got any principles?
"Here we have a Bill with no principles. The Minister said that, not me".—[Official Report, 25/3/02; CWH 352.]
At that point I withdrew the amendment. We are putting a list in our amendments—it may be the wrong list—but the Minister seemed to be saying that.
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