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Lord Wedderburn of Charlton: My Lords, in supporting the amendment I shall speak especially to the issue of collective grievances.
The Government earlier adopted the most welcome position of putting on the face of the Bill the general principles on which the right to be accompanied will be accorded. They are not leaving the issue—as they previously insisted that they must—to regulations. In my submission, that same principle applies, in particular, to what are sometimes referred to as "collective grievances".
In terms purely of exposition of the subject of employment law, it is often convenient to divide individual rights from collective rights or collective grievances. But that is, in a sense, formalistic. Individual grievances relate very often to groups of workers and, although they are expressed in law as individual grievances, they frequently relate to grievances which are felt by a group of workers. Therefore it is a matter of basic principle when one introduces this fundamental division into an Act of Parliament to tell the House something at least about what it means. Of course the petty details may be dealt with in regulations, but not to tell us anything about how the division is envisaged borders on negligence or idleness.
In another place, my honourable friend Mr Alan Johnson repeated this on many occasions. He said, for example,
- "We also intend that in cases where fewer redundancies arise"—
- "and the matter has been dealt with as a collective issue between the employer and the union"—
- "Nor do we envisage that the statutory procedures should be used when the issue has been handled as a collective process".
- "We do not want to duplicate the process and force employers to go through a procedure several times when the issue is collective".—[Official Report, Commons, Standing Committee F, 18/12/01; col. 180.]
- "If there were a collective issue about the absence of a proper catering facility and the union was addressing that collectively with the employer, it would be unfair . . . to insist that the employer should deal with complaints"—
- "about the absence of facilities individually as well".
At col. 183, he then expanded the range—this is very important—and said:
- "it is unlikely to be possible to apply the statutory procedures to unfair dismissals arising out of industrial action because they arise out of a collective dispute".
I ask my noble and learned friend whether he meant "lawful industrial action" or "industrial action". If he meant "lawful industrial action", do we have to await the result of an interlocutory injunction application by the employer to know whether it is lawful or not?
In other words, some indication must be given as to what is meant by "collective issues" and "collective handling of grievances", especially in the light of the fact that at one point in the documents the Government have adopted the CBI notion that "exceptions must be narrowly drawn". What is the narrow drawing of a collective issue?
I appreciate that my noble and learned friend will probably say that we will know all about this when we see the regulations. The regulations are an Alice-in-Wonderland provision that none of us will see until we see the drafts some days before they are introduced. There is an obligation on the Government to tell the House something at this stage about what they mean by "collective issues" and "individual issues". I support the amendment.
Lord Falconer of Thoroton: My Lords, my noble friend Lord McCarthy said that the purpose of the amendment was to probe what exemptions there would be. He asked what principles would be applied; what would be the width of the exemptions; would they cover the matters referred to in his amendment or would they cover other matters. He then read a long extract from the speech of my noble friend Lord McIntosh in Grand Committee, in which my noble friend set out what the approach would be. The noble Lord referred to my noble friend saying that it is the Government's intention to be sparing in setting exemptions. It is the fact that most employees should have very little difficulty in fulfilling their obligations under this clause. They just have to raise a grievance in writing and wait 28 days. Anyway, they would have to set out their grievance in writing when application is made to the tribunal. No one is suggesting that they
should be exempt from meeting that requirement of the tribunal system. The employer would soon find out the grievance in any case.Therefore, 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. That sets out a basic principle, but my noble friend Lord McIntosh went further and indicated that there would be some special cases. My noble friend Lord McCarthy has gone through what my noble friend said. He referred to the threat of violence or other forms of serious harassment falling into the category of special cases. Likewise, 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 on their behalf. That is the point dealt with by my noble friend Lord Wedderburn. What is being referred to there is that if the matter has already been raised as a grievance collectively, and it is the same issue on which the individual is making a complaint, there is not much point in using the grievance procedure. That seems to me to be a perfectly clear principle. How it works in practice will depend on the individual case.
My noble friend Lord McIntosh also referred to interim relief. He made it clear that it is those kinds of things which would be referred to in the exemptions contained in the regulations. He also made it clear that there may be others which it would be sensible to add and by consulting fully on the draft regulations interested parties could give their views on this key subject.
My noble friend Lord McCarthy then asked whether we had considered putting them all into one list. The answer is that we do not want to set out a list until we have had a proper and full consultation on what should be in the exemptions. That appears to me to be extremely sensible and something which I know my noble friend Lord McCarthy, who throughout his career has emphasised the importance of consultation, would regard as a very important approach to these matters.
9 p.m.
Lord McCarthy: My Lords, I ask the noble and learned Lord to give way. I did not ask for a list but for the principles by which it was decided to put in some measures, exclude others and deal with others which we could not be told about. That is not a list, but a set of logical constructions.
Lord Falconer of Thoroton: My Lords, I am very sorry. At the end of the speech of my noble friend Lord McCarthy, he referred to what he described as the "delphic remarks" of my noble friend Lord McIntosh. I am sorry that I did not make the matter clear. As regards principle, my noble friend Lord McIntosh indicated the basis on which we would decide what the exemptions would be, but he made it clear that we would consult fully. My noble friend Lord McCarthy
shakes his head. I have failed, as ever, to satisfy him. But he should not get us wrong. We have made clear the basis on which we have approached the issue.
Lord McCarthy: My Lords, the noble and learned Lord says that the principles and their basis have been set out. Would he tell us now what they are?
Lord Falconer of Thoroton: My Lords, I could repeat for the third time the speech that was made by my noble friend Lord McIntosh, but I believe that other noble Lords would be wearied by it. We could not accept that the scope of the exemptions should be drawn as widely as my noble friend's amendment implies. If we followed that approach, exemption could be claimed in a large proportion of cases. For example, it would mean that the admissibility regime would never apply to any case involving sex or race discrimination. It would largely negate the purpose of the clause. For the reasons that I have given, I hope that my noble friend Lord McCarthy will now accept that we have set out the approach that we will take to the exemptions and that he will feel able to withdraw his amendment.
Lord Wedderburn of Charlton: My Lords, before my noble and learned friend sits down, I may say that perhaps I misheard. As I understand it, he said that a collective issue is one which has been handled collectively. Is that correct?
Lord Falconer of Thoroton: My Lords, I said that 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 on their behalf.
Lord McCarthy: My Lords, we are not getting anywhere again. I have just a few points. I do not know why the noble and learned Lord keeps saying that all one has to do and the only kind of disability that one suffers if one is caught by the access restriction procedure, is that one has to write a letter. If it were only that one could say that it is only those people who cannot write letters who will be excluded. But the noble and learned Lord has given me all kinds of other people who could write letters. Far more restrictions apply to this access procedure, as he knows very well. One has to wait 28 days as we keep on saying. It is nothing to do with writing letters.
If I understand him correctly, he says that it is reasonable to ask people to write a little earlier. I do not know what that means. Is one to be excluded if one has to write a little early or left out if one writes earlier? And once again, what about the 28 days? Why should some people be left an additional 28 days when others are let in without the 28 days? What is the distinction which says that race and sex will be on one side of the divide, but other forms of discrimination will be on the other? We do not want lists and we do not want "blah", but principles and the Government never give
them to us. I suspect that that is because they have not the slightest idea themselves. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendment No. 76 not moved.]
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