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Lord Wedderburn of Charlton moved Amendment No. 77:
- Page 38, line 13, leave out paragraph (b).
The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendment No. 78. Amendment No. 77 relates to Clause 32(7) as set out in the Bill.
Subsections (6) or (9) require the employee to take the first step in the grievance procedure. It is a provision of an Act of Parliament which states that before one can go to the tribunal one must take the required steps. As a matter of fact, it also states that even if one has taken the required steps one is still a disabled person because one cannot go to the tribunal for 28 days.
I take the first point. If an Act of Parliament says to me, as a citizen, "This is a step which you are required to take on pain of limited access to justice", that is very clear as long as the step is set out clearly. I fully accept that my noble and learned friend and my noble friend Lord McIntosh have said that they want to be clear. Now that they have cleared up the matter regarding a copy of the statement, they are clear that the employee must send the statement of the grievance, or a copy of it, to the employer. Nothing could be clearer than that.
So when an Act of Parliament says, "This is the step that you are required to take before you can get to the court", I expect that to be interpreted by those whose job it is to interpret it—and those whose job it is to interpret, first, the legal meaning of a provision in an Act of Parliament and, secondly, whether or not the facts that are before them cause that provision to apply are the courts, or in this case the tribunals. In the old days—and, theoretically, in a sense today—the question of law is for the court and the question of fact is for the jury. Neither question is for the executive. Yet the Bill says that it is for the Minister to decide what constitutes compliance with the requirements.
In Grand Committee, we suggested that this provision had the tones of a Henry VIII clause. There are many definitions of a Henry VIII clause. I have looked them all up and will quote them if my noble and learned friend wishes, but that would be tedious. I shall simply say that if it is not like a Henry VIII clause in the old sense, it has distinctly Tudor overtones. It is the Minister insisting that he is going to decide what is compliance, not the courts—not the tribunal.
Indeed, the clause goes on to say that not only will the Minister introduce regulations stating what constitutes compliance with the requirement to send a letter, but he will make provision in relation to circumstances in which a person is treated as having complied—that is, he has not really complied, but the Minister will set out the circumstances in which the
tribunal must deal with the person as if he had complied—there is no other meaning to the phrase "treated as having complied".In Grand Committee, we understood that the Government may wish to comment on this provision. We said that we thought it proper, not that the executive should take over the functions of the courts, but that it should give guidance as to its views on compliance. But that was regarded as totally unacceptable on grounds which, without repeating the speeches made in Committee, were extremely arrogant. They verged on an insistence that the judicial functions of the court—in this case the tribunal—must be overridden by the views of the executive on what constitutes compliance in the first case or, in the second case, where there has not really been compliance but on what should be treated as compliance—and, inferentially, what should not. "What constitutes compliance" obviously implies that certain things will not be treated as compliance.
I cannot understand why the Government want to take this step of trespassing on the judicial functions of the tribunals. I just do not understand it. We offered them the idea of a code of practice. Obviously, any government can introduce such a code, introducing their ideas on what should be taken into account by the tribunal, judicially, in deciding on whether there has been compliance, on the facts, with the rules of the statute. But to say that the Minister is to decide what is compliance, and, more particularly, what is to be treated as compliance or not treated as compliance really does offend principles which I thought were established following the Donoughmore committee on Ministers' powers in 1932. I thought that that report had been accepted by governments of both parties since that time. It is extraordinary to see such a provision in paragraphs (b) and (c) of Clause 32(7)—which we suggest should be removed, and which the Government could easily replace on Third Reading in what might be termed a graceful acknowledgement of the judicial functions of the tribunals and the courts. I beg to move.
Lord Falconer of Thoroton: My Lords, these amendments seek to delete the regulation-making powers in subsection (7)(b) and (c) respectively. Both powers are most important. However, it is also important to emphasise that they do not relate to individual cases; they deal with categories of cases. They do not remotely seek to replace the view of the tribunal with the view of the executive.
Under the first power, we can make allowance for the case where English is not the language of the employee; under the second power, regulations can be used to exempt certain categories of grievance—say, cases involving the threat of violence—from the admissibility regime.
We have argued throughout all our discussions that we want to create as much certainty as we can in the application of the statutory procedures. We do not wish to leave too many questions to the discretion of the tribunals; that would create uncertainty. Hence
our policy is to use regulations to define the detail of how the statutory procedures should be applied across different circumstances.This does not trespass on the decision-making powers of the tribunal any more than any other regulations; for example, the tribunal rules. Therefore, we believe that the regulation-making powers provide a feasible, desirable and sensible means of providing certainty where it is appropriate to do so. I invite my noble friend to withdraw his amendment.
9.15 p.m.
Lord Wedderburn of Charlton: My Lords, I am grateful to my noble and learned friend the Minister for that reply, but I do not think that he will be very proud of it when he reads it in Hansard. Paragraph (b) does not say that the provisions in the regulations will set out what constitutes "compliance" in categories of cases; it spells out what constitutes "compliance". It can go as far as the Minister concerned likes. It is nothing to do with the exceptions for violence, intimidation, sex discrimination, and so on, because they were all dealt with under previous amendments; and, indeed, as my noble and learned friend knows perfectly well, they arise under different parts of the legislation.
Similarly, it is nothing to do with certainty, except in so far as the Secretary of State wants certainty on his say so; nor is it anything to do with the discretion of the tribunals. Indeed, I have never previously heard the judicial function of courts described as "discretion". I thought that that was fundamental and not a matter of discretion. The courts apply what the law says: what the law says here will be what the Secretary of State says, not what the courts find.
However my noble and learned friend dresses it up, this is a trespass on the judicial function of the tribunals. It would be perfectly simple for the Government to avoid that trespass by inserting into the legislation a code of guidance as to what they believe should be taken into account in deciding what is "compliance"—and, more particularly, what should be treated as compliance. I noticed that my noble and learned friend did not say much about the latter.
I am speaking to paragraph (c)—Amendment No. 89—as much as to paragraph (b) in this respect. Paragraph (c) is even more to be deplored in the structure of the clause: what is to be treated as compliance is an "as if" proposition. The Government are using the notion of certainty in order to take complete control of excluding workers from the tribunals. It is not concerned with certainty; it is concerned with the judicial function. Therefore, paragraphs (b) and (c) should be deleted. The Government should reconsider the position before we reach Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden moved Amendment No. 79:
- Page 38, line 30, at end insert—
The noble Baroness said: My Lords, we now turn to what I agree is a difficult issue; namely, constructive dismissal. We discussed the issue in Committee, but both I and my noble friends did say that we would return to it on Report.
Constructive dismissal occurs when work and working conditions are deliberately made so difficult for an employee that he feels there is no alternative but to resign. It is a device sometimes used by unscrupulous employers who wish to get rid of someone as cheaply as possible. It can take many forms. Demands may be made on a worker that he feels cannot possibly be met; for example, a series of demotions or transfers to unsuitable work. There can be bullying, possibly harassment—even sexual harassment—which management does nothing to prevent and perhaps even covertly encourages. There could be a failure to pay wages or deductions from wages. There may be health and safety issues, perhaps on a construction site where working conditions can be hazardous anyway and inadequate precautions are taken.
Of course, we do now have legislation in place that seeks to protect whistle-blowers in such circumstances. However, workers—particularly in a non-union environment—may feel too intimidated to use the protective legislation. There are industries where the presence of so-called "illegals", who are willing to work for low rates and to take risks, can act as a pressure on existing workforces.
If there is a union environment, then protection can normally be afforded to employees suffering in some of the ways that I have outlined. Sometimes the individual concerned, who may feel that he has no one to whom to turn, may feel so stressed that the only course open is to leave the job. I agree that such cases may be uncommon, but they do happen, often to very vulnerable people.
The objective of my amendment is to ensure that constructive dismissal is treated differently and that an employee in such a situation should not be expected to go through the various procedures laid down in the Bill before the case can be heard by a tribunal. It would be unrealistic anyway since relationships have usually broken down in such circumstances. In Committee, my noble friend the Minister expressed some sympathy with the case I made. However, the Government's position, as I understood it then, was that it was a matter best dealt with via regulations concerning which there will in any event be consultation. Nevertheless, I do think that there is a strong case for having such provision on the face of the Bill. Constructive dismissal is a term that is already widely understood, and it should be made clear to all concerned that in the face of this type of behaviour by unscrupulous employers to vulnerable people, an
"( ) This section does not apply to cases of constructive dismissal."
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