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Lord Falconer of Thoroton: My Lords, in relation to the first point, the Human Rights Joint Committee clerk has indicated that he would expect the report to be available next week. I do not know what the report will say. We will have to wait until then.
Secondly, in relation to whether the admissibility criteria under Clause 32 would apply to former employees, I said that it would not generally apply to former employees. For such people the maintenance of the relationship with the employer is not an issue. Therefore, there is less benefit in applying the admissibility regime to such situations. The one exception to that rule is constructive dismissal. We went into some detail with noble Lords when we were discussing the amendment tabled by my noble friend Lady Turner. We were debating the treatment of constructive dismissal at Amendment No. 79. Therefore, we need to consider precisely how it would apply in those circumstances.
Lord Sharman: My Lords, the Minister was right in two aspects of his response. First, Clause 32 is a critical and important clause of the Bill. I would not disagree with him on that. Secondly, I would not disagree with him as to the Government's aims in that matter. I believe that they are entirely laudable. The issue between us is whether Clause 32 achieves those aims. On that matter I would like to reserve my position until I have read fully what he said in Hansard. We may want to come back to this at Third Reading. In the meantime, I beg leave to withdraw the amendment.
The noble Lord said: My Lords, I am deeply disappointed that the Government and the usual channels have insisted that we take Amendment No. 81 tonight. With Amendment No. 81 I have to speakand I intend to do so because this is out last opportunityto Amendments Nos. 82, 84, 85, 86, 89 and 90. They are all about Schedule 4. I shall do so as briefly as I can. However, since it concerns the whole schedule which applies to the whole of Clause 32, it would be wrong of me not to put a case whereby
Schedule 4 sets out the range of employment protection statutes under which the enforcement of certain rights will become conditionally inadmissible under the terms of Clause 32, either because they are not complied with or because they have been complied with and the applicant must wait 28 days.
The statutory rights in Schedule 4 which describe the ambit of Clause 32 fall into three groups. They are all covered in the various lines which we would challenge in Schedule 4. The first group are statutes dealing with sex, race and disability discrimination. The second group are provisions relating to workers who have been victimised for proposing or seeking to enforce their basic rights. The third group are provisions that derive from rights under European Union law.
Of course we appreciate that the Government's primary aimthey say it isin these provisions is to encourage settlement at workplace level. There is no complaint about that and as the noble Lord, Lord Razzall, said, the question is whether the ambit and the method of their trying to do so is at all reasonable or proportionate. As to the third groupthe European Union rightsI say no more today than that grave doubts have been raised in many quarters whether it is proper to limit the enforcement of these rights in a manner proposed when the directives require an adequate, effective and deterrent method of enforcement. That applies to the Equal Pay Act, the Sex Discrimination Act, the Working Time Regulations and the European Works Council Regulations. The Government have said that they believe that is nothing to which European law would object. I wish they would set out their reasons for that and I expect them to do so today.
As regards discrimination, the limitations are applied to two gender protections, unequal pay and sex discrimination; to race discrimination; and to disability discrimination. Is it reasonable or proportionate to the mischief to be avoided to say to a disabled worker against whom an employee has illegally discriminated, "Send the employer a letter. Oh, perhaps you have done that and you are still being discriminated against at work illegally. Well, wait 28 days and see what happens"? And is it so to say the same to a worker being discriminated against on grounds of race? Today I picked up in the Printed Paper Office a new code of practice on the duty to promote race equality. I found nothing in it that suggested that those suffering racial discrimination should be barred from the tribunals for 28 days even if they had sent the necessary letter to their employers.
Why should the Government's legislation say to a woman subjected to gender discrimination in pay or conditions, "Yes, you sent a copy of your statement to the manager who did this. Of course the record shows there is next to no prospect of his acting any differently in the future but you must go back to work for a month with the same manager, see what he says, put aside
The logic of the final category of statutes in Schedule 4 is even more doubtful. These six enactments cover the right to complain to tribunals for workers who have been subjected by unscrupulous employersthey are a minority but nevertheless exist as the cases illustrate very wellto victimisation which has been imposed for no reason other than having dared to enforce or propose to enforce their rights in the tribunals. The grounds that relate to victimisationdetriment in the statutesinclude being victimised for complaining about discrimination against them for being a trade union member; voting in a union recognition ballot or campaigning for or against union recognition; proposing to claim the minimum wage or tax credit; acting as a member of a European works council or standing as a candidate; carrying out the functions of a safety representative; or complaining to or taking action against the employer over serious imminent danger to life and limb at the workplace. That in a year when the number of deaths at work has increased for the first time in many years. The grounds include also acting as a workers' representative for consultation and taking proper time off for training, maternity or family reasons.
If a worker is victimised for any of those reasons and proposes action to enforce his rights, under Clause 32 as applied by Schedule 4, he cannot go to the tribunal. Even if a worker has been punished for proposing to enforce his rights and notified his grievance, he is barred from the doors of the tribunal for another 28 days. The Government say, "If you do what we want, you can have a second chance". What kind of protection does the worker have against non-payment of wages, victimisation or harassment at work during those 28 days? Why do not the Government pass a special protection during that period?
Ministers said, in response to our propositions in regard to victimisation, that they will make an exception for bullying. Not all victimisation will count as bullyingas my noble friend Lady Gibson will be the first to say under her Dignity at Work Bill. The
I am astonished that the Official Opposition cannot even be bothered to take up the case of those vulnerable people. Although victimised, under Clause 32 and Schedule 4, they will not have the right to the tribunal.
Baroness Miller of Hendon: My Lords, I certainly do not intend to sit here and be attacked in that way. The noble Lord says that he is surprised at the way in which the Official Opposition is behaving. He said exactly that in Committee. I thought that he had got that issue out of his system. It was unnecessary to repeat that comment tonight.
Lord Wedderburn of Charlton: My Lords, what is necessary in moving this amendment is not, with great respect, for the Opposition to judge. I am astonished that none of the Front Benchersperhaps other than the Liberal Democratsappears to think that it is disgraceful that people who are victimised at their place of work will be barred from the doors of the tribunal simply for proposing to enforce their rights.
It gets worse. The list in Schedule 4 produces extraordinary inconsistencies. I wonder whether my noble and learned friend can justify them. A worker who is victimised for saying that he will enforce his minimum wage and make the employer pay it is not allowed to go to the tribunal unless he begs the employer to set the matter right in a letter. Even then, the employee cannot go before the tribunal for a month. The Law Society and others pointed out long ago that under Section 20 of the National Minimum Wage Act 1998, an enforcement officer can go to the tribunal whether or not the worker has sent a letter and enforce the worker's rights to a minimum wage. What kind of consistency is that? The worker cannot go, but the enforcement officer can.
Similarly, my noble friend must take account of the fact that the list in Schedule 4 includes various cases of detriment or victimisation, but it does not include Section 12 of the Employment Relations Act 1999. Section 12 is a case where a worker has been victimised on the ground that he has taken part in asking for a union representative to accompany himone has a right to be accompaniedat a hearing. If that is his complaint he can go to the tribunal. But if he has been victimised because of an unfair dismissal complaint or because he has not received a proper wage, or even if he has complained about health and safety dereliction on the part of the employer, he cannot go to a tribunal. What kind of sense and consistency is that?
The arrangements for Clause 32 and Schedule 4 are furthermore quite disproportionate to the problem identified by the Government. The Human Rights Act and the European Convention on Human Rights, Article 6, which prohibit disproportionate limitations on access to justice to enforce rights are very much at the centre of the 12th report of the Joint Committee on
Indeed, that was the Government's position, although I appreciate that subsequently they have retreated from it to some extent. I quote from the Department of Trade and Industry press notice of the speech of the Minister of State in July 2001 to which I hope my noble and learned friend will pay attention. The Minister said:
Here I am in some difficulty. My noble friend Lord McIntosh gave a somewhat different account of that. I must quote my noble friend in extenso because the Secretary of State has alleged that the Joint Committee on Human Rights quoted him out of context. That is a serious accusation by the Secretary of State and as a labour law scholar I resent it very much. Therefore, I have to quote my noble friend Lord McIntosh completely, as I did at Second Reading, so that we do not have more of such nonsense about context.
On 26th February I put to him the question of whether workers had attempted to solve the problems of the workplace and whether there was a compensation culture, as has been alleged by the CBI and all other employers' organisations, and he said:
I entirely agree with that, but it was not the case on which the Government built Clause 32as it now isand Schedule 4. I will quote further if the Minister believes it is out of context, but I have done enoughespecially at this time of nightto sustain the fact that the Government have retreated from their explanation in July 2001 and have now not relied on the SETA survey for Clause 32 and Schedule 4.
When the Secretary of State wrote again to the Joint CommitteeI believe that the letter is in the Library; I was kindly sent a copyshe did not rely on the research of Burgess and his colleagues, which is well known to be the explanation of why employment tribunal applications have increased regularly since 1972 from five social causes and also an increase in jurisdictions; she relied upon what she called the "admittedly imperfect" SETAthe Survey of Employment Tribunal Applicationswhich,
The use of limiting employees' access to justice over the range of statutes set out in Schedule 4 is disproportionate and proportionality is, as the European Court of Human Rights insisted last year in the Fogarty case, essential to the enforcement of limitations on access to justice. It said that if the limitation,
Schedule 4 shows how many employees will be barred from access to justice in regard to Clause 32. It has three types of case. I say to my noble and learned friend that as you go through them they are less and less justifiable. They involve workers' European rights; workers who are sent back to work to suffer discrimination for 28 days on racial, disability, or sex grounds; and who are victimised by employers even for proposing to enforce their rights under existing statutes.