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Lord Sharman: My Lords, I should like to speak to Amendments Nos. 83, 87, 88 and 90, which are in this group. These parts of Schedule 4 all deal with claims of detriment where an employee has claimed that he has
suffered a detriment already. This seems a simple issue of principle: where an employee is claiming a statutory right—as there would be in this case—it is difficult to see how one should prevent that employee from further pursuing a claim where the basis for the claim is that the employer has responded badly to the claim of that statutory right in the first place. It is a straightforward, simple principle. I support the amendment.
Lord Falconer of Thoroton: My Lords, I have listened very carefully to the arguments made in support of this large group of amendments. I agree with my noble friend on one point at least: this is a very important schedule. I agree with the noble Lord, Lord Sharman, that it raises very important points.
The admissibility policy and, to that extent, our whole dispute resolution policy, rests on getting this schedule right. So I will attempt, as I did in Grand Committee, to explain why the Government will resist any attempts to cut down the number of jurisdictions listed in it.
But first I must return to a point which has been made many times before by the Government. It bears any amount of repeating. Clause 32 simply does not have the drastic effects that my noble friends say that it has. My noble friend Lord Wedderburn said in Grand Committee that when one limits the right to the extent that Clause 33—which has now become Clause 32—limits it and prohibits any access to the tribunal, one is coming very close to destroying the right altogether.
Let me repeat, once again, for the whole House, what the admissibility criteria—these limitations which we are told come very close to destroying the right altogether—actually are. An employee with a grievance must write to his employer telling him what the grievance is. He must then wait 28 days to see if his employer responds. After that he is free to take the case to a tribunal.
We want people in all the jurisdictions that my noble friend has listed to tell their employer about the problem before they take him to a tribunal. We are not ashamed of that requirement. My noble friend alerts the House to all the important employee rights which we are covering in the schedule. We agree. Of course these are important rights and, yes, we do want them to be covered.
In our view it is perfectly sensible—indeed, it is right—that any employee who thinks that his employer has breached one of these rights should be required to tell his employer of this grievance and ask for a response to that complaint. I know that my noble friends are not alone in disagreeing with our view. I have read the Law Society's brief just as they clearly have, but the opponents are in a minority. We have been out to consultation on this and we have talked to all sides of industry.
My noble friend and the noble Lord, Lord Sharman, have brought to the attention of the House, in particular, the case of an employee who has suffered detriment at the hands of his employer. As the noble Lord and my noble friends will know, detriment can
take many forms. It can take the form of bullying and harassment; it can also take the form of being passed over for promotion, being given dirty and unpleasant tasks or not being given a good set of benefits and so on.There seems to be an assumption in the arguments that we have heard that it is unreasonable to expect someone who has suffered from detrimental action to write to their employer. Why? You have a grievance. It may be legitimate or it may not, but why on earth should it not be brought to the employer's attention before he is taken to a tribunal? He might be able to resolve the problem at a stroke. It could be based on a misunderstanding.
Of course the grievance may be real and the employer a thoroughly bad one. He will not reply or will give a dismissive reply to the Step 1 letter, and the case may go to the tribunal and be resolved in that way; or ACAS may be able to conciliate. All these routes are important and remain open. But talking to the employer first has got to be worth a try.
The premise of those who oppose our policy seems to be that people who have suffered detriment at work are rendered incapable or should not be expected further to communicate with the person who employs them. It is a false premise. Of course—and we have acknowledged this time and time again—there will be cases where the detriment, harassment or discrimination which has been suffered is so extreme that it makes the employee fearful of any further contact with his employer—and understandably and rightly so. As my noble friends acknowledged, the Government have promised complete exemptions in the regulations for those who have been subject to serious bullying, harassment and threats of violence. We will consult on the detail, but such exemptions will cut across all jurisdictions, not just those dependent on victimisation or detriment.
But exemptions from the statutory requirement will not be the norm and nor should they be. My noble friend Lord Wedderburn asked in Committee,
- "Why on earth should special rules apply to a person's ability to go to a tribunal and say, 'That's not fair'? Some workers will say, 'I'm not going near that employer again. Look what he did to me last week'".—[Official Report, 21/3/02; col. CWH 309.]
The question is revealing for it seems to assume that the employment relationship has already ended, but as the employee still works there, how can he possibly say that he is not going near that employer again? In most cases, but not in all—and this we accept—we believe that someone who is employed ought to be able to communicate their concerns to the employer, and that is all we are requiring them to do.
My noble friend Lord Wedderburn raised a question on Europe. It is claimed that the Government are watering down rights which emanate from there. We heard in Committee that working time rights and other rights which stem from the EU directive should be taken out of the Schedule 4 list. We are accused of failing to provide effective and appropriate remedies because of the admissibility rule. But there are already rules about procedures for getting to a tribunal. All countries have them. There are time limits and forms
to be filled in. Failure to meet the three-months' time limit in the United Kingdom means in most cases that the case cannot be heard. The worker would then be denied his day in court. I presume that that is accepted by my noble friend as not watering down European rights. We are adding another requirement, to raise the issue first with the employer in most cases. That is reasonable and proportionate. We have no reason to believe that we are in breach of any of our obligations in doing so.Finally, my noble friend raised the human rights issue. He knows that the parliamentary Joint Committee on Human Rights has concluded that the provisions of the Bill serve legitimate public interest objectives. My noble friend Lord Wedderburn has raised particular concerns with the Joint Committee. My noble friend touched in some detail on those in the remarks he made this evening. I am sure that the right course is to wait to see what the committee says in relation to the particular points that he raised.
In the light of what I have said, I hope that my noble friend and the noble Lord, Lord Sharman, will feel able to withdraw their amendments.
10.15 p.m.
Lord Wedderburn of Charlton: My Lords, I cannot say that I am very happy with that reply. It was more or less the one given in Grand Committee. Indeed, my noble and learned friend seemed to be quoting mainly from what I said at that stage and not what I said tonight.
As regards the exemptions in the regulations, we will see them when we see them. The CBI has said that the exemptions must be very limited. The Government seem to agree so I doubt very much whether they will deal with the issue. In respect of all other countries having the kind of provision which is in Clause 32 and Schedule 4, that is a travesty of comparative employment law. I do not know which examples my noble and learned friend would like to cite, but if he looks at the French, Italian or German procedures he will not find anything like Schedule 4 and Clause 32; indeed, that would apply to most other western countries.
As regards victimisation, the noble and learned Lord gave some very good examples. The worker comes home and he says to his wife, "I complained because I raised a question about health and safety as I thought someone was going to be killed. In reply the manager"—the worker would add an epithet—"put me on dirty tasks or he will pass me over for promotion". His wife says: "What are you going to do about that?". He says: "Oh, I can't do anything about that. I've got to spend another 28 days on dirty jobs".
What kind of justice and fairness do the Government think there is in that? Do they really think, sitting in comfortable offices, that workers who are put on dirty jobs as a response from unreasonable managers for daring to say that they wish to enforce their right to complain about derelections of duty in terms of health and safety will accept that without complaint? No wonder they say that they want to exclude collective issues—because, if workers cannot take issues up in the tribunals, they will take them up as collective issues; and a new generation of trade union officers will encourage them to do so, because a new generation of trade union officers is concerned above all with the interests of their members and not with loyalty to this or that schedule or to the curious philosophy that tells us that being put on dirty jobs for 28 days does not matter.
Schedule 4, plus Clause 32, is a disgrace. It is a disgrace for those who should know better. It is a disgrace for a Labour Government. It is very sad that we should have to debate this matter with some 15 or 20 people instead of the 400 who turn out to protect blood sports against animals rather than Schedule 4's blood sports against workers. But there is nothing I can do except beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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