| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord McIntosh of Haringey: My Lords, with the leave of the House, we have to rely on what the Bill says. It seems to us that it is entirely clear. Indeed, in his final remarks, the noble Lord, Lord McCarthy, seems to be acknowledging that the Bill is clear and is asking us to act on misapprehensions which employers might have about the implications of the Bill before us. We cannot do that.
Baroness Turner of Camden: My Lords, I am entirely unconvinced by what the Minister has said. He referred us to the wording of the clause, which seems very clear to me. It states,
- "making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure".
I believe that the point I made in debate, emphasised by my noble friend Lord McCarthy, is that as the clause stands it will send out the message to employers that they do not have to bother very much about procedure even though they are supposed to have it. If they do not follow it, there is every chance that they will be able successfully to defend a case before an employment tribunal because it is not absolutely necessary that they adhere to all the procedures they are supposed to follow. That is entirely unsatisfactory.
Moreover, the message has gone out that the Government are reversing the Polkey judgment and that is generally known everywhere. It is even stated in the Government's own explanatory memorandum. To many people the reversal of that judgment may well mean in their minds that it is no longer so necessary to abide by procedures because if they do not employers have every chance of getting away with it at a tribunal. It is entirely unsatisfactory, but there is no point at this stage of the debate in pressing the amendment further. I hope that the Government will reconsider their position before Third Reading. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 96:
- After Clause 37, insert the following new clause—
The noble Lord said: My Lords, this amendment aims to introduce into our employment protection law a matter which has long been a criticism of a number of commentators. It suggests that where the employer fails to give to the employee a statement of the written particulars of his contract of employment, the employee should be able to bring a case before the employment tribunal for just and equitable compensation. Of course, that does not make up for the failure to have the proper terms of the contract of employment.
Indeed, everything in the law, from the contracts of employment legislation in 1963 and onwards has given the employee a right to have those terms within the stated period provided by the employer. It has always been a gap in the statutory particulars that the employee has not had a remedy immediately if he is not given the particulars that he should have. In the Grand Committee debate on parallel matters, the Minister described it as a failure to provide a stand-alone
The reason for having a right to compensation is that it provides a sanction against the employer and a warning to him that if he does not provide the particulars which the law says he must, then there will be some remedy. At the moment there is no automatic remedy other than a declaration from the tribunal which has been shown to be ineffective in a number of the cases involved.
In Grand Committee the Government argued that it was quite unreasonable to provide any sanction on the matter because just to fail to give the employee his written particulars of employment was not of itself a matter of damage. That point led us to advance this amendment again. I hope that the Minister will not reply by referring to the Government's amendments and the provisions in Clause 38, to which we shall turn in the next group of amendments. Although they affect the structure of the Bill in a rather complicated and unnecessarily complex manner, they do not provide an automatic remedy, as this amendment would, for an employee deprived of written evidence of his contractual terms in the statement of written particulars.
The reason why a stand-alone remedy—if one wants to use that kind of vocabulary—is appropriate is that a failure to receive the statement of the contractual terms in writing is damaging to the employee. Without the evidence that he should have to prove a matter, an employee is unable to know whether he has good grounds on which to claim that the terms of the employment have been broken. Frequently the tribunals and the Employment Appeal Tribunal have described a written statement of the contractual particulars of employment that an employer should give to an employee as "the best evidence" of what the contract provides. An employee is deprived of the best evidence of his rights under his contract of employment. In itself that is a good reason to enable him to bring an action for just and equitable compensation: he is deprived of the ability to claim when his contract of employment is broken.
Ministers have been quite obdurate on this matter, as on so many. But I hope that on this occasion they will either accept the amendment or explain to the House that they will adjust the remedies under Clause 38, or other parts of the Bill, to provide an employee, who is deprived of his right to have a written statement of his contractual terms, with a remedy in the employment tribunal. I beg to move.
Lord McIntosh of Haringey: My Lords, my noble friend Lord Wedderburn started by saying that he hoped that I would not bring into the argument Amendments Nos. 97 to 106 to Clause 38 that we debated with the paving amendments on Clause 31. I am afraid that I shall do that because those
Of course, some noble Lords feel that we should go as far as providing free-standing compensation for any failure to meet the written statement requirements. Amendment No. 96, which was first tabled in Grand Committee, seeks to do that. It seeks to introduce such a right to compensation not only where an employer has failed to meet the requirement to issue an adequate written statement but also for a failure to comply with the equivalent itemised pay statement.
In Grand Committee I made it clear that we believe that we are right to preserve some form of link between a financial penalty for a breach of the written statement requirements and a penalty for a breach under some other type of claim. We also believe that the existing remedy for a complaint under the itemised pay statement provisions deals proportionately with the abuse suffered. Generally speaking, I believe that the amendments to Clause 38 gained the approval of the Grand Committee when there was a considerable degree of confusion and dismay at the way in which Clause 38 was originally drafted.
This is a matter of balance. I recognise my noble friend Lord Wedderburn's good intentions in highlighting the importance of the pay statement, and in particular, the written statement of employment particulars, whose crucial role in dispute resolution is clear. However, I believe that the amendment would take us further than we want to go. We should not forget that Clause 38 introduces a new protection for employees, by creating a new penalty on employers. We are introducing a new right. There is no sense in which we are removing any right by tying the awards increase to complaints under the major jurisdictions and the existing remedy of supplying an adequate statement will still apply where the problem is solely that the written statement is inadequate or non-existent. To go beyond that and to introduce a stand-alone penalty would run the risk of undermining the effective consensus between employers and employees that there appears to be on this issue. I also believe that there is consensus in the House. I hope that the amendment will not be pressed.
Lord Wedderburn of Charlton: My Lords, in the face of that reply, for which I thank my noble friend, one is tempted to say that there is scarcely any amendment on the Marshalled List that one would want to press rather than this one. It has been said that the amendments to Clause 38 have already been accepted by the House. Of course, this is where they should be justified. Having read Hansard, they were debated in what was probably the most confusing debate of this Report stage because they were grouped under Clause 31. We could do nothing about that as they were all government amendments. There was no explanation
The balance dictates that an employer who has failed in his obligations to provide written particulars—obligations that he or she has been under since 1963—should not be vulnerable to an action for compensation in a tribunal. It is as though the amendment would take the Government further than they want to go because this part of the Act is a deal with the CBI, the EEF and the chambers of commerce, all of whose websites, which are available for noble Lords to read, contain plenty of documents to show that Parts 2 and 3 are a deal on which employers have dug in their heels and on which the Government are obdurate because they feel that their hands are tied, as do some other bodies. It is a deal on which they said, "We shall accept your paternity and maternity rights and we will even accept union learning representatives"—although they are not happy about that—"if you give us Parts 2 and 3 of the Bill".
As I said in Grand Committee, most of the Bill, with small exceptions on which we managed to get the Government to move, is set in stone. Even an employer who fails to give an employee his contractual rights on paper, which by law he is obliged to do, can escape any so-called stand-alone sanction. It is quite absurd. The Government will not change on this matter; there is nothing that we can do to make them, but they will reap an unhappy harvest from being so obdurate on such simple matters of fairness. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 [Failure to give statement of employment particulars, etc.]:
"COMPENSATION FOR FAILURE TO RECEIVE PROPER STATEMENT OF WRITTEN PARTICULARS
In section 12 of the Employment Rights Act 1996 (c. 18) (determination of references) after subsection (2) there is inserted—
"(2A) Where on a reference under section 11 an employment tribunal finds that an employer has failed to give to an employee a statement as required by section 1, 4 or 8, the tribunal may make an award of compensation to the employee of an amount that is just and equitable having regard to the seriousness of the employer's default.""
4.15 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page