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The noble Baroness said: My Lords, I make no apology for introducing—as I did in Committee—an amendment designed to protect employees who seek to exercise employment rights available to them by law. The first part of the amendment stipulates that an employee has a right not to be subjected to any detriment because he is proposing to take, or is suspected of proposing to take, any steps under statutory dispute resolution procedures. The second part deals with dismissal and stipulates that an employee who is dismissed shall be regarded as unfairly dismissed if the reason, or the principal reason, for the dismissal is that he was proposing to take, or was suspected of proposing to take, any step under statutory dispute resolution procedures.
My noble friends and I are surprised that no such protection is set out on the face of the Bill. A no-detriment clause—a no-victimisation clause—appears in much legislation concerned with employee rights. Recently, the Tax Credits Bill received its Second Reading in this House. In that Bill, Schedule 1, "Rights of employees"—the right not to suffer detriment—is a lengthy schedule designed to give precisely the protection that we are seeking with a no- detriment clause in this Bill.
In Committee the Minister, while expressing sympathy for my proposal, claimed that it was not necessary because it was covered elsewhere in legislation. He stated:
In that case, why do the Government feel that it is necessary to give protection in legislation to employees seeking to invoke rights under the Tax Credits Bill but not necessary in the case of the Employment Bill? I believe that it is necessary to give to employees protection of the kind that we are seeking in this amendment. If all employers were entirely scrupulous when dealing with their workers, legislation would not be needed at all.
However, we know only too well that that is not so. The employer/employee relationship is rarely an equal one. As we know, membership of a union can alter the balance, but many employment environments are not union organised. We know that bullying goes on in many work places. The Work Foundation, formerly the Industrial Society—I and my noble friend Lord Gladwin were council members of the society—has recently undertaken research which shows that
There is ample reason to insist that employees seeking to exercise their rights should have some protection and that that should be on the face of the Bill. Employers should know that if they seek to intimidate workers into abandoning rights which the law says they should have, they face the strong possibility of losing before an employment tribunal, with the cost that that is likely to entail. Should they seek to dismiss they are going to lose anyway. I beg to move.
Lord Wedderburn of Charlton: My Lords, in supporting the amendment moved by my noble friend Lady Turner I wish to speak also to Amendment No. 109 which is concerned with a remedy for victimisation.
There is a sense in which, under parts of the Bill, victimised workers could be the underclass of this legislation. My noble and learned friend Lord Falconer of Thoroton recognised in a previous debate on Report concerning Schedule 4 and Clause 32 that a bad employer might well say to a worker, "If you threaten to take me to a tribunal, I will take you off the overtime rota" or, as my noble and learned friend cited as an example, "I will put you on dirty jobs".
The Acts of Parliament call that "detriment" and we use the same language. But in real life, at the place of work, it is known as victimisation. When workers are victimised by their employers because they propose to enforce their rights, whether it is the right to a national minimum wage or to support union recognition, or even to complain about a breach of safety regulations that puts lives in danger, the Bill says that they cannot enforce that remedy against victimisation immediately—remedies that have been included in every piece of employment protection legislation from both administrations—unless they initiate procedures asking the employer to reconsider the matter and then wait another 28 days during which there is no protection against being victimised further.
That decision, which some see as a decision to punish workers already punished by their employers for daring to enforce rights at work, will be made much worse if the Government refuse to incorporate adequate victimisation clauses in the Bill. They are not extraordinary or unusual; they are perfectly normal in legislation that deals with employment protection rights and employment protection obligations on the part of employers. They are concerned with actions which can make workers' lives miserable just because they take the lawful step of attempting to register access to justice to enforce rights. Ministers rightly claimed credit recently for increasing the ambit of employment protection in Britain, but protection without enforcement is no protection at all.
There is no protection for the worker who is not allowed to breathe the name of the tribunal. That is why Amendment No. 108, moved by my noble friend
Since Amendment No. 109 may not be fully published in Hansard, I shall read it in full:
I cannot urge the Government too strongly to ensure that this is not the first Employment Bill which fails to make adequate provision for victimisation. Every previous Bill, under all administrations, has provided against victimisation for daring to enforce one's rights as a worker and for daring to take steps which are lawful under the legislation. That is all that the amendments seek to do. I support the case made by my noble friend and urge the Government to accept Amendment No. 109 also.
Lord McCarthy: My Lords, I want to turn the Government's attention to a narrow but vital issue. In Committee we debated, over five columns of Hansard, what the existing position was; whether there was, in the field of labour law, protection against victimisation and detriment; where it was, and how we could be certain about that, and where it was not.
At col. CWH372 the Minister gave us the nearest we got to a solid statement. But the more I read his words, the more doubtful I was that we had all we needed. If I understood him rightly, he gave us three related statements. He said that,
The Minister moved on to "detriment short of dismissal" on a wide range of grounds in the 1996 Act. That sounds as good as we had in the protection on dismissal. But he went on to say that from time to time further ones had been added. That suggests again that something is left outside. We heard nothing about the criteria used for adding the further ones. There was no list; no definitive announcement of where they exist or where they do not exist. So I suggest we are now in the position of total chaos; we just do not know what the position is.
The Minister then changed tack and started to tell us why he could not accept our amendment. He said that the Government were right to be cautious; that our amendment was rash. He said that there was no evidence that "broad rights" are needed. I had not heard that term before, which is not saying anything. But my noble friend Lord Wedderburn had not heard it either. He could not tell me what "broad rights" are. How broad is "broad"? What about a "narrow" right?
So there is no evidence that we need broad rights. I take it that it is a reference to our amendment; that it creates broad rights because it is intended to be comprehensive. The Minister then said,
Again we asked for more evidence. My noble friend Lord Wedderburn asked for a particular case. The Minister said:
I conclude by asking yet again a number of precise questions. First, which statutory rights are and which are not protected by the Employment Rights Act 1996? Secondly, in what legislation, if any, are those which are left out to be found? Thirdly, with regard to detriment short of dismissal, do the Government intend to add more to the list? If so, how many will be added? I think that we are entitled to have this
"VICTIMISATION
(1) Part 5 of the Employment Rights Act 1996 (c. 18) (protection from suffering detriment in employment) is amended as follows.
(2) After section 47C there is inserted—
"47D VICTIMISATION
An individual to whom section 29 and Schedule 2 to the Employment Act 2002 applies has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the grounds that the individual has taken or proposes to take, or is suspected of taking or proposing to take, any steps under statutory disputes resolution procedure."
(3) In section 48(1) (complaints to (employment tribunals)) after "47C" there is inserted "47D".
(4) Part 10 of the Employment Rights Act 1996 (c. 18) (unfair dismissal) is amended as follows.
(5) After section 104B there is inserted—
"104C VICTIMISATION
An employee who is dismissed shall be regarded for the purpose of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee has taken or proposes to take, or is suspected of taking or proposing to take any step under a statutory dispute resolution procedure.""
"It is beyond dispute that since dismissals for asserting a statutory right are automatically unfair by statute, no sensible tribunal would find a dismissal for using one of the statutory disputes procedures fair".—[Official Report, 26/3/02; col. CWH 372]
As to detriment, he claimed that there was no evidence that "broad rights" not to suffer detriment are needed. I emphasise, in his view, "broad rights" are not needed.
"An individual to whom section 32 applies"—
that is, a worker whose access to justice through a tribunal is limited—
"has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the grounds that the individual has communicated or proposes to communicate, or is suspected of communicating, a complaint to an employment tribunal when prohibited by that section to present the complaint".
It may be that the Government do not like the words,
"when prohibited by that section",
and would prefer, "when his complaint is not admissible". If so, I would understand their accepting it in spirit and producing words of their own at Third Reading. The amendment provides the perfectly normal, customary defence against dismissal as an unfair dismissal on the same grounds.
"there is protection in the Employment Rights Act 1996, and elsewhere, for employees who are dismissed for asserting a wide range of statutory rights".
How wide we do not yet know. Are they comprehensive? Suspiciously not, because a "wide range" suggests something left outside. Secondly, intending to reassure us—this may relate to the area outside the wide range, I am not certain—he said that,
"no sensible tribunal would find a dismissal for using one of the statutory dispute procedures fair";
in other words, if one used statutory procedures one could not say it was a fair dismissal. He said, "no sensible tribunal", but of course he cannot tell us that all tribunals will be sensible. So though it looks good, it does not really satisfy.
"I need hardly say"—
though he went on to say—
"that any such broad rights"—
here comes the cloven hoof—
"would add greatly to the potential for tribunal complaints".
We have been through this over a long period of time. I shall not ask if he has any evidence for that, because I know he has not. But he believes that the CBI says it would,
"add greatly to the potential for tribunal complaints".
"I do not have the facilities to go back to all legislation ... I will have to write to ... Lord Wedderburn ... I will copy the letter to everyone else who has taken part in the Committee".—[Official Report, 26/3/02; col. CWH 374.]
I have spoken to my noble friends. They have not received a letter. That was said 12 weeks ago. The letter has not been written. Therefore, as I say, we are as mysteriously uninformed as we were.
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