| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord McIntosh of Haringey: My Lords, the first of the amendments provides extra protections against dismissal and detriment for employees who use the statutory procedures. The second provides similar protections in the case where an employee has been "prohibited" from making an application to a tribunal under Section 32 of the Act. My noble friend Lord Wedderburn anticipated that I would not be very happy with the use of the word "prohibited". He is right. If we were in general to support the amendment we would accept it subject to a subsequent amendment referring to "admissibility". That is not the core of the argument here.
We debated similar amendments in Grand Committee on 26th March. I need to repeat some of the same arguments. There are two cases. First, there is the case for providing protections against dismissal. There are already significant protections against abuse in those areas. Importantly, it is already automatically unfair to dismiss a person for asserting a statutory right. It should be remembered that the Bill extends statutory rights by the procedures set out in Schedule 2. Many grievances which employees air with their employer involve a statutory right. Their complaints therefore constitute the assertion of a statutory right. And, of course, virtually all applications to tribunals, including inadmissible ones, also involve the assertion of a statutory right. So, employees are already protected against dismissal in those circumstances.
There are some cases where complaints do not involve statutory rights. Tribunals assess the fairness of such dismissals against the general provisions on unfair dismissal, which are found in Section 98 of the Employment Rights Act 1996. Our considered judgment is that the prospects of a tribunal considering it reasonable for the employer to dismiss an employee simply because he tried to raise a concern with him are unreal in almost all cases. But we must not forget that there might be a case where the employee was dismissed for vexatiously and repeatedly raising complaints via internal procedures—a circumstance which needs to be borne in mind when considering this issue.
It follows from that analysis that there are already adequate protections against dismissal for employees who make reasonable use of the statutory procedures or who make inadmissible applications to tribunals.
I now turn to the protections against detrimental actions short of dismissal for using the statutory procedures. There is no general protection against unfair treatment by employers involving actions short of dismissal. To that extent, I understand the arguments that have been put. Instead, legislation establishes protections in this area on a case-by-case basis.
The range of existing protections is limited. They target key areas of potential abuse. They are listed—mostly—in Sections 44 to 47C of the 1996 Act. I shall
mention some because I was specifically asked which cases are protected against detriment—health and safety, Sunday working for shopping and betting workers, working time, trustees of occupational pensions schemes, employee representatives, time off for study or training, protected disclosures and leave for family and domestic reasons. That is not an exhaustive list, but I hope that it is a reasonable, proportionate and sensible response to the question asked.Having said that, I must apologise to my noble friend Lord McCarthy for not writing to him. It is quite true that I have not written to him. Of course I will do so. I make clear that I shall do so before the Third Reading of the Bill. He is entitled to an apology; he has an unqualified apology.
We must ask whether it is necessary to add these new core areas to that list. We are not convinced that there is a good case for so doing. It is far from certain that problems will arise in practice. If one looks at the analogous circumstances where employees assert a statutory right at their workplace, there are no protections against action short of dismissal for such cases. But what evidence is there that victimisation—a detriment—of this type occurs? We know of none. Likewise, if one looks at the position of the bulk of the working population who are currently covered by voluntary grievance procedures, do we see much, if any, evidence that employees are disciplined for using those procedures? I think that the answer to that must be "no".
It follows that there is no evidence to suggest that those new protections against detriment are needed. If, in the light of experience, the issue arises on any scale in practice, then the Government can reconsider the position. But, from the evidence so far available, there are no sound reasons for adding to the existing list of protections in the 1996 Act.
5.15 p.m.
Lord Wedderburn of Charlton: My Lords, before my noble friend sits down, perhaps he can answer two questions. First, in relation to his first argument—namely, that the situations which our amendments aim to cover are covered by the protection of a worker not being victimised for asserting statutory rights—I am sorry to have to set this matter out, but my noble friend did not set it out in detail and it is necessary to put the question to him.
The right not to be victimised for asserting statutory rights is, I am sure he will agree, set out in Section 104 of the 1996 Act. But the term "statutory rights" does not as he suggested—indeed I think he stated—cover all statutory rights, because for the purpose of that section, subsection (4) sets out which rights are covered. They are:
- "(a) any right conferred by this Act".
- "(b) the right conferred by section 86 of this Act",
- "(c) the rights conferred by sections 68, 86, 146, 168, 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992".
- "(d) the rights conferred by the working time regulations 1998".
Secondly, the Minister says that detriment short of dismissal—what his noble and learned friend referred to in the previous debate as an employer who puts a worker on dirty jobs or excludes him from overtime for daring to approach the tribunal—is not needed. That is not by reference to any section, even a bad section as in the first document, but because either it does not happen, or, as I understood him, we need not bother about it; it will be dealt with in some uncertain way by voluntary procedures.
If the Minister looks at Schedule 4 to the Bill, which he or one of his ministerial colleagues defended so strenuously, he will see the list of detriment provisions to stop employers victimising workers for trying to enforce their rights under specific Acts. They are: the Race Relations Act 1976; the Trade Union and Labour Relations (Consolidation) Act 1992; the National Minimum Wage Act 1998; the Working Time Regulations 1998; and so on. They are all listed in Schedule 4. We are trying to insert a provision in the Bill to stop workers being victimised by actions short of dismissal for the purpose of their rights under the Bill and their opportunity to go to a tribunal. How can the Minister possibly say that there is no need for such protection under the Bill?
So, first, will the Minister withdraw his reliance on Section 104 of the 1996 Act? Secondly, will he tell us why protection against victimisation for action short of dismissal is unnecessary?
Lord McIntosh of Haringey: My Lords, with the leave of the House, I am in danger of exceeding the rules of Report stage. I can only respond briefly by saying that I did not claim that all cases of protection against dismissal involve statutory rights. If my noble friend reads what I said in Hansard, he will find that I said that there are some complaints that do not involve statutory rights. I argued that there could be cases, even where there is no statutory right, in which, although a tribunal would normally, in our considered judgment, be unlikely to consider it reasonable for an employer to dismiss an employee simply because he raised a concern with his employer, an employee could legitimately be dismissed for vexatious behaviour that was not concerned with a statutory right.
Lord Wedderburn of Charlton: My Lords, with great respect to my noble friend, under which section?
Lord McIntosh of Haringey: My Lords, I think that I have already exceeded the rules of debate. I shall of
course write to my noble friend about the questions that he raises, which he could have raised in his first intervention.
Baroness Turner of Camden: My Lords, I find it disappointing that my noble friend the Minister has said little different from what was said in Grand Committee. I still do not understand why it is apparently felt reasonable to have a "no detriment" clause in other legislation, including the legislation that I have just cited. The Tax Credits Bill has a lengthy schedule entitled, "Rights of employees", which includes a no detriment clause, including cover in respect of dismissal. If anyone seeks to secure his right to tax credits and feels that he is being victimised for trying to pursue it, that lengthy schedule gives him cover.
There is no cover in the Bill and there has been no adequate response to our submissions today or in Grand Committee. I am sorry that that is the case because in Grand Committee the Minister went some way in expressing sympathy for the case we advanced. As has been said, he promised to write to my noble friend Lord Wedderburn. He also said that he would copy the letter to everyone else who took part in the Committee,
- "and my letter will include a reflection on the matters that I am asked to reflect on".—[Official Report, 26/3/02; col. CWH 374.]
| Next Section | Back to Table of Contents | Lords Hansard Home Page |