Employment Bill

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Alan Johnson: I am sorry that I did not answer the hon. Gentleman's point—I meant to. The provision will apply in all circumstances, including individual redundancies. It will not apply to collective redundancies or to other collective procedures.

Norman Lamb: Why would it not apply in cases involving more than one redundancy? I recognise that other statutory requirements apply in collective redundancy cases, but for the individual being made redundant, it makes no difference whether 10 people or 100 people are being made redundant at the same time. Under schedule 2 as drafted, it will make no difference whether it is a single or a collective redundancy; the requirement presumably applies to the individual.

Alan Johnson: It will not apply to collective redundancies that are dealt with collectively by a trade union or other body.

Norman Lamb: Where does the schedule say that?

Alan Johnson: I do not know, but I know a man who does—[Laughter.] I shall post him a letter in a minute.

Norman Lamb: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 69, in page 57, line 17, after 'employee', insert 'in writing'.

The Chairman: With this we may discuss the following amendments: No. 70, in page 57, line 21, at end insert 'in writing'.

No. 71, in page 57, line 27, after 'employee', insert 'in writing'.

No. 72, in page 58, line 2, at end insert 'in writing'.

No. 73, in page 58, line 6, after 'employee', insert 'in writing'.

No. 74, in page 58, line 19, after 'employee', insert 'in writing'.

No. 75, in page 58, line 23, at end insert 'in writing'.

No. 76, in page 58, line 27, after 'employee', insert 'in writing'.

Mr. Hammond: I shall attempt to brief, and I shall not mind in the least if the Minister seeks in his reply to answer the last question raised by the hon. Member for North Norfolk. It was an interesting one and I, too, would be pleased to hear an answer to it.

The amendments probe the Minister on the question of whether all the steps in the procedure have to be dealt with in writing. The initial statement by the employer in the case of a dismissal or discipline procedure, and the initial statement by the employee in the case of a grievance procedure, clearly has to be in writing. It says so in the schedule. But it does not say that each of the subsequent steps must be in writing. After the appeal meeting, when, according to the schedule, the employer must inform the employee of his final decision, it seems self-evident that that must be in writing.

Without wishing to be over-bureaucratic, I would be horrified by the idea that a procedure that starts in writing can end up with the employer saying at the end of the appeal meeting, ''Right, that's it Fred, I have made my decision, you are still fired,'' with nothing appearing in writing. I hope that the Minister will tell me that this is unnecessary and that I have missed something, and that each of the steps will be in writing. I look forward to hearing that from him.

Alan Johnson: No, I am not going to tell the hon. Member that. What I am going to explain is that we have to be clear and avoid being over-prescriptive. This is a concern that has been raised by my hon. Friends, and one in particular.

We have considered the matter carefully previously. The philosophy behind this is that we should give scope to the parties to choose whichever method of communication, written or verbal, suits them best, for some of the reasons that the hon. Member for Tatton mentioned in a previous debate. We have to remember that these procedures will apply to 960,000 micro-businesses employing between one and four people. Many of those businesses will not use written communication to any great extent. Indeed, some may have limited clerical facilities. The employer or the employee may also have poor literacy skills. Therefore, we have limited the written part of the standard procedure to step one, the definition of the issue—what is the issue, in terms of a grievance by the employee, or a discipline case by the employer against the employee? That is such a basic aspect of the entire process that it must be put in writing. Both parties will then share, as far as possible, a common understanding of the complaint.

Norman Lamb: I entirely understand and accept what the Minister says about the importance of starting off with something in writing, but is it not equally important that there is clarity of understanding between the two sides as to the outcome of the investigation? If it is any step short of dismissal, not to have the next stages in writing, seems to be a recipe for a total lack of clarity and something that should be avoided. The Minister refers to the fact that small businesses may have limited clerical facilities, but if they can write one letter at the start, surely they can write a confirmation later.

Alan Johnson: I will go through that, because it is crucial to the issue. We have agreed that the basic point, in principle, has to be in writing, and then there is a common understanding of the issue. The modified grievance procedure is shorter, but it actually has more obligations to communicate in writing. We envisage that the modified grievance procedure would apply to a situation where an ex-employee wants to raise a grievance with a former employer, probably in terms of a constructive dismissal case. The practicalities of this special situation make it difficult to envisage that face-to-face communication would have much of a role. We make no provision for meetings to occur in the modified two-step procedure on a grievance. In this context it makes sense to require communication to be in writing. So, in the modified grievance procedure, it is in writing at both of those steps, because the employee has left the company and there is no face-to-face communication.

Mr. Hammond: I am surprised by what the Minister is saying. Does it not strike him that since it will be necessary to establish that standard procedure has been followed, that task will be made infinitely more difficult if there is no written evidence of the outcome of each step? The Minister spoke about people with limited literacy; there will also be those with limited language understanding capabilities. Does the Minister not think that having a written decision is the ultimate safeguard against misunderstanding? If nothing is in writing, is he not creating a situation in which there will almost inevitably be more dispute and misunderstanding? Even someone with a poor command of English can be given something in writing and have the opportunity to go away and have it explained to them. If they receive something only aurally, there will be every future opportunity for misunderstanding and dispute.

Alan Johnson: It is a judgment. That would be going too far given that we are applying the legislation to all businesses, particularly very small ones in which there is an informal relationship between an employer and one or two employees. At the beginning of the process, information would have to be in writing because there is a reason to get to the core of the argument, the grievance or the discipline. I fully acknowledge the point made by the hon. Member for Runnymede and Weybridge that written communication has obvious advantages. It may help to avoid uncertainty, which could help employment tribunals if unresolved disputes are eventually referred to them.

The point about the dispute procedure is not how we roll the wicket for an employment tribunal case, but how to resolve disputes in the workplace. We want to help those who employ one or two employees to resolve issues before they reach tribunal. We must not lose sight of that.

Mr. George Osborne: How is a tribunal supposed to establish what took place in the in-work disciplinary procedures if no written evidence of it exists beyond the original piece of writing? My worries about the burdens on small business would be neatly dealt with if the Government accepted the amendment to clause 36, which will be moved later, dealing with removing small companies from the procedures.

Alan Johnson: That would not be welcomed by small business. However, we will discuss clause 36 after we have dealt with clause 35. The hon. Gentleman raises the point that we must consider the situation at an employment tribunal. May I drag us back a little and emphasise that the three-step procedure is to help the employer and employee avoid getting to a tribunal in the first place? We are not always talking about cases of discipline and dismissal; all kinds of things come before an employment tribunal.

If I was an employer and the hon. Member for Runnymede and Weybridge was my one employee—[Interruption.] It may happen one day, although it would be unfortunate. A point is put in writing and I, as the employer, consider it. In my two-manned garage workshop in which we are repairing a car every day, it should be enough for me to say, ''You are quite right. Problem settled.'' To say to an employer that because we have a certain procedure he must find a word processor—I understand that that is something that is still used, although it is very 20th century—or a typewriter or pen and paper and be forced to complete every stage of the procedure, would be unnecessary and over-burdensome. Our proposals will not stop people from going through those steps, or from following the ACAS code that advises written communication.

Norman Lamb: To continue the analogy, would not the Minister's employee be left entirely confused, since, under standard procedures, his misconduct would require the service of a written warning? Established disciplinary procedures, with guidance from the ACAS code of practice, clearly require employers to go through a process of verbal warning, written warning and so on. The confusion for both the employee and the employer will be that that imposes no requirement to put anything in writing, yet ordinary, established procedures clearly indicate that a written warning is appropriate. Where does the employer stand?

4.30 pm

 
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