Employment Bill

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Alan Johnson: We can deal with the detail in the regulations. We want to ensure that a procedure started within the three-month period can be completed through an extension. However, my example concerned a discipline case. In a grievance case, the first time that most employers hear about the grievance is in the employment tribunal. In a grievance case in which the person who has made the complaint has been seriously ill, that person might not be in a position even to start the procedure until after the three-month period has elapsed. We are not talking about six years. We do not envisage that the regulations will stretch it even beyond a year. I hesitate to say what will be in the regulations, other than that it will be the subject of wide consultation.

We have to cater for this eventuality so that we are able to say to the person concerned, ''It's clear that you didn't have the opportunity to commence your claim within the three-month period.''

The hon. Gentleman asked about the backstop. That is a legitimate point, but it can be dealt with in the regulations. I am asking the Committee to accept the principle that we need to cater for people who could not even begin the process within three months.

Mr. Hammond: Will subsection (2)(c) operate rigidly? In other words, will the Minister specify circumstances in which proceedings begun out of time would always be treated as having been begun within time, or will he give the tribunal a discretionary power?

Alan Johnson: I would hope that we can be as tight as possible in terms of giving examples of where it could happen. However, I do not want to remove the tribunal's discretion. We cannot envisage in this Room all the circumstances that could arise whereby someone with a perfectly legitimate case to take to an employment tribunal has been debarred because of a lack of flexibility.

Mr. Hammond: With respect to the Minister, if he wants to give the tribunal the power to deem that an application made out of time is treated as having been made within time, the wording of subsection (2)(c) is faulty. It allows regulations to make provision treating proceedings begun out of time as having been begun within time, but does not allow them to make provision to allow a tribunal to treat proceedings begun out time as having been begun within time. The draftsman seems to have in mind a set of circumstances in which proceedings begun out of time would in certain circumstances be deemed to have begun within time.

I am encouraged by the Minister's recognition that there needs to be a backstop date. I shall give him a simple, practical, everyday example of where the provision might be onerous for the owner of a business. When selling a business, it is customary to be required to make a series of warranties about the state of the business, one of which will typically be that there are no outstanding claims by employees and no claims that are capable of being made by employees-in other words, that any event that could give rise to a claim is already out of time. The prudent vendor would have to disclose a circumstance that had occurred at a time that meant that any claim was by then out of time but still potentially within the remit of subsection (2)(c).

It would be helpful if the Minister could throw light on what the draftsman precisely intended in 2(c). The purpose of the amendment has largely been served by focusing the debate on what the period of time, or backstop date, should be. We could have the debate when the regulations are published, but I suspect that they will be chunky and that many similar issues, which are not exactly earth-shattering but are none the less important, will be raised. During a 90-minute debate, not everything will be dealt with, so either on Report or in the other place, the matter should be further probed.

Understandably, the Minister did not want to commit himself to a year, but I sense that he was tempted by the idea that a year might be the right backstop. If, later in the Bill's passage, he were able to give a clearer indication of a backstop so that an employer could know that he was definitely clear of liability for a claim, that would also be helpful.

11.30 am

Alan Johnson: In the case of warranties, an employment tribunal has the discretion to extend the time limit-there is no time limit, in effect-where it is not reasonably practicable for the individual to submit the case. That discretion exists and I hesitate to interfere with it; we want to supplement it with defined circumstances and a time limit in the regulations, but we do not want to detract from the tribunal's discretion, which is rarely used at the moment. That will not make the employers' position any worse, as the hon. Gentleman said, and it will make it a great deal better in the circumstances to be defined in the regulations.

Mr. Hammond: That is helpful and has thrown light on the issue. I will reflect on it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.

Clause 33

Non-completion of statutory procedure: exclusion of claims

Mr. Hammond: I beg to move amendment No. 63, in page 37, line 19, leave out 'may' and insert 'shall'.

The Chairman: With this it will be convenient to discuss the following amendments: No. 59, in page 37, line 19, leave out 'any of'.

No. 46, in page 37, line 30, at end add-

    '(4) Nothing in the regulations shall prevent a claim if there are exceptional circumstances which would make preventing a claim to an employment tribunal or preventing a employment tribunal from hearing a claim unjust or inequitable.'.

Mr. Hammond: Interestingly, the Trades Union Congress brief on the Bill expresses the view that the Government would table amendments to clause 33. I will be fascinated to learn whether any hon. Members can throw light on what those might have been. I have no information, but I studied the provisional selection list and the blue pages of the Order Paper on Monday morning in eager anticipation of seeing Government amendments. If the Minister intends to table amendments to the clause at a later stage, it would be courteous of him to tell the Committee. It would be odd to consider a clause that the Government already anticipate that they will amend.

Amendment No. 63 will be familiar to those members of the Committee who have been awake throughout the proceedings. It would replace the word ''may'' with ''shall'' in the first line of the clause, and so make it clear that the Secretary of State will use regulation-making powers to make provision for the purpose of excluding claims in cases where statutory procedure has not been complied with. I understand the preference for using the permissive term in the architecture of the Bill, so this is a probing amendment to ensure that the Minister will use its powers. Without wanting to labour a point that has been mentioned many times, the Bill is a package of measures, some of which will help employees to enforce their rights, others of which will help employers to deal with vexatious or unreasonable claims, or with claims that had not complied with procedures that would have dealt with them better than an application to a tribunal.

To put the point bluntly, if there are six clauses, all of which say that the Secretary of State may do something, three of which will greatly benefit the employees and three of which will benefit the employers, there would be a problem if the Secretary of State implemented the three favourable to one side and did not implement the three favourable to the other side. That is why I seek an assurance from the Minister that he intends to use the powers to make provision for excluding a claim where procedures have not been followed.

Amendment No. 59 would mean that the Secretary of State's regulation excluding a claim where procedures had not been followed would have to apply to all the jurisdictions listed in schedule 3, and not to a cherry-picked selection. It may or may not be right for the Secretary of State to select some jurisdictions as appropriate for exclusion of claims where procedure has not been followed, and for others not to be appropriate. If the Committee is to scrutinise the Bill and understand what its intention, the Minister has to come clean about which jurisdictions he would and would not intend to apply the power to. I look forward to hearing the Minister's response, and in particular, to hearing whether he can throw any light on the suggestion in the TUC brief, that there will be Government amendments.

Brian Cotter (Weston-super-Mare): Clause 33 gives the Secretary of State the power to regulate to exclude claims to an employment tribunal where there has been a failure to follow any part of the new statutory procedure. We want to promote the use of internal grievance procedures, but we must accept that the use of such procedure is not necessarily appropriate in all cases. We must recognise that fact. We must protect employees who might have a reasonable excuse for not partaking in such an exercise.

The TUC has outlined where internal procedures might be inappropriate in its response to ''Routes to Resolution''.

    ''We believe that for discrimination cases, it may often be inappropriate for a worker to go through an internal procedure, particularly in a small business where the person hearing the case, may be the perpetrator of the discrimination.

The TUC goes on to point out that , a recent report by the Equal Opportunities Commission, indicated that

    ''a third of women who had experienced sexual harassment named their line manager as the person responsible, and a third named the director or owner of the organisation.''

In cases where discrimination or intimidation is taking place, particularly in small firms, it would therefore seem inappropriate to expect the employee to go through the statutory procedure with the very person responsible. I am sure that we can all accept that.

 
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