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Page 6, line 44, at end insert--
("Arbitration scheme: constraint or pressure by employers etc.
212B.--(1) An employee shall not be subject to constraint or pressure, directly or indirectly imposed upon him by an employer or other person, connected with his agreement to take part or to continue to take part in an arbitration to which a scheme under section 212A applies.
(2) An employee may apply to an employment tribunal in respect of a contravention of this section, and where the contravention is proved the tribunal shall make a declaration and may award such compensation to him as is just and equitable against any such employer or other person.
(3) Where a tribunal makes a declaration under this section, the employee may apply to the court which, where it finds that the constraint or pressure is continuing, may make such order as seems to it just and equitable."").

The noble Lord said: I refer to a situation in which a worker's rights depend upon the agreement established between him or her and the employer. One must understand that in some firms at any rate the inequality of bargaining and negotiating power may be such that some further protection is required. The Committee may be pleased to hear my next point. I know from anecdotal evidence that an interesting set of developments is taking place on just this question in the United States. Unhappily--or perhaps happily for the Committee--the written evidence which was supposed to arrive in the post has not yet done so. I know that in the 7th Circuit Court of Appeal and, I understand, in a case that has been referred to the Supreme Court, the following issue will be discussed. An employer may tell an employee, "You agree to a grievance arbitration procedure and I shall do this or that" while implying that he will do no such thing unless the employee goes ahead with the procedure.

Some protection is required for employees. We in this Chamber do not live in such an unreal world as many people believe. We know perfectly well that employees will be leant upon in some cases when they do not belong to a good independent trade union or when they

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do not have technological skills that the employer cannot do without. Surely therefore the Government must agree with the words of the amendment which states,


    "An employee shall not be subject to constraint or pressure ... imposed upon him"
to agree to take part in arbitration or to agree not to do so. I should have thought this matter is non-controversial. I beg to move.

Lord Meston: I support this amendment because the spirit of the provision, as I understand it, concerns voluntary arbitration--the emphasis being on the word "voluntary". However, I wonder whether it goes far enough. It seems to me to be an important corollary of this amendment that it should invalidate any term of the contract of employment which appears to require an employee to go to arbitration as opposed to exercising any of his other remedies before a tribunal or a court.

Lord Archer of Sandwell: I confess that I am persuaded by my noble friend that there could be a problem in some circumstances. I am certain that not all employers are so beyond criticism that they would not seek to apply pressure. I remind the Committee that the Bill already contains a safeguard in that the procedure does not operate at all unless either it has been instigated by a conciliation officer or the party has received advice of a kind which we shall debate in a few moments.

If there is pressure which goes beyond that--that is to say, to persuade an employee to ignore the advice which he is given, or to ignore what he is told by a conciliation officer--I am not wholly sure what safeguards we can include in this Bill. If there is that kind of pressure, there will also be pressure to prevent an employee from taking advantage of the safeguard which my noble friend now seeks to include. I believe that there is a difficulty with this. We have to accept that there are some kinds of pressure which may be used surreptitiously and against which there can be no safeguards in this Bill. I hope that my noble friend will see the difficulty which occurs to me.

Lord Haskel: I speak to Amendment No. 22. As my noble friend has said, this amendment appears to be reasonable in that it is aimed at offering a protection against being pressurised into agreeing to refer a case to the ACAS arbitration scheme. However, the Government do not consider that it is necessary in the light of other protections which are already, or will be provided for, in the Bill. There is the requirement to obtain independent advice from one of those specified in Clause 9, as amended, or a conciliation officer will have been involved. These are important protections and will seek to ensure that the decision to refer the dispute to arbitration is a voluntary one. If an employee considers that he or she is being pressurised to take part in arbitration, it is highly unlikely that he or she will do so. That person need not give his consent and in the absence of it the case will proceed to a tribunal hearing.

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This requirement for consent informed by independent advice is in my view the real safeguard against undue pressure.

Lord Wedderburn of Charlton: I am grateful to my noble friend the Minister for that reply. I restrain myself to pointing out that my amendment goes rather wider than I have perhaps given it credit for. It applies not merely to an agreement to take part in arbitration but also to an agreement to continue to take part in arbitration. An employee may have agreed to go to arbitration and a manager may then say to him, "You go on with this stuff and you will not get any more over time even if you are reinstated and come back here". We know that such things happen. This is not a game of chess, as it were, where we move pieces about. We are dealing with real people. I say to my noble and learned friend Lord Archer of Sandwell that I am of course speaking about those employers who will act in such a way. Fortunately there is a large number of employers who will not act in such a way. Perhaps the small employers might act in such a way rather than the large employers. However, an employer may say to an employee, "You have started this arbitration game and we do not like that sort of thing here". I believe that out of his mouth there has already been a constraint. Already there is something from which an employee needs protection. With the best will in the world, I do not find such protection in the Bill. If there is to be provision in the Bill, I look forward to that with gratitude.

Lord Archer of Sandwell: Before my noble friend sits down, will he address the point I made? If that kind of constraint is being applied to the employee, will he then apply to an employment tribunal in respect of the contravention?

Lord Wedderburn of Charlton: Yes. That is what happens all the time in employment protection law. At this point the worker says, "I have to give up here. I cannot go back to that employment". Of course, if he continues with the employment perhaps he does not need extra protection. In this provision I am giving him some extra protection in the form of compensation as a restraint upon the employer. I put it fairly high. It is true that he will lose that employment. I assume that that is so with such an unreasonable employer. But he would go away with some compensation. Under the Bill he receives nothing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7, as amended, agreed to.

Clause 8 [Effect of arbitration agreements]:

[Amendments Nos. 23 and 24 not moved.]

Clause 8 agreed to.

Clause 9 [Advice of non-lawyer]:

Lord Archer of Sandwell moved Amendment No. 25:


Page 8, line 32, leave out (""independent advice"") and insert (""advice from a relevant independent adviser"").

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The noble and learned Lord said: The law currently provides that a compromise agreement is valid only if the applicant has received independent advice from a qualified lawyer. That is already independently of this Bill. The Bill amends the provision, widening the qualifying sources of advice by providing that the applicant need only have received independent advice--that is to say, not necessarily from a qualified lawyer. Clause 10 provides that for the agreement to be valid, the person giving the advice must have been in possession of a,


    "'contract of insurance, or an indemnity'".

The amendment of my noble friend Lady Turner further alters that provision. It would restrict the qualifying sources of advice by providing that the advice comes from someone who is independent of the employer, and specifying three categories of person qualified to give the advice. The first is a qualified lawyer; that is the current position. The second is a full-time official of an independent trade union. I believe that the position of my noble friend Lady Turner is that it should be a full-time official. I would wish to add that many part-time officials or voluntary officials of trade unions may be well qualified to give the advice. Apart from that, I go along with my noble friend. The third category of my noble friend's amendment is that it should be,


    "a person of a category designated ... by the Secretary of State".

I accept that one advantage of my noble friend's amendment as against mine is brevity. I apologise for the length of some of my amendment. If they are accepted there are a fairly substantial number of consequential amendments. In Amendment No. 36 I propose that a person shall be within the qualification if he is a qualified lawyer, or,


    "an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent",
and authorised to give the advice. The onus would be upon the union to ensure that the person in question was competent to give the advice. The third category refers to a worker in an advice centre who has been certified as competent to give the advice, or a person of a description specified in an order by the Secretary of State.

I should make it clear that a person would not be a relevant independent adviser if he was employed or acting for the other party or was connected with the other party; or if the trade union or advice centre was the other party or connected with the other party; or if the person was charging for the advice--one thing we all want to exclude is someone making a fat profit from giving advice and giving it badly--or in the case of a person designated by the Secretary of State if he did not satisfy the other conditions in the order.

Amendment No. 36 then defines the meaning of "qualified lawyer" for the purpose of the other provisions. It defines an "independent trade union" and what is meant by "connected" for those purposes. I do not think that I would earn the undying gratitude of the Committee if I were to go into further details about the consequential amendment. We all seek to get the

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provision right. I do not guarantee that my amendment is beyond improvement. However, if my noble friend Lady Turner is prepared for my amendment to proceed and to withdraw her amendment, then at least we could meet any further criticisms when they arise. I beg to move.


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