Previous Section Back to Table of Contents Lords Hansard Home Page


Baroness Turner of Camden: I thank my noble and learned friend for introducing this extremely comprehensive amendment, which I fully support. It goes far beyond and is much more detailed than my amendment and is very valuable for that reason. I particularly welcome the inclusion in Amendment No. 36 of the paragraph relating to the official of a union who may or may not be a full time official but who has to be certified by the union as being an appropriate person to give the advice. I think that that is a good amendment.

I shall not move my amendment in the light of this comprehensive amendment proposed by my noble and learned friend.

Baroness Blatch: For the benefit of those following the debate, has the noble and learned Lord, Lord Archer of Sandwell, spoken to Amendments Nos. 25 to 29, 36, 37, 39, 42 to 47 and 49 in this grouping?

Lord Archer of Sandwell: I certainly intended to. That is why I said that I doubted I would earn the gratitude of the Committee if I dealt with them individually. But I am grateful to the noble Baroness. I omitted to say at the outset that it would be for the convenience of the Committee perhaps to discuss them altogether.

Lord Haskel: For the benefit of the Committee, I should like to speak to Amendments Nos. 25 to 29, 36, 37, 39, 42 to 47 and 49, which are the amendments of my noble and learned friend Lord Archer.

The Government fully support the amendment which he has tabled. At Second Reading a number of Peers made it clear that they felt that Clause 9, unamended, would be likely to enable unscrupulous people to set up as advisers. The Government consider that the persons and the categories specified in my noble friend's amendment are suitable to provide advice on compromise agreements, especially given the safeguards which he has so elegantly built into the clause.

On Question, amendment agreed to.

[Amendments Nos. 26 to 29 not moved.]

Clause 9, as amended, agreed to.

Clause 10 [Indemnity cover]:

Lord Archer of Sandwell moved Amendment No. 30:


Page 8, line 44, at end insert ("profession or").

The noble and learned Lord said: This is an amendment simply to set right what I believe was an oversight. The insurance provisions of the Bill as initially drafted would apply to solicitors who are members of the Law Society. Some solicitors are not members of the Law Society but they are still provided

21 Oct 1997 : Column 687

for by the indemnity fund. It was not intended to exclude them and this amendment ensures that we do not. I beg to move.

8 p.m.

Lord Haskel: The Government support this amendment.

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clauses 11 and 12 agreed to.

Clause 13 [Internal appeal procedures and unfair dismissal awards]:

Lord Archer of Sandwell moved Amendment No. 31:


Page 10, line 34, leave out from ("was") to ("but") in line 36 and insert (", at the time of the dismissal or within a reasonable period afterwards, given written notice stating that the employer provided the procedure and including details of it,").

The noble and learned Lord said: The purpose of Clause 13 is to encourage parties to resolve disputes closer to the source, before they resort to tribunal proceedings. The merits of that principle are too obvious to require argument. It is a general principle of jurisprudence that those aggrieved should avail themselves of those remedies that are immediately to hand before they range further afield. However, at Second Reading and in subsequent discussions a number of my honourable friends urged upon me the need for safeguards. For example, a party ought not to be penalised for failing to avail himself of a procedure of which he does not know.

There are already some safeguards which I believe will be effective. Noble Lords will recollect that Section 207 of the 1992 Act requires that, in any proceedings brought before a tribunal, the ACAS code of practice on disciplinary practice and procedure is admissible in evidence and is to be taken into account. That code provides, among other things, that there should be a disciplinary procedure; that it should so far as possible be one that is accepted as reasonable by all those affected; that the management shall seek to involve employees in compiling the procedure; and that trade unions should, where possible, have a role in that process. It also provides that employees should be made fully aware of the procedure and how to avail themselves of it.

Reflecting further on what was said at Second Reading and subsequently, I tabled this amendment. It seeks to provide that, before an employee is penalised for failing to make use of internal procedures, he must have been notified in writing at the time of the dismissal or within a reasonable period afterwards that the procedures exist and as to what they entail. So it would not be sufficient that an employee should have been told at some time in the distant past. I believe that this provision will help to implement the real intention of the clause, which, after all, is not that anyone should be penalised but that people should avail themselves of a sensible internal procedure. I beg to move.

Lord Wedderburn of Charlton: My noble and learned friend has put a case for his amendment that is

21 Oct 1997 : Column 688

unanswerable. I wonder, however, whether between now and Report some slight difference might be made to the wording in the light of the decision, which we did not discuss before but which I know he now has, in the case of Goold v. McConnell in 1995. The reason the case is important is that the Employment Appeal Tribunal decided that it was,


    "an implied term in a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have",
and that they should have a written statement as to that procedure.

Although the judgment goes wider, one reason that the obligation arose was Section 3 of the Employment Rights Act 1996, which, coming through other Acts before it, amounts to the implementation in British law of the 1991 directive. The directive required us to ensure that notification was given to employees at the time of the contract of employment--a provision that we had largely implemented previously, after 1963. Given Section 3 of the 1996 Act, the worker or employee ought to have notice of the grievance procedure at the time, within two months of his engagement, unless he is engaged by an employer with fewer than 20 employees, an exception that it is possible to make under Section 3 of the Act.

I noted with care my noble and learned friend's remark that the requirements that the employee must be told at the time of dismissal, or within a reasonable period afterwards, were separate to and additional upon the requirement, as he said, at some distant time in the past, at the time of his engagement. I therefore put a question to be considered by him and his advisers before Report. Would it not be worth including in this text a provision to make clear that it is a requirement in addition to any requirement under Section 3 of the 1996 Act?

Lord Archer of Sandwell: Before my noble friend sits down, the point he raises is largely a drafting one; namely, the amendment achieves what we all want it to achieve. I certainly undertake to examine the point and to consider the matter with him before Report stage.

Lord Meston: I hesitate to interrupt, but it occurs to me that the amendment does not go quite far enough. As I understand the present position in law, an internal appeal procedure, if exercised, does not necessarily prevent time running for the purposes of commencing industrial tribunal proceedings. So although the amendment goes some way towards ensuring that an employee is provided with information about the internal appeal procedure if he does not already have it, it does not meet the mischief in some cases of the employee thinking that, although he has been dismissed, the fact that he is exercising the internal appeal procedure operated by his employer will prevent time running for the purposes of applying to the employment

21 Oct 1997 : Column 689

tribunal. That has always struck me as unfortunate. The tribunals have a discretion; nevertheless, it can work against the employee to his considerable detriment.

Lord Archer of Sandwell: I am grateful to the noble Lord for pointing that out.

Lord Haskel: The Government wholeheartedly support my noble and learned friend's amendment. We firmly believe that, where possible, parties to disputes should resolve those disputes voluntarily between themselves rather than by recourse to a third party or a tribunal.

As my noble and learned friend indicated, since the tribunal must take into account the circumstances of the case and the ACAS code of disciplinary practice and procedures in employment, an employee will not be penalised for failing to use a procedure which the tribunal considers to be unfair.

On Question, amendment agreed to.

Baroness Turner of Camden moved Amendment No. 32:


Page 11, line 12, at end insert ("but no reduction shall be made under this section where a reduction has already been made in the compensation awarded to the employee under section 122").

The noble Baroness said: This issue can be dealt with quite simply. The Bill provides for a reduction to be made in the award where the employee has failed to use internal procedures. My amendment is very simple. As I understand it, there can be a reduction in the basic award where there has been some degree of industrial fault. The intention is that there should not be a double reduction: a reduction in the basic award for industrial fault as well as a reduction because the employee has failed to use the internal procedures specified in the Bill. It is a simple point, and I wonder whether the Minister would be good enough to respond to it. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page