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Lord Archer of Sandwell: I am grateful to my noble friend for her concise introduction of the amendment. It is a matter which my noble friend Lord Haskel and I have considered. The difficulty is that it is possible for one of the parties to have behaved unreasonably twice. There would be unreasonable behaviour which led to the dismissal and then further unreasonable behaviour not to avail themselves of the redress. I wish to reflect further before I agree to my noble friend's amendment. I do not know the view of my noble friend Lord Haskel.

Lord Haskel: I am speaking to Amendment No. 32. As my noble and learned friend Lord Archer made clear, the intention of this clause is to encourage the use of internal appeals. But, as he said, there are cases where it might not be unreasonable for two deductions to be made: for example, if a dismissed employee unreasonably refused an offer of reinstatement. However, the tribunal will be able to take account of all the circumstances of the case.

Baroness Turner of Camden: I thank my noble friend for that response. I was most anxious to ensure

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that there was not a double penalty on the employee and that is what the amendment was about. I am grateful to my noble and learned friend for his acknowledgement that there could be a problem here. It is not my intention to press the amendment. It is a simple issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

Baroness Turner of Camden moved Amendment No. 33:


Page 11, leave out lines 13 and 14 and insert--
("(4) The amount of such a reduction shall not exceed the amount of two weeks' pay and the amount of such a supplementary award shall be such as is just and equitable, but where the complainant is not reinstated or re-engaged shall not be in any case less than the amount of ten weeks' pay.
(5) An amount awarded as a supplementary award under this section shall not be taken into account in the calculation of the limits on the amount of compensation under section 124 of this Act."").

The noble Baroness said: It is well understood that the purpose of this part of the Bill is to ensure that there are internal procedures and that they are properly utilised. At Second Reading I expressed some concern that such procedures might not be known to the employee or could have been imposed unilaterally without negotiation. The employee might therefore feel suspicious of them. To a considerable extent, the point is met by Amendment No. 31 to which the noble and learned Lord spoke.

The Bill also provides for a supplementary award to be made in certain circumstances where the employee has been prevented by the employer from utilising internal procedures. As I read the wording, the supplementary award which may be made if the employee has been prevented by the employer from utilising an internal procedure is two weeks' pay or, rather, not more than two weeks' pay. I believe that that is insufficient.

My amendment provides for a supplementary award of not more than 10 weeks' pay. If the intention is to encourage the use of internal procedures, it could be done in one way by making it more of a penalty on the employer if he prevents the employee from utilising the procedures. Therefore, if one gives up to 10 weeks' pay as a supplementary award at the discretion of the tribunal, it seems to me that it is surely not too much of a penalty to impose on an employer who has prevented the employee from utilising an internal procedure. I beg to move.

Lord Archer of Sandwell: I understand the purpose of my noble friend's amendment. However, I am bound to say that the intention throughout the whole of the Bill is that it should enjoy the confidence of both employers and employees. I think that she would agree that probably if her amendment were incorporated it would appear to be less than symmetrical as between the two. This may be a case where appearances are rather important. I am grateful to my noble friend for pointing

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out that the difficulty in her mind is addressed by Amendment No. 31. I hope that she will not wish to press the amendment.

Lord Haskel: I am speaking to Amendment No. 33. I agree with my noble and learned friend Lord Archer that in our view it would produce an unfortunate imbalance in the working of the Bill and would move away from what we are seeking to achieve.

Baroness Turner of Camden: I thank the Minister for that response and also for the comment made by my noble and learned friend. It is not my intention to press the amendment, I wanted to give voice to my concern that where an employer has been particularly obstreperous and has prevented the use of a procedure, there should be some penalty on him. Up to 10 weeks' pay seemed to me to be appropriate. But in view of what has been said about the desire for a degree of symmetry, if I may put it like that, in the way in which both sides are treated, I shall not press the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 13, as amended, agreed to.

Clauses 14 and 15 agreed to.

On Question, Whether Clause 16 shall stand part of the Bill?

Lord Blease: Clause 16 refers to Northern Ireland and I wish to make a brief point at this Committee stage for the record. As I understand it, if the Bill has parliamentary approval the clause provides that the principles of the Bill can be enacted in Northern Ireland. However, that will require an appropriate Order in Council procedure.

Perhaps I can say in support of the clause that from views expressed in Northern Ireland on employment rights, the Bill has warm approval. It has been welcomed by many experienced people, those directly involved with legal employment matters and those in general industrial relations practice and in industry. For many years there has been a close practical working relationship and exchange of relevant information between ACAS and the Northern Ireland Labour Relations Agency and with the Northern Ireland Department of Economic Development.

I wish to reinforce the point that the Bill has support in Northern Ireland. Mr. Gerry Loughran, speaking a few days ago at a conference on industrial relations, said:


    "The growing Northern Ireland economy has benefited enormously from the good industrial relations which it enjoys...The Government has a full and challenging economic and social agenda which will require the co-operation of employers, employees, businesses and trade unions working in partnership towards fair protection for people at work, hope for the long-term unemployed while at the same time maintaining and improving business competitiveness".
I understand that the support for the Bill in Northern Ireland reinforces the objectives required. I support Clause 16.

Lord Archer of Sandwell: Perhaps I may express my gratitude to my noble friend for what he has just

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said. For many years I was personally closely associated with industrial relations in Northern Ireland and some of those to whom he referred were close friends of mine. I am grateful for their approval and for what he said.

Clause 16 agreed to.

Clause 17 [Commencement]:

Lord Archer of Sandwell moved Amendment No. 34:


Page 12, line 12, after ("18") insert ("and paragraph 16A of Schedule 1").

The noble and learned Lord said: It may be for the convenience of the Committee if, with Amendment No. 34, we discuss Amendments Nos. 35, 41 and 48. The point is a brief one.

Part of the jurisdiction of the industrial tribunal is to hear breach of contract cases. That was a jurisdiction conferred by Section 3 of the Industrial Tribunals Act 1996. Unhappily, it did not make provision for appeals to the Employment Appeals Tribunal. The amendment simply intends to clarify the position by making it plain that the industrial appeals tribunal has jurisdiction to hear appeals in these cases. I beg to move.

Lord Haskel: Let me say briefly that the Government support the amendments of my noble friend because they are necessary to clarify an oversight in the existing legislation.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 35:


Page 12, line 16, at end insert--
("( ) The amendment made by paragraph 16A of Schedule 1 shall be deemed always to have had effect.").

On Question, amendment agreed to.

Clause 17, as amended, as agreed to.

Clause 18 agreed to.

Schedule 1 [Minor and consequential amendments]:

Lord Archer of Sandwell moved Amendment No. 36:


Page 13, leave out lines 13 to 21 and insert--
("2. For section 77(4B) and (4C) of the Sex Discrimination Act 1975 substitute--
"(4B) A person is a relevant independent adviser for the purposes of subsection (4A)(c)--
(a) if he is a qualified lawyer,
(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,
(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or
(d) if he is a person of a description specified in an order made by the Secretary of State.
(4C) But a person is not a relevant independent adviser for the purposes of subsection (4A)(c) in relation to the complainant--
(a) if he is, is employed by or is acting in the matter for the other party or for a person who is connected with the other party,

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(b) in the case of a person within subsection (4B)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,
(c) in the case of a person within subsection (4B)(c), if the complainant makes a payment for the advice received from him, or
(d) in the case of a person of a description specified in an order under subsection (4B)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.
(4D) In subsection (4B)(a) "qualified lawyer" means--
(a) as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate, and
(b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.
(4E) In subsection (4B)(b) "independent trade union" has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992.
(4F) For the purposes of subsection (4C) any two persons are to be treated as connected--
(a) if one is a company of which the other (directly or indirectly) has control, or
(b) if both are companies of which a third person (directly or indirectly) has control."
The Race Relations Act 1976 (c.74)

3. For section 72(4B) and (4C) of the Race Relations Act 1976 substitute--
"(4B) A person is a relevant independent adviser for the purposes of subsection (4A)(c)--
(a) if he is a qualified lawyer,
(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,
(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or
(d) if he is a person of a description specified in an order made by the Secretary of State.
(4C) But a person is not a relevant independent adviser for the purposes of subsection (4A)(c) in relation to the complainant--
(a) if he is, is employed by or is acting in the matter for the other party or for a person who is connected with the other party,
(b) in the case of a person within subsection (4B)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,
(c) in the case of a person within subsection (4B)(c), if the complainant makes a payment for the advice received from him, or
(d) in the case of a person of a description specified in an order under subsection (4B)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.
(4D) In subsection (4B)(a) "qualified lawyer" means--
(a) as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate, and
(b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

21 Oct 1997 : Column 694


(4E) In subsection (4B)(b) "independent trade union" has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992.
(4F) For the purposes of subsection (4C) any two persons are to be treated as connected--
(a) if one is a company of which the other (directly or indirectly) has control, or
(b) if both are companies of which a third person (directly or indirectly) has control."").

The noble and learned Lord said: This amendment has already been discussed. I beg to move.

On Question, amendment agreed to.


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