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Lord Phillips of Sudbury: My Lords, I am grateful for the Minister's explanation of his unwillingness to accept my amendment. I have to say that his final comment does not deal with my point. In seeking to judge the second limb of the judgment--the first is the reasonable dismissal and the second is whether the worker is suitable to work with old people--I do not know of any employer on earth who would seek to make that judgment without seeing the person in respect of whom the judgment is to be made. I should have thought that that, of itself, would work in favour of this amendment.
However, I have to accept what the Government have said. I believe that the argument about the delay is a canard; indeed, it is up to the complainee to decide whether or not he wants to risk delay by going to see the civil servant exercising such huge powers. As regards employment law protection, I have made it clear again and again that the workers who are at most risk under this procedure of victimisation by employers are those who have not yet reached the stage of being protected by the employment law because they will not have served a full year in employment. I am most disappointed.
Lord Hunt of Kings Heath: My Lords, will the noble Lord accept that the remaining provisions in the Bill will ensure, through registration by the national care standards commission, that employers do have proper provision in place to deal with such issues?
Lord Phillips of Sudbury: Yes and no, my Lords. Even under the most fulsome codes of arrangement in, for example, dismissal, the noble Lord will find that gross cases of employee failure or breach permit the employer to sack the employee instantly. There will be cases where that will happen within the code that the Minister has said will be laid down by the Government in guidelines and, therefore, the people about whom we are concerned will not be protected. Moreover--and I return to the issue--if someone has served under one year in employment, his protections will be sketchy in any event.
Lord Hunt of Kings Heath: My Lords, the whole basis of the Bill is the effective regulation of the establishments about which we are talking. Through the national care standards commission we can ensure that the proper procedures are in place to deal with such issues. This will not be guidance; it will be effective regulation of the care sector. The very reason for having this Bill is to deal with the sort of homes that the noble Lord has mentioned. We must see this as a package of measures.
We are proposing easements to this scheme. First of all, we have an amendment to allow the tribunal to grant leave to an individual to be able to seek a review not just once after the first 10 years, but to be able to apply for review at subsequent 10-yearly intervals. I believe that that reflects our discussions on the then Protection of Children Bill as it progressed through the House. I am glad that we have been able to make that change.
In our discussions on the Protection of Children Bill, the noble Earl, Lord Howe, raised the issue of young workers who might be affected for life by being placed on the list. We certainly think that in those cases the option of a review after 10 years could be too harsh on a worker who was aged under 18 at the time of listing. These young workers would have been juveniles at the time of their listing. We are therefore bringing forward amendments to provide for such young workers to be able to apply to have their names removed from the list after a period of only five
There are two other amendments in this area. The first requires the listed person to prove that he is suitable to work with vulnerable adults before his name is removed. At first sight this might appear to be lessening the rights of the listed person. However, we think it right in these instances that the individual should take on the burden of proving that he is now suitable to work with vulnerable adults. He will be at an advantage over anyone else seeking evidence about his life since he was listed.
The other amendment allows the tribunal to remove a person from the list only where his circumstances have changed in such a way that it is proper that his name should be removed from the list. With these amendments we think that we have achieved a proper balance between the protection of the public and the rights of the worker when it comes to considering removing workers' names from the list.
We are also making amendments to Schedule 3. Amendment No. 203 allows the tribunal to obtain the evidence it needs for the purposes of a review. Amendment No. 204 requires the Secretary of State to consult the National Assembly for Wales before he makes regulations on related matters which will affect Wales.
In the protection of vulnerable adults scheme we are seeking to identify individuals who harm vulnerable adults and ban these individuals from the workforce. Since the Bill was last in your Lordships' House, we have further considered the definition of "harm". We are now putting forward Amendment No. 149 to provide for an extended definition of "harm" that takes into account the particular needs of adults who are mentally impaired. Amendment No. 150 provides a definition of what we mean in this Bill by an adult who is mentally impaired. I beg to move.