Alan Johnson: If a written warning is appropriate, a written warning is appropriate. We are talking about the three steps in the procedure: whether one would need to convey one's decision, having looked at the case, and having had the interview with the employee; whether one would need to write to say either that everything was fine or that the case was to be taken forward; and whether, having had an appeal hearing, one would need to inform the employee—again in writing—of the outcome of that hearing. ACAS would say that that was best practice; so would I, and so would everyone in the Room.
However, do we want more than 900,000 micro-businesses to have to put everything in writing on every occasion? Including that in the Bill would be onerous. We recognise that the balance between written and oral communication is a matter of judgment. We have opted for an approach that limits burdens on business, especially on small businesses, and provides reasonable flexibility. Employers have broadly welcomed that approach.
I should like to take advantage of the invitation to return to something that we discussed earlier. Although it is not in the Bill, we intend to ensure in the regulations that dismissal and disciplinary procedures will be used unless 20 or more redundancies are occurring and the law on collective redundancies applies. That is in the law already, as the hon. Member for Runnymede and Weybridge well knows. We also intend that in cases where fewer redundancies arise and the matter has been dealt with as a collective issue between the employer and the union. I hope that that clarification helps and that the hon. Gentleman will withdraw the amendments. If he does not, I hope that the Committee will resist them.
Rob Marris: I have some sympathy with the amendments. There seems to be a contradiction in what the Minister is suggesting. Given the procedure as a whole, at some point an employer needs to put something in writing and at some point an employee needs to put something in writing. We are expecting employees and employers either to be literate and to feel capable of communicating in the English language or, to use the Minister's words, to know a man who is. If we are thinking in terms of preventing cases from going to employment tribunals, the results of disciplinary procedures, in particular, should be put in writing.
For many of my constituents, English is not their first language—it might be one of the Asian languages or British sign language or whatever. Sometimes, both as Member of Parliament and as a solicitor before that, I have seen people in high dudgeon about an action that some authority has taken against them, and they bring a sheaf of papers when they come to see me. When one goes through the papers, one finds that the action about which they are incensed has not actually taken place; they have misunderstood. However, because they have the papers, one can explain that the problem that they thought they had is either a different problem or one that does not exist.
I could envisage, although I would not favour it, a whole procedure with nothing in writing. However, when bits are required in writing from both sides, that presupposes some kind of literacy and access to pen and paper or whatever at some stage on each side. In chapter 2 of part 2 of schedule 2, it is envisaged that the modified grievance procedure will come into play when the employee has been dismissed. In step 2, the decision of the employer has to be put in writing because a meeting is less likely, since the employee is no longer at the work premises. Why have that? Why not say that the employer could telephone the employee? It seems to be a contradiction and calls into doubt the clarity of schedule 2. Returning to what the Minister said earlier about giving another three months' extension to complete procedures, almost nothing in the procedures refers to any time limit at all.
Mr. George Osborne: I am delighted to see the hon. Gentleman take a broad approach to the role of a Government Back Bencher in a Standing Committee. Does he agree that if the case reached an employment tribunal—the Minister is right to say that we want to prevent cases from reaching that stage—it would be difficult for the tribunal to establish whether the procedures under schedule 2 had been correctly followed if there was nothing in writing?
Rob Marris: I agree with the general proposition that an absence of anything in writing might make it more difficult for an employment tribunal to establish that procedures had been followed. It might also take much longer at an employment tribunal to establish what had happened and what provisions had been complied with. The Government rightly seek to tackle not only the rising number of employment tribunal applications, but the time that each takes and, therefore, the waiting list for access to that procedure. Justice delayed is justice denied and costs business more. Indeed, it can cost the applicants more, as there may be more preparation time, to echo an earlier debate.
More procedure in written form might lessen the chances of the issues reaching employment tribunals at all. Cases that went to employment tribunals would be easier to decide if matters were in writing, and would probably be less time consuming. The lack of time limits is a related point. I appreciate that the Minister wants a fairly straightforward procedure, does not want to add all 24 pages of the ACAS code and has tried to strip the provisions back to their basics. I suggest that he has stripped them back too far. They need to be a little longer. The words ''in writing'' need to be added in various places, as does something to do with time limits, so that employees are certain what they should do and by when.
Mr. Hammond: I am interested in what the hon. Gentleman says. I imagine that he is telling the Committee that he will support my next amendment, No. 77, which deals with time limits.
Mr. Ian Pearson (Dudley, South): I hope that my hon. Friend will not speak to it.
Rob Marris: As ever, I shall wait until we reach that debate and listen to it before I make up my mind.
Mr. Hammond: The debate has been interesting, and has genuinely surprised me. I did not table the amendment thinking that it would be highly controversial. I toyed for a moment with not bothering to table it, partly because there are so many points at which one would have to insert ''in writing'' that it would tedious to draft them all, and also on the assumption that the Minister would simply dismiss it and say that it was obvious that everything had to be in writing.
The Minister has made much of the idea that the amendment would impose yet another burden on small businesses, as they would have to find a piece of paper and a pen so as to write letters stating, ''Dear Mr. Bloggs, Having considered your case at our meeting last Thursday, I remain of the opinion that you are dismissed. Yours sincerely.'' The Minister seems to think that the amendment is adversarial, and that he can get to me by saying that it would impose a big burden on business. I do not agree.
The matter is one of principle, and is about rather more than placing a minor burden on one person or another. If a procedure is to be carried out, it should be seen to be carried out fairly, and everyone should be able to understand what has happened. If a degree of formality has been introduced through the original complaint from the employer having to be in writing, it seems outrageous, absurd and unthinkable that the process would not conclude in writing. Anything less is bound to lead to confusion and create the potential for genuine misunderstanding, clogging up the tribunal system with yet more cases.
It seems to me self evident that a process that begins in writing and involves communication between the parties must end with a written confirmation of the final decision. To have that communicated verbally at the end of the hearing is surely inadequate. Apart from anything else, it suggests to me a lack of consideration. I would expect the employer to confirm his position in writing following the appeal meeting, much as in the legal system a court hearing takes place and a judgment is delivered later.
I am not at all satisfied with what the Minister has said. It is a lay notion of a basic principle of justice that people should have the ultimate finding against them recorded in writing so that they can refer to it. The hon. Member for Wolverhampton, South-West made a good point about people whose first language is not English having a definitive document to which they can refer. If the decisions at each step of the process are conveyed in writing, there is no scope for misunderstanding, misinterpretation or the rewriting of history, which so often occurs when procedures are conducted orally.
There is no question in my mind that the procedure ought to be conducted in writing and that the additional burden that it will impose on someone who has already had to make a statement in writing at the beginning of the process is modest and worth bearing in the interest of ensuring that the process is fair and seen to be fair. The outcome must be incontrovertible, so that there is no scope for disputes to arise about what someone did or did not say during a process that was begun in writing but continued orally.
Therefore, I will urge my hon. Friends to support the amendment, which I will press to a Division. I urge Labour Members to consider carefully where they stand. The issue is not party political, it is simply a question of whether the Minister has struck the correct balance between convenience and justice. I would say that it is essential that the entire procedure be carried out in writing, in order to ensure that justice is done and seen to be done.
Norman Lamb: As a new Member, I had very little idea of what to expect when attending my first Standing Committee. I had assumed, in my naivety, that the Government would accept an amendment that clarified the Bill and was generally perceived to be a common-sense measure. That was, perhaps, a naivety too far.
The process starts admirably and, as the Minister said, with clarity. It is disappointing that there is every chance of it descending into chaos and confusion, because it ends with no one quite knowing what has been said in the workplace, or with different parties interpreting it differently. Remarks could have been made in a few rushed moments, perhaps to someone who does not completely understand English, or whatever language the employer is using. The amendments would provide clarity for both the employer and the employee, and I support them.
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