|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Admittedly, subsection (8) refers to a "reasonable" place--again, we have the word "reasonable"--but that is not defined. It will be a brave employer who decides that his solicitor's or accountant's office in the next town or across the other side of London is the most "reasonable" place for that.
Admittedly, subsection (7) refers to a "reasonable ... time". However, would, say, 9 p.m. or some time on a Sunday afternoon be accepted by a court as "reasonable" even if that is the time that is least disruptive and least embarrassing to the employer, particularly in the case of a shop which may be full of customers at any other time?
Then, there is all the complicated palaver in this clause about the employee being accompanied by a person of his choice. Who, might I ask, is the "worker's friend" to be? It was suggested in the other place that it might be none other than his Member of Parliament--nothing is impossible, I suppose--or someone from the local citizen's advice bureau. Equally, it could be a large chap with a broken nose and a Rottweiler on a chain whose purpose is to intimidate the employer. I do not believe that this is a laughing matter. There might be a series of visits by one employee after another, without any real cause for complaint as it transpires, whose intent is to disrupt the employer. That may be termed a new form of work to rule. It may even be a local trade union official with a separate agenda who conducts a fishing expedition or a recruiting drive. It could even be a competitor, which would be a very serious matter for any business.
The very nature of the employer's records, whether kept on a computer or on paper, means that the person who inspects them is likely to see irrelevant confidential information relating to other employees. The essential point is that, unlike the inspection of documents carried out pursuant to a court order in civil proceedings, there is no sanction against improper disclosure of information. There are already situations in which under the Data Protection Act a person can demand to see records pertaining to himself held by a third party. I am entitled to obtain copies of information held about me in almost any computer in the country. One is talking about copies on paper sent by mail or messenger. I am not entitled to barge into my bank, building society or the offices of a credit agency brandishing a do-it-yourself search warrant and accompanied by a personal minder.
I am entitled to be supplied with a record, in writing, of my treatment in a National Health Service hospital, not by personally inspecting the hospital's and doctor's notes. Under the Companies Acts I am entitled to demand an up-to-date list of shareholders, not merely the possibly obsolete one on file at Companies House in Cardiff. To obtain that information I do not even have to be a shareholder, but I cannot insist on personally accessing the company secretary's computer.
These are the correct precedents to be followed when considering a demand for copy records to be supplied in writing within a reasonable time and at no cost to the employee. This amendment gives the employee access to all the information to which he is justifiably entitled without all the cumbersome, bureaucratic and inappropriate procedures that this Bill proposes.
I started moving this amendment by referring to a constitutional issue. With the exception of the cases authorised by Parliament to which I referred earlier, no one should be entitled to demand access to someone
Because of the considerable constitutional importance of this clause I apologise for having taken up so much of the Committee's time in explaining the background to the amendment that I move. As briefly as possible I should now like to explain each amendment in detail. One needs to look line by line at the more objectionable and draconian provisions of this clause. I shall speak to them in the order in which they appear on the list. The proposed new subsection in Amendment No. 69 rectifies a number of deficiencies in the present provision. The present clause does not specify the form that the employee's requirement should take. Can it be simply oral, face-to-face or even by telephone? To require it to be in writing places it beyond argument that the demand has actually been made. I believe that 28 days rather than 14 days is a reasonable time for a notice by an employee, bearing in mind that an employer may have his records maintained by accountants or a PAYE agency or those records may be in the middle of an annual audit. What happens if the employee makes his demand on Christmas Eve, when the entire country appears to have developed the habit of closing down for two weeks?
I would not dream of diminishing the complaint of a worker who believed that he had been underpaid. However, there is not the degree of urgency that the subsection implies. Therefore, I believe that 28 days instead of 14 days would not make any practical difference. Most important of all, the method by which the employer provides the records should be in writing, not by production on the employer's premises or some other place nominated by the employer under subsection (7). I am sure that noble Lords opposite will be pleased to hear that I do not intend to repeat the arguments that I have already advanced in relation to that point. It is sufficient to say that, as a matter of principle, an employee, or one employee after another, or possibly an employee who has been dismissed for good cause, should not have the right to come back on to the employer's premises perhaps in a disruptive or confrontational manner.
As to Amendment No. 70, there can be no possible objection to an employee being required to place on record the date on which he makes his request so as to place beyond argument the time from which the time limits prescribed by the Bill begin to run. Nor can there be any objection to an employee specifying the period in which he is interested. There is nothing to prevent the employee specifying the period to be from the commencement of his employment to the present date. Equally, there is no reason why the employee should be required to guess the period which is the subject of the dispute. After all, even a real search warrant issued by a magistrate must inform the recipient specifically as to what the searchers are looking for. This amendment proposes the removal of the right of the employee to demand to come on to the employer's premises or some other place, possibly accompanied by a total stranger whose part in the matter may well be dubious or at least
Amendment No. 71 seeks to delete subsection (5). That provision gives the employee the unprecedented right to issue what amounts to a home-made search warrant. If the method of providing the records to which the employee is entitled is in writing, by photocopies, and so on, all the paraphernalia of so-called production notices and the procedural regulations in subsections (6) to (8) is entirely superfluous. The amendments that remove those subsections are Amendments Nos. 72, 73 and 74. Subsection (9) is also superfluous because the time limit for providing the written record is covered by the new subsection (1). That is removed by Amendment No. 75.
Amendment No. 77 substitutes a written request--that is, one demanding copies of the relevant records--in place of the objectionable search warrant which is euphemistically called a production notice. Amendment No. 78 introduces the word "directly" before "relevant" in referring to the records that an employee requires to see in order to establish the employee's pay. The word "directly" is simply to ensure that the employee and his advisers cannot go on a general fishing expedition. What is directly relevant are the hours worked by the employer and what he or she has been paid for them. What is not directly relevant, for example, is what the person working alongside the employee was paid for the same work.
This amendment is only a matter of emphasis. The employee must get the information that he needs to establish whether or not he has a claim. But what he should not demand is information that is not relevant to that objective. The amendment places a limit on the word "relevant" so that it is not widened to whatever remote piece of data someone can dream up. We do not want to see the harassment of employers by continual, ever-escalating and time-consuming demands for what in civil litigation are called further and better particulars.
Lord Clinton-Davis: Where does the noble Baroness imagine that the employee would be able to go on a fishing expedition to discover everything and anything that is not relevant? Does not the clause specifically subscribe to the point I have made? The information has to be relevant.
Back to Table of Contents
Lords Hansard Home Page