Employment Bill [HL]

My Lords, here we go again. Since what I consider to have been that dreadful day in May 1997 when my party moved from that side of the Chamber to this side, there have been no fewer than 28 Employment Acts, which is why I say, ““Here we go again””. That is getting on for three a year, and the figure ignores those Acts not directly involved with hiring and firing, regulations and so on. Now, as the noble Lord, Lord Razzall, said, we are dealing with No. 29. Its purpose is to apply another sticking plaster to a hotchpotch of legislation, with some Acts rectifying areas found in their earlier, ill considered predecessors. Before I deal with the Bill itself, I should like to tell the noble Lord, Lord Jones of Birmingham, that I am delighted to see him back in his place. After what was not exactly a fracas but a slight intervention when he mentioned that he would not necessarily be here for all the parts of the Bill as he would be travelling abroad selling trade for this country, and it was pointed out to him that his first duty is here in the House, I thought that, unusually, he had probably decided that enough is enough and that he would not come back for the rest of the debate this afternoon. That would have prevented me from thanking him for his courtesy in sending me a briefing note on the Bill to supplement the Explanatory Notes published by his department. It would also have prevented my asking him two questions that I am now going to put to him. I hasten to assure him, just so that he does not run out again, that I will not tax him with the vigorous statements that he made on the subject while he was chairman of the CBI, nor will I ask him how easy he finds the role of poacher turned gamekeeper. I would not dream of doing that to such a charming Minister. In fact, that role should enable him to answer my two questions easily. First, when are the Government going to find time in the middle of the torrent of legislation that they constantly spew out to publish a consolidating Act to put all 29 Acts in one place? The noble Lord, Lord Razzall, asked the same question and I noticed that the noble Lord, Lord Jones of Birmingham, nodded his head as though he agreed. I hope that that means something will happen and that we will not have to refer back to all of them when we want to sort out what is going on. There are 29 Acts in which some provisions have been amended or, as I said, repealed altogether. This is a totally confusing trap for the unwary employer and employee alike, who cannot afford to retain a high-priced specialist lawyer or have a personnel department—or, as it is nowadays pretentiously called, a human resources department—or have the backing of a powerful trade union or an employers’ organisation to help. Secondly, when will the Government finally get the message, which I have repeated time after time in your Lordships’ House, that in employment law one size emphatically does not fit all? What is appropriate for a major industrial company or other large employer is not suitable for the owner of the local corner shop or for any of the thousands of other small businesses to which the Government and the CBI constantly pay lip service as what is often called the ““engine of the economy””. Small businesses have to cope with 14 new regulations every week, imposed by a Government led by a man who promised to make a bonfire of regulations but who has so far failed even to make a start on it. Obviously that pledge has gone the same way as so many of the Government’s other manifesto pledges. I look forward with considerable interest to any reply that the Minister cares to give to these two questions. When I thanked the Minister for sending his note, I noticed that at the bottom of it he said that he would be delighted to answer any further questions, so I thought that I would start right away. Turning to the Bill, I have only two comments, one of which directly relates to my point about one size not fitting all types of employer. I welcome the fact that the Government are now proposing to replace the arcane and convoluted process through which employers and employees alike have to go in the unfortunate event of a dispute, a procedure that lays traps for the unwary and in which one side or another can be deprived of justice, not because of a lack of merit in their case but because of a failure strictly to comply with some rigid, pettifogging piece of procedure. The existing complex procedure could have been drafted anywhere, even in a non-democratic country. I draw your Lordships’ attention to two recent cases, one decided in favour of the employee and the other in favour of the employer. In Kennedy Scott v Francis, the employment tribunal, in the words of the report, "““bent over backwards to avoid a legalistic approach””." It accepted that an employee who had attended a grievance meeting where his employer had taken notes was not to be non-suited because he had relied on the employer’s notes rather than submitting his own complaint in writing later. In Homeserve v Dixon, the appeals tribunal took, "““a very pragmatic and wide view””," of the rules and held that an employee simply needs to be told that he is at risk of dismissal and why before a disciplinary hearing can take place. Hard cases make bad law. Why should employers and employees have to rely on tribunals bending over backwards or taking a pragmatic and wide view before a case can be dealt with on its merits and not on the basis of strict compliance with procedural rules? Why should there be a risk of inconsistent decisions between one tribunal and another when rules are rigidly applied or got around, depending entirely on the attitude of the chairman? As your Lordships well know, I am not the sort of person who goes around saying, ““I told you so””, but I did complain about the complexities of the procedure that is now to be amended, as my noble friend Lord Hunt mentioned in his excellent speech, when it was being enacted. I would have hoped that the provisions of Clauses 1 to 6 would put an end to the strict formality in resolving disputes and that common sense would be allowed to prevail. However, I am afraid that the pendulum has been swung too far back by the very well meaning provisions of Clause 2. It repeals Section 98A of the Employment Rights Act 1996, which, very properly, allowed tribunals to find a dismissal to be fair even though the employer had breached some other non-statutory procedure where that breach did not in any way affect the outcome. As a result of the new Clause 2, a tribunal will again be required to find a dismissal unfair where the employer has not precisely followed the correct procedure, even though the dismissal was otherwise completely reasonable. In the decision of your Lordships’ House in 1988, it was ruled that all the tribunal could do in such a case was to consider reducing the compensatory award if it believed that the dismissal was inevitable. In this very well meaning amendment, the Government have thrown out the baby with the bath water. I ask the Minister to consider amending the terse words of Clause 2 by importing some provision allowing a tribunal wholly to ignore what it finds to be an inconsequential breach of procedure by the employer. I do not expect the Minister to give such a pledge today but ask him for a promise that he will look into this aspect further and that before the next stage of the Bill he will have discussed the matter with employers’ associations and offered some suitable adjustment. That would be extremely helpful. Secondly, I give a cautious—indeed a very nervous—welcome to Clause 17, which in effect allows a trade union to exclude from membership someone who belongs to a political party or organisation to which the union objects. The caution in my welcome to Clause 17 is to trust that it will simply not be the thin edge of some witch-hunting wedge. I have no problem about excluding members of the BNP, with the focus of the case before the European Court of Human Rights. I have no problem about the exclusion of members of undemocratic organisations or parties whose aims are inimical to accepted public norms—say, for example, a terrorist organisation. However, where is the line to be drawn and who is to draw it? Could, for example, a union involved with workers in the nuclear or coal-mining industry exclude a member of the Green Party? Could the National Union of Mineworkers have excluded members of the Conservative Party in the 1980s? The Bar Council Law Reform Committee says that the provision goes significantly beyond the European Court of Human Rights judgment in the ASLEF case and lends itself to potential abuse by trade unions. This is a classic example of gold-plating, to which the United Kingdom subjects the rulings emanating from European organisations many, many times. My noble friend Lord Hunt mentioned that as well. The Department for Business, Enterprise and Regulatory Reform is not living up to its high-sounding name when it indulges in this kind of practice. I have just looked at the time and see that I have spoken for 11 minutes. There is no time limit, so I could go on—