Employment Bill [HL]

First, I assure the noble Lord, Lord Henley, that we practise joined-up government. I ensure that different departments talk to each other on matters that I am concerned with. Amendment No. 3 repeals Section 34 of the Employment Act 2002. In addition, this amendment and the new clause inserted by Amendment No. 4 together retain an amended version of Section 30 of the Employment Act 2002, such that the procedures in any ACAS code of practice relating to the resolution of disputes shall be implied terms of all contracts of employment. I shall deal with these two issues in turn. I assure my noble friend Lord Wedderburn that, as I am sure he fully understands, the Bill does not provide for the repeal of Section 34 of the 2002 Act, for the following reason. Section 34 provides, first, for the introduction of a new Section 98A into the Employment Rights Act 1996. Repeal of Section 98A is specifically provided for in Clause 2 of the Bill; the other provisions related to Section 98A introduced by Section 34 will be repealed as an automatic consequence of that action. Section 34 also introduced other changes to the Employment Rights Act 1996 that we do not intend to repeal. These allow for an additional award of four weeks’ pay in the separate context of retirement dismissals, a provision which was introduced by the Employment Equality (Age) Regulations 2006. I presume that the proposers of the amendment do not intend to remove those unconnected measures. On the second proposal contained in these amendments and the retention of Section 30 of the 2002 Act in an amended form, the section provides for the 2004 statutory dispute procedures to be implied terms in all contracts of employment and has never been brought into force. It relates to procedures, in so far as it makes statutory procedures up to now implied conditions of all contracts. We see no reason to retain the section as amended, for the reasons that I have just given, and we are providing alternative measures to replace the statutory procedures: an ACAS code to be taken into account by tribunals, an enhanced helpline and more conciliation. Employees are properly protected by having good information and advice about their options for seeking redress if they have a grievance at work, including early conciliation from ACAS to resolve matters at that stage, if at all possible. However—and this is very important—they will have unfettered access to an employment tribunal if that proves necessary. That is what is provided in the package of measures that we propose. In addition, Section 3 of the Employment Rights Act 1996 was amended by the 2002 Act to require employers to provide details of their discipline and grievance procedures in the written statement of employment particulars. The failure to provide such a statement may give rise to a freestanding tribunal claim, though with no compensatory award, but it may also lead a tribunal to increase an award made under other jurisdictions. The consultation document on draft statutory dispute procedures in 2003 pointed out that the main effect of the provision would be to allow one party to make a breach of contract claim against another in the civil courts—or, in some circumstances, the employment tribunals—if the other party failed to follow the procedures. That would be the case even if the failure could not in itself give rise to a valid claim to a tribunal. The Government proposed not to commence this provision until there had been a chance to see how the procedures would bed down. In responses to the consultation, 62 per cent agreed with deferring commencement and only 6 per cent thought that the section should never be commenced. The Government concluded that they should defer commencement until they had reviewed the impact of the procedures. In the event, we are now repealing the procedures and replacing them with a lighter-touch approach to resolving disputes in the workplace. In that context, the Government believe that there is even less reason to provide for freestanding claims against employers when there is no substantive grievance. Proponents of the commencement of Section 30 in the 2003 consultation argued that it would increase the protection of employees, and draw their attention to the procedures of which they might otherwise be unaware. Our current package of proposals includes an enhanced ACAS advice service and helpline, all of which is designed to make employees aware of their rights and possible courses of action in the event of a disciplinary matter or grievance. That type of measure, not the encouragement of legal proceedings, is the sensible and proportionate way to ensure that employees are properly protected and aware of their rights. My noble friend Lady Turner was kind enough to say that in my previous two lives—one as a lawyer and one in business—I understood the practical implication of the subject of this afternoon’s proceedings. Not to encourage legal proceedings might have upset me in my first calling, but in my second I would have thoroughly enjoyed it. It is in line with the whole thrust of our policy following the Gibbons review, which is to encourage early and informal resolution of disputes. I hope that this clarifies our reasons for not repealing Section 34, and why we do not believe it would be appropriate to retain Section 30 in a modified form.