Employment Bill [HL]

I am very grateful to everyone who spoke—with one exception—in support of the amendment. On the amendment’s substance, of course it covers a case where the worker ought to have known. The court would either interpret participation to cover such a case, and/or the court would take it into account in deciding whether it was equitable to grant a remedy. What else is important in deciding whether it is equitable to give a claimant a remedy other than whether he ought to have known about things that the employer was doing? I do not think that that is a substantial issue as the amendment stands. It could easily be amended if need be, but I am not sure that it needs to be amended. My noble friend Lady Turner pointed out how important this principle is for immigrant workers. They do not know, and it can hardly be said that they have the obligation to know, what an employer is doing or if he is offending some legal obligation, whatever it may be, from social security to tax law. The Minister said that this would raise all sorts of difficulties in tax law, which would take a very long time to consider. I would have been more impressed if I had been given an example, particularly as this amendment has been on the Marshalled List for quite a long time. I do not want to get into an argument with the Minister. Of course, I expected him to say that the Government would meet with us, but I thought he would say that they would consider it at this stage. I would have been more impressed with his decision that the proposed new clause cannot come into this Bill if he had taken one of the four cases, which his advisers must know perfectly well show the direction of the majority of judgments today, and said that everything was all right on the basis of that. But he did not give us an example of a decision at all. He just said that we could leave the law where it is and that that would be all right. As a footnote to that, it is no good saying that we will protect these workers in an employment Bill in the future. Although this Government have taken with alacrity to promoting employment Bills, they are often rare and hard to find. There are people in our society who will be disadvantaged, to put it mildly, in cases where their contracts are adjudged to be illegal, to which the principle of a refusal of the claim attaches. I have said that the judges have moved very sensibly, and I gave the four recent cases where there is movement. But Members of the Committee have said quite rightly that the law is not absolutely clear. I do not agree that it is in a total mess. It has moved in the right direction. I gave the four examples, including that of the Appellate Committee of the Law Lords, to show that, in my humble opinion, the law has been improved. But it is not absolutely clear and it could be made clear by this amendment. I am of course delighted that the Minister wishes to meet with me or my colleagues or anyone else, but the disappointment lies in the fact that he says that this cannot be done in this Bill. Why on earth not? With great respect, I think that he gave no reasons for that that can stand up to examination. He spoke with some doubt of the ““practical benefit”” which might be given. My noble friends who have spoken on this amendment have given plenty of examples of workers whose benefit would be improved in standing, as would their relationship with fundamental employment protection rights. I have no alternative but to beg leave to withdraw the amendment, but in doing so I beg the Minister to meet or to have contact with us with a view to putting it in the Government’s submissions to the House on Report. I ask him to look at this with his advisers and to find better reasons, if he must, for refusing to do something now. It is always easy to say, ““This is a good idea but the time is not ripe””. The principle of unripe time was written about by Professor Cornford of Cambridge University when he pointed out that time, like the medlar, has a habit of going rotten before it has ripened. This issue is falling into that trap. I suspect that behind the refusal to do anything in this Bill is the notion that it will offend in some way the flexibility of the labour market, which has been a government mantra for years now. It does not affect or deprive the labour market of flexibility, it deprives employers of the ability to hide behind the shield of the doctrine of illegality, which is still a danger in our courts in that it can lead to inequitable decisions against workers who are improperly treated, especially those whose ability to understand what is going on is quite obviously rather low. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.