My Lords, Amendments 20MA and 20MB are intended to probe the definition of aggravating features—I fear that this will be an aggravating speech in that respect—and to highlight what is perhaps the key to all of this, which is the proper training of managers in grievance and disciplinary procedure, and even in training, I think. I say that genuinely, because it is a subject that I have brought up time and again in these debates. If the Government could only focus more on that than on the firing of employees, they would do industry a much bigger favour.
Amendments 20MA and 20MB would include in the definition of aggravating features consideration of whether an employer has established any grievance or
disciplinary procedure and has provided adequate training to its managers in following those procedures. Underlying much of the Government’s changes to employment rights in the Bill and elsewhere is the idea promoted by Adrian Beecroft, among others, that the most urgent problem facing employers is not being able to get rid of underperforming workers and that by stripping away employment rights, we will have a more productive workforce, creating more jobs.
I could not help noticing the reaction of a medium-sized employer in the north, a removals company, to the Chancellor’s Autumn Budget Statement. It welcomed the fact that there would not be an increase in fuel duty because that would enable it to take on more employees, some of whom would be on zero-hours contracts. I did not hear the caveat, “We would have taken them on, but we will not be able to fire them in future, so we won’t”. That shows me what is really focusing employers’ minds in whether they hire more employees. After all, we are told that that is the Government’s driving motive behind the Bill.
We believe that stripping away employment rights is fundamentally misconceived and stems from a real lack of understanding of how the law works in practice. Contrary to what the Government claim, it is not difficult to dismiss an employee, but the employer must follow the proper disciplinary procedure. Time and again you will hear that that has not happened. Employers have inadequate or, in some cases, no disciplinary procedures in place. It is then that they are rightly challenged by the employee.
Including it as a consideration in whether to levy an additional financial penalty would send a strong signal to employers that it is unacceptable not to make adequate provision for a formal disciplinary or grievance procedure and for the training of their managers. As well as incentivising proper training and procedure, which would, we hope, lead to fewer claims being brought in the first place, the listing of possible considerations under the definition of aggravating features in the amendments would also provide greater clarity about what actions by an employer might result in a financial penalty under Clause 14.
The Explanatory Notes state:
“Section 12A does not prescribe the features which employment tribunals should take into consideration when determining whether a breach had aggravating features; this is for the employment tribunal to decide”;
and that, furthermore:
“The concept of aggravating features in section 12A is not the same as the existing regime of aggravated damages in discrimination claims in England and Wales”.
To my knowledge, the Government have not set out anywhere a list of features which might be deemed aggravating by the tribunal. We urge the Government to provide further clarity on that issue. I beg to move.