Standing Committee E
Tuesday 9 March 1999
(Afternoon)
[Mr. Peter Atkinson in the Chair]
6 pm
Mr. John Bercow (Buckingham): On a point of order, Mr. Atkinson. I wonder whether you have had any indication from the hon. Member for Corby (Mr. Hope), who is sadly not in his place at present, that he intends to withdraw from the Committee in the light of reports at the weekend, notably in The Mail on Sunday, that a sex discrimination case may be brought against him at an industrial tribunal next month by his former secretary. I refer to the matter because it is most important to know whether, in the light of that incident, the hon. Gentleman judges it wise to withdraw from the Committee's proceedings.
The Chairman: Order. The hon. Gentleman has made his point. Membership of the Committee is a matter for the Committee of Selection. It is, of course, up to Members themselves to declare anything that they may think relevant to the Committee.
Mr. Bercow: Further to that point of order, Mr. Atkinson. I am most grateful to you for your guidance, because you are obviously an authority on such matters. I wish to establish whether it is in order to describe another Member of the House as a hitherto obscure piece of parliamentary plankton. I, being customarily polite in my dealings with other Members of the House, did not refer to the hon. Gentleman in those terms—but Black Dog in last Sunday's edition of The Mail on Sunday did.
The Chairman: It is a noval piece of parliamentary description, but it is not a point of order. Indeed, I do not think that calling someone plankton is unparliamentary.
Mr. Tim Boswell (Daventry): Further to that point of order, Mr Atkinson. While the Minister is gathering strength for the substantive debate, and following what my hon. Friend said, I am concerned that we do not add to a sex discrimination matter a possible size discrimination, because it may involve more than one member of the Committee.
The Chairman: If we could talk about the Employment Relations Bill, it would be good news all round.
Clause 15
Unfair dismissal of striking workers
Question proposed [this day], That the clause stand part of the Bill.
Question again proposed.
The Chairman: I remind the Committee that with this we are taking the following: Government new clauses—Unfair dismissal of striking workers.
Government new Schedule 1—Unfair Dismissal of Striking Workers—
`Trade Union and Labour Relations (Consolidation) Act 1992
1. The Trade Union and Labour Relations (Consolidation) Act 1992 shall be amended as follows.
2. In section 238 (dismissals in connection with industrial action) after subsection (2A) there shall be inserted—
``Participation in official industrial action.
238A.—(1) For the purposes of this section an employee takes protected industrial action if he commits an act which, or a series of acts each of which, he is induced to commit by an act which by virtue of section 219 is not actionable in tort.
(2) An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) as unfairly dismissed if—
(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action, and
(b) subsection (3), (4) or (5) applies to the dismissal.
(3) This subsection applies to a dismissal if it takes place within the period of eight weeks beginning with the day on which the employee started to take protected industrial action.
(4) This subsection applies to a dismissal if—
(a) it takes place after the end of that period, and
(b) the employee had stopped taking protected industrial action before the end of that period.
(5) This subsection applies to a dismissal if—
(a) it takes place after the end of that period,
(b) the employee had not stopped taking protected industrial action before the end of that period, and
(c) the employer had not taken such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates.
(6) In determining whether an employer has taken those steps regard shall be had, in particular, to—
(a) whether the employer or a union had complied with procedures established by any applicable collective or other agreement;
(b) whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action;
(c) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used;
(d) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute.
(7) In determining whether an employer has taken those steps no regard shall be had to the merits of the dispute.
(8) For the purposes of this section no account shall be taken of the repudiation of any act by a trade union as mentioned in section 21 in relation to anything which occurs before the end of the next working day (within the meaning of section 237) after the day on which the repudiation takes place.''
4.—(1) Section 239 (supplementary provisions relating to unfair dismissal) (shall be amended as follows.
(2) In subsection (1) for ``Sections 237 and 238'' there shall be substituted ``Sections 237 to 238A''.
(3) At the end of subsection (1) there shall be added ``; but section 108 and 109 of that Act (qualifying period and age limit) shall not apply in relation to section 238A of this Act.''
(4) In subsection (2) after ``section 238'' there shall be inserted ``or 238A''.
(5) At the end there shall be added—
``(4) In relation to a complaint under section 111 of the 1996 Act (unfair dismissal: complaint to employment tribunal) that a dismissal was unfair by virtue of section 238A of this Act—
(a) no order shall be made under section 113 of the 1996 Act (reinstatement or re-engagement) until after the conclusion of protected industrial action by any employee in relation to the relevant dispute,
(b) regulations under section 7 of the Employment Tribunals Act 1996 may make provision about the adjournment and renewal of applications (including provision requiring adjournment in specified circumstances), and
(c) regulations under section 9 of that Act may require a pre-hearing review to be carried out in specified circumstances.''
Employment Rights Act 1996
5.—(1) Section 105 of the Employment Rights Act 1996 (redundancy) shall be amended as follows.
(2) In subsection (1)(c) for ``subsections (2) to (7)'' there shall be substituted ``subsections (2) to (7A)''.
(3) After subsection (7) there shall be inserted—
``(7A) This subsection applies if—
(a) the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the reason mentioned in section 238A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (participation in official industrial action), and
(b) subsection (3), (4) or (5) of that section applies to the dismissal.'''.
And the following amendments thereto: (a), leave out paragraph 2.
(b), at the end of paragraph 2, after ``below'', insert
`or who is dismissed under common law in connection with an official industrial dispute.'.
(c), in paragraph 3, proposed new subsection 238A(3), leave out `eight' and insert `four'.
(d), in paragraph 3, at the end of proposed new subsection 238A(3), after ``action'', insert
`or, in the case of intermittent industrial action in connection with the same dispute, four weeks from the first day on which industrial action was taken in connection with that dispute.'.
(e), in paragraph 3, proposed new subsection 238A(5)(c), after `employer', insert
`, or employee or employees, or a union representing that employee or employees,'.
(f), in paragraph 3, proposed new subsection 238A(6), after the first ``employer'', insert
`, or an employee or employees, or a union representing that employee or employees,'.
(h), in paragraph 3, proposed new subsection 238A(7), after ``employer'', insert
`, or an employee or employees, or a union representing that employee or employees,'.
(k), in paragraph 3, proposed new subsection 238A(6)(a), after ``applicable'', insert `and legally binding'.
(g), in paragraph 3, proposed new subsection 238A(6)(b), after ``offered'', insert `in good faith'.
(i), in paragraph 3, proposed new subsection 238A(8), leave out `the next working day' and insert `three working days'.
(j), in paragraph 4(5), proposed new subsection 239(4)(a), after ``until'', insert `at least one week'.
The Minister of State, Department of Trade and Industry (Mr. Ian McCartney): I want to give a detailed response to the amendments and to the substantive points that have been made, many of which were in support of the points made by the hon. Member for Daventry (Mr. Boswell). I shall also respond to specific points raised by the hon. Member for Altrincham and Sale, West (Mr. Brady) and others.
The hon. Member for Daventry, in his customary fashion, engaged in a bit of knockabout. As he was speaking, I noted that he might find a new career in theatre—perhaps in writing scripts. First, he accused me of being a carnivore. I have watched ``Jurassic Park'' and I quite liked the young raptor. That description did not work, however, so the hon. Gentleman turned to Father Christmas and whether, in political terms, I was a good fairy or a bad fairy—or just a fairy. He then spoke about Red Robbo, the Greek gods and Spanish practices. ``Kavanagh QC'' was mentioned, and he offered to join forces with me in a new legal company called Sue, Grabbit and Runne. He then talked about U-turns.
When it came down to it, however, the hon. Gentleman had nothing new to say about the way forward or about the new era of employment relations in the United Kingdom. It was all a cover for the same tired stories—the Conservatives still prepared to support bad practice rather than good practice, resulting in an imbalance in the workplace between employer and employee, even giving employers who acted unfairly the benefit of the doubt if employees had been sacked and lost their occupations.
Most of the amendments tabled by the hon. Member for Daventry were concerned with probing the Government. Others went to the heart of the issue. There is nothing wrong with that, because Opposition Members are opposed to the new clause and the new schedule. The hon. Member for South Dorset (Mr. Bruce) referred to consolidation. It took the previous Government 13 years—from 1979 to 1992—to consolidate the employment legislation that they had introduced.
Ussing that time as an average, it may be 2010 before we return to Committee to consolidate Labour's measures. Whether the hon. Member for South Dorset will be retired by them or whether his present electorate will have grown tired of him, I am not sure. However, he made a pertinent point about Parliament finding the time to consolidate legislation, making it more user-friendly. I agree in principle with that concept.
My hon. Friend the Member for Staffordshire, Moorlands (Charlotte Atkins) talked eloquently, in her usual fashion, about conciliation and partnership and about ridding ourselves of macho-style management. In the 1980s, in particular, and the early 1990s, such management bedevilled employment relations in the United Kingdom. Thank goodness, throughout the country came a sea change in how management perceive themselves and the relationship with their work force. That is why good practice is spreading throughout the United Kingdom. It is not spreading quickly enough, but the Bill will assist that process. In developing minimum standards alongside best practice, we shall see a different style of management and response to workers at the end of this decade than we did at the end of the previous decade.
Amendments (a) and (b), tabled by the hon. Member for Daventry, deal with selective dismissal. Naturally, we shall be inviting the Committee to resist them, but that will be at a later stage. If it were not for the insertion of the proposed new subsection (2B) into the existing section 238 of the Trade Union and Labour Relations (Consolidation) Act 1992, the proposed new section 238A would not work because all the conditions in section 238 would apply to proposed new section 238A. In effect, the new entitlements contained in proposed new section 238A would apply only when employees had been selectively dismissed or selectively re-engaged. That is an attack on the heart of the concept of the new clause and the new schedule.
Employees would, therefore, be completely free to dismiss employees en bloc. There would be no automatic period for those workers when dismissal was unfair. For them, there would be no incentive for the employer to negotiate a settlement to a dispute. By tabling the amendments, the hon. Member for Daventry showed the true colours of the Conservative party. It would sit on its hands, permit mass sackings and say, ``Just sack 'em all, and the law won't touch you.'' That is an appalling concept.
Despite all the rhetoric about partnership and not having unfair dismissals, at the heart of the amendment is a complete defence for the employer. From the moment a worker takes part in an industrial dispute, he can be sacked with impunity as long as all the workers are sacked. That does not represent decent standards at work. It would encourage the worst possible behaviour by employers and would perpetrate an anomalous arrangement under which there were some rights when sackings were selective, but none where they were general.
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