Grand Committee
Enterprise and Regulatory Reform Bill
The Deputy Chairman of Committees (Lord Geddes)
My Lords, as is usual on these occasions, I have to advise the Grand Committee that if there is a Division in the Chamber we will adjourn for 10 minutes. I am told that there is likely to be a Division so we may be adjourning quite soon.
Clause 14 : Power of employment tribunal to impose financial penalty on employers etc
Amendment 20L
“(1A) Subsection (1) does not apply where an insolvency office holder has been appointed to the employer company in any of the capacities specified in section 388(1)(a), (2)(a), (2A)(a) and (2A)(b) of the Insolvency Act 1986.”
Baroness Hayter of Kentish Town
My Lords, Clause 14 gives tribunals powers to impose a financial penalty on an employer who is in breach of their employment responsibilities where there have been aggravating features over and above any award. The intention is to provide a deterrent to employers from neglecting their responsibility towards employees and to discourage them from repeating the breach that has been identified by the tribunal. However, we wonder whether the impact of penalties against an insolvent company has been properly considered.
In most formal insolvencies the management of a company is no longer in place having been replaced by an insolvency officeholder, so any financial penalty would simply represent an additional claim on the assets of the already insolvent company. Needless to say, this would reduce the amount available for creditors, including the HMRC as well as employees. With a maximum penalty of £5,000 per worker, the impact could be significant where there is a large workforce. For example, in the recent insolvency of a retail company, tribunals made awards to 24,000 employees. Should penalties then be added to those awards, substantial amounts would be lost from the money available for distribution to staff or creditors.
Penalties on companies in formal insolvencies where the management is no longer in place would clearly have no deterrent effect as those responsible would no longer be around and not themselves liable for such penalties. Any penalty would therefore deliver no benefit to employees but would simply reduce returns to creditors. It is for this reason that Amendment 20L calls for an exemption from penalties for companies in formal insolvencies.
I am aware that R3 has been in contact with the Bill team on this and so I am sure that the Minister will be well briefed on the issue and on the intention behind the amendment. However, I hope he will not say that the amendment is not proportionate to the size of the issue. At a time of slow growth, which we all acknowledge is going to continue for some time, there will, sadly, be many insolvencies yet to come, and very often in the retail and other employee-rich sectors. I also hope that the Minister will not tell us that there is some magical alternative non-statutory solution, such as guidance to tribunal chairs or enforcement officers. That would be rather silly with a new Bill. It may often be sensible where something unplanned has happened after Royal Assent or when a new Act is bedding down and unforeseen problems occur, but here we could make the provision in the Bill right from its inception.
Furthermore, having this provision in the Bill would give clarity to insolvency practitioners and others dealing with insolvent estates and would remove the threat of such additional costs and all the extra time that is taken in arguing against them, which in itself adds even more to the costs of the insolvency procedure and has to be met out of funds that would otherwise go to creditors. We all know that once a power has been granted in legislation, any amount of non-statutory guidance often fails to prevent its exercise.
Even if enforcement officers are advised that the penalty should not be collected, that would not deal with the problem because the penalty will still exist as a claim against the estate. Also, an insolvency practitioner might have a legal duty to pay regardless of whether such payments are being pursued by the enforcement officer.
Perhaps the biggest disadvantage of relying on non-statutory means is the uncertainty that that creates. Whether or not financial penalties are actually awarded or collected in a formal insolvency does not change the fact that they could be under the Bill as it is currently worded. That uncertainty is particularly damaging in the case of a potential business rescue, where the insolvency practitioner has to be able to predict the liabilities and outgoings of a company that is in administration when deciding whether it is possible to trade it. Obviously, trading such administrations can increase the returns to creditors as well as reducing job losses. Therefore, the addition of potential liability could mean that fewer companies are saved from liquidation.
Our amendment, granting specific exemption for companies in formal insolvency—ie, where the management is no longer in place—would remove such uncertainty. It would not harm employees, who may still have an award made in their favour, and it would merely prevent the creditors of insolvent business having to pay a fine to the Secretary of State for a transgression for which they bore no responsibility.
It seems silly to send this Bill into the world unfit for purpose. The clause was meant to fine those who had transgressed and deter them from becoming repeat offenders, but an IP running an insolvent company is not the transgressor and any such fine would only be paid by blameless creditors.
To ensure that we can find a route to those who have transgressed, we have a second amendment in this group—Amendment 20PA. Because the present Clause 14 would fail to act as a deterrent to directors of companies in insolvency, as any penalty does not fall on them, there may be merit in meeting the Government’s quite correct desire to increase deterrence by introducing a different deterrent for these particular people via an amendment to the Company Directors Disqualification Act 1986. This would ensure that where a breach has occurred that has, or would have, attracted a financial penalty were the company not in formal insolvency this matter is taken into account when considering directors’ conduct.
In a formal insolvency, the insolvency practitioner, who is acting as the liquidator, administrator or administrative receiver, has a duty to report on any director whose conduct makes them unfit to be involved in the management of a company. The matters that IPs have to consider when deciding whether to make such a report are listed in Schedule 1 to the Company Directors Disqualification Act 1986. This amendment would add to that list the issues covered in Clause 14 of this Bill, so that the IP could still consider these matters when deciding whether to report on those whose behaviour has been found wanting but who would currently escape any penalty because they are no longer running the company. I beg to move.
Baroness Brinton
My Lords, I welcome Clause 14, which inserts new Section 12A, but would like to assert the importance of Amendment 20L. New Section 12A(1) allows an employment tribunal, having found that an employer has committed an aggravated breach of workers’ rights, to order penalty payments to the Secretary of State regardless of any previously established financial awards. While this is a just measure, we must not neglect the legal rights and needs of those who find themselves unemployed and faced with their former employer’s insolvency while still owed back pay, expenses or other reimbursements. Under subsection (1) as it stands, employees whose rights have been breached by their former employer would not necessarily receive compensation until after the Treasury, which as primary creditor would receive the penalty for the employer’s infringement before the employees got their redundancy pay. Thus the compensation of workers wronged by their former employers would be secondary to and potentially diminished or even eliminated by the amount paid to the Secretary of State when a company is insolvent and funding is finite. This would obviously be unfair to the former employees of an insolvent company who faced jarring transitions in their finances and everyday lives.
Amendment 20L would cancel subsection (1) where an insolvency officeholder had been appointed. This sensible measure would ensure that employees, as creditors, had primacy in receiving financial redress from an insolvent company. This is an important step to protect workers’ rights. When a company becomes insolvent, tens of thousands of people may become unemployed through no fault of their own, and these people are legally owed compensation, which could also provide much needed fiscal support. If we are genuinely to protect workers’ rights, we should support this Bill with Amendment 20L.
I also support the principles of Amendment 20PA, for the reasons that the noble Baroness, Lady Hayter of Kentish Town, has set out.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Marland)
Good afternoon, my Lords. I hope that your Lordships all had a good weekend break. I am very grateful to the noble Baroness, Lady Hayter, for putting forward this amendment. As she rightly said, R3 has been working closely with our officials to find a way forward in this important part of the legislation and to try to find a modus operandi—or modus vivendi, whichever one wants to call it—to create the right effect.
I am grateful to my noble friend Lady Brinton for saying that the principle is the right course, and I think we all agree on that. However, as I think most people would agree, the problem lies with the practicality of this. The practicality is that an employee goes to a tribunal suing for wrongful dismissal and the company goes bust. It therefore has no money to pay anybody—in theory, that is why it has gone bust—and there is no right of recourse. I think that my noble friend Lady Brinton was right when she said that we would want to ensure that that wronged employee was very high up the pecking order in attracting revenue from the residual of the company’s assets.
I assure my noble friend that employees have rights equal to those of other creditors. There was some mention that the Exchequer sat ahead of them. The Exchequer does not sit ahead of employees in rights, so it has rights equal of those of the employee. I fear that it is slightly like banging one’s head against a brick wall in that, if nothing is left over in the tin, no one is going to get anything—not the Exchequer, not the suppliers and not the good staff, who have not been paid. That is the problem with this issue. Of course, everything is prefaced by the fact that the tribunal judge knows what is going on and so uses his discretion. It is right that he is empowered to use his discretion in finding out the state of the company to see whether there is going to be money in the tin, quite rightly, to pay this wronged individual.
For the company, £5,000, which we agree is a reasonable figure, is not enough to impact on whether or not it goes into liquidation. It is a small amount in terms of that overall decision and so is not going to be the driver that stops the company trading. Although we are sympathetic to this issue, in our view it is almost impossible to be prescriptive about it, and therefore I do not see how this amendment would work.
Similarly, with Amendment 20PA, there is already a list of four prescriptions for determining the unfitness of directors. If we start adding to that list at this point, where do we stop? Out of a board of 15 directors, is there one director who has failed to behave properly, and should we therefore take action against all directors? Should we expand this prescription, which came into force in October 2009 under the previous Government and which we supported at the time? I just do not think that at this point it can be limited to one director, despite the fact that I see the direction of travel of the noble Baroness.
I also want to say again that the judge at the tribunal will take into account the misbehaviour of a director when making his award. That is his job. He will see the evidence, which will be presented to him openly and fairly, and he will take that into account in his award. I acknowledge the difficulty and problems that we have with this particular aspect, and acknowledge and thank those who have said that it is the right direction of travel, but with this provision we would make it too prescriptive for ourselves. We continue to talk to R3, and we will continue to talk to the noble Baronesses about this as we go into Report. On that basis, I hope that the noble Baroness feels that she can withdraw her amendment.
Baroness Brinton
I ask for some clarification. The Minister said that the tribunal judge will obviously have a discretion, and I absolutely accept that point. However, the amount could be considerably more than £5,000. New Section 12A(1) refers to each worker involved, and I referred in my speech to a large organisation going bust. Even at the minimum of £100, if thousands of people lose their job, the penalty will still be quite a large sum that could take precedence over redundancy pay.
Lord Marland
We will pick that up in another part of the Bill, on the award, where the penalty is 50% of the award per employee. We have tabled amendments on that point. We can debate the point then, if the noble Baroness is satisfied with that.
Baroness Hayter of Kentish Town
I thank the noble Baroness, Lady Brinton, for her support. I find it hard to thank the Minister because I do not think that he has really quite got the point. These companies are already in insolvency, so the question of whether to take into account whether they will continue to trade is not the point; the point there is whether they will be sold on.
What is the purpose of a penalty against the directors who are no longer running the company? I cannot see the point of that, and I do not think that the Minister answered the question. We are talking about penalties, not awards to employees. Although the Minister is correct that they will rate on holiday pay, redundancy and, I think, sick pay—I need help from an expert on that—if money is due into the pension scheme, that would not rate higher than a penalty due to the Secretary of State. There will be other employee interests that could be damaged by this.
I am slightly surprised that the Government feel any need to put a penalty against a company for a transgression when the people concerned are no longer there. We will bring this back in due course, but, for the moment, I beg leave to withdraw the amendment.
Lord Young of Norwood Green
Amendment 20M would remove the requirement that a financial penalty be set at 50% of the amount of any compensation awarded. We support the provision to levy an additional fine on employers where they have been found to have breached an employee’s rights and there are so-called aggravating features. We hope that this will act as a further deterrent to rogue employers. However, when considered in the context of the main thrust of the Government’s changes to the employment rights landscape, such as the increase in the unfair dismissal threshold to two years and the extension of new settlement agreements, all of which will make it easier for employers to get rid of workers without following proper process, I am not optimistic about the difference this will make. We have some questions over the practical detail of this provision—for instance, what will be considered an aggravating feature, and the impact that it might have on speed of payment of compensation? However, we will discuss those issues in later amendments.
This is a simple probing amendment to understand further the Government’s thinking behind setting the level of fine at 50% of any compensation awarded. We are not strictly opposed to this being the level set but it seems overly prescriptive in that, earlier in the clause, the Government have already set out the parameters for the amount that an employer may be fined under this proposed new section.
We understand that it is important that employers have certainty about the level of fine that they might face if a claim is upheld. However, we would have thought that setting the minimum and maximum levels of penalty at £100 and £5,000 was a more than sufficient guide to employers about what they might face. What is more, if the Government are still anxious about clarity we would have thought that their first priority would be to produce guidance on what will be considered an aggravating feature. I beg to move.
Lord Marland
My Lords, this is an amendment that my noble friend Lady Brinton was also alluding to. It is a very reasonable probing amendment. What we are building on here is the Labour Government’s legislation, which we supported. I am grateful that the noble Lord, Lord Young, has indicated that he is broadly supportive of the direction of travel. We are trying to have here an award of 50% of value rather than an arbitrary figure of between £100 and £5,000—£100 being the floor and £5,000 being the ceiling. There is therefore a consistency of approach, as you would get an award of 50%.
I would like to move on to the question that I said I would answer from my noble friend Lady Brinton. In the case of multiple cases against the same employer, this clause provides for the tribunal to impose a penalty of varying amounts up to a maximum of 50% for each employee, unlike single claims where the penalty must be 50% of the value of the award. I notice that my noble friend is nodding so it is not as clear as mud but absolutely crystal clear to her, which is of great benefit to me because she has greater experience of this than I. It is perfectly reasonable and fair that we should have a 50% award and that we do not have arbitrary figures. I know that the noble Lord, Lord Young, believes that that is fair. On that basis, having clarified our position, I hope that the noble Lord is able to withdraw his amendment.
Lord Young of Norwood Green
I asked what would be considered an aggravating feature and about the impact it might have on the speed of payment of compensation, but the Minister did not return to the point.
Lord Marland
That is a perfectly reasonable question, and I know that the noble Lord is asking me a question to which he knows the answer—as he often does, because he knows a lot about these things. We cannot be prescriptive about aggravating speeches—sorry, I meant aggravating features. We do not intend to supply that but we have a list of examples which is in the Explanatory Memorandum. I feel sure that things such as deliberate or malicious acts, et cetera, would satisfy the question to which the noble Lord knew the answer before he asked me.
Lord Young of Norwood Green
Such cynicism so early in the day. All I can say is that we will take into account the Minister’s response. I am not saying that we are fully satisfied with it—we may return to the issue on Report—but, for the moment, I beg leave to withdraw.
““aggravating features” includes a failure or failures by an employer to follow its own grievance or disciplinary procedures (or both), or, where an employer does not have its own grievance or disciplinary procedures, the ACAS code of practice on disciplinary and grievance procedures; or a failure by an employer to provide any adequate training to its managers in grievance and disciplinary procedures;”
Lord Young of Norwood Green
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.
Baroness Turner of Camden
My Lords, I hope that the Government will see fit to accept the amendment, because I should have thought that it was in their interests. One of the aspects that comes out from discussion of the Bill is that the Government are anxious to stop people going to tribunals. Of course, if you have managers properly trained and a series of agreed procedures, it is far more likely that issues will be settled in-house, so to speak, rather than having to go to a tribunal in the first place. Therefore, it seems very much in the interests of the Government to accept this wording, which talks about the aggravating circumstances but also, I hope, will act as an incentive to employers to make sure that their managers are trained. If you have a trained management, you are much less likely to have an issue that needs to be taken to a tribunal. As we know from our previous discussions, the Government are endeavouring to limit the number of issues that get to a tribunal. I should have thought that acceptance of the amendment was in line with that policy.
Lord Marland
First, I would like to make a couple of points on training, which is of great interest to the noble Lord, Lord Young of Norwood Green. We all agree that training is absolutely fundamental and his knowledge, expertise and commitment to it are very high. This Government have spent a huge amount of money on training, on mentoring and on various other things. We must be getting something right because a million new jobs have been taken on board in the past two years in the private sector. We do not have a load of people running away from employment. It demonstrates clearly that, with unemployment going down and employment in the private sector going up, the policies that we have created to foster employment are working and seem to be working satisfactorily. I do not think that this is a block to training or ongoing employment. The noble Lord would have been right to point it out had this Government not been keen that we should do it.
Let us be fair. All of us are keen that employers should meet their obligations to their employees. That is what we are all here for. None of us is here saying that we want to withdraw this and that. We are arguing around the margins. Throughout this, as I have also argued, ultimately it is up to the tribunal. As we have said, and as the noble Baroness, Lady Turner, has rightly said, a tribunal is the last place where we want things to go to. We want them to have gone to ACAS beforehand, as we have previously agreed, and we want the employer and the employee to have sorted it out by themselves. I am compelled by the point made by the noble Baroness.
Ultimately it is the tribunal that will be making the decision if it gets to that point. We hope that it does not. It will ultimately determine whether there are aggravating features and we cannot be too prescriptive about aggravating features. Paragraphs 86 and 87 on page 18 make it clear how we see this. With that, I rest my case, other than to say that these tribunals have it in their power to take these issues into account. They can uplift the award by 25% should they so wish and we would obviously urge them to do so because we all want to see the right and fair things for employees and employers. With that I hope the noble Lord will withdraw his amendment.
Lord Young of Norwood Green
The Minister has still not addressed our main concern. I do not deny that the Government are spending significant amounts of money on training and we welcome that. Our concern is the worrying statistic produced by the Chartered Institute of Management which says that only one in five managers have any training. That is a worrying statistic. The purpose behind the amendment was to give a clear signal to employers that if they persist in failing to train their managers or having proper procedures they will pay a price. While we beg leave to withdraw the amendment, we will consider returning to this on Report.
“(11) Any money paid by an employer purporting to meet a liability to pay a penalty under this section shall be treated instead as payment of any financial award on a claim against that employer to the extent that any such award has not been paid.”
Lord Young of Norwood Green
My Lords, Amendment 20N follows on from the previous amendment in that it also deals with unpaid compensation. This amendment would allow the tribunal, in making an award on a claim, also to specify a date by which that award should be paid, to be no later than a month following the decision. In addition, it would allow the Secretary of State to bring forward regulations to charge interest on any award that remained outstanding beyond the payment deadline specified by the tribunal.
On Report in another place, the Minister said in relation to unpaid awards that the Government are,
“consulting on two changes that I believe might have some effect on the number of awards paid promptly. They include proposals to put a date on a tribunal’s judgment specifying when payment should be made and to charge interest from the date of judgment where an award is unpaid after 14 days. These charges will apply to all cases, not just to unfair dismissal cases. Importantly, in that scenario the interest will be added to the award and paid to the claimant”.—[Official Report, Commons, 17/10/12; cols. 344-45.]
That consultation closed on 23 November. Therefore, I am very keen to hear from the Minister the Government’s findings in relation to this important issue and whether they will accept the opposition amendment that seeks to bring into effect a new power to ensure that compensation is paid to the individual. I beg to move.
Lord Marland
Of course we are in great harmony, even though I am sure I shall have it thrown back in my face. The consultation ended in November and we are about to publish the information. Incidentally, when we have established our response, I shall be very happy to have a private meeting with the Opposition—of course, there is no reason why it should be with just the Opposition; it should be with any noble Lords in this Room—to discuss the various aspects of this issue, and my officials will be at your Lordships’ disposal. I do not have the information to give the Committee chapter and verse right now but we will give noble Lords chapter and verse before we get to the next stage of the Bill.
I acknowledge that there is a problem with enforcing awards. With that in mind, and in order to recognise to some extent noble Lords’ interpretation of this matter in tabling this amendment and the reference to it at Second Reading by my noble friend Lord Razzall, we are going to commission some research before Christmas. We are about to appoint someone, who will report on the subject in April. We totally acknowledge that this needs to be right. All of us in this Room share the same concerns, and we are committed to going along the same path together. On that basis, I hope that the noble Lord will withdraw his amendment.
Lord Young of Norwood Green
My Lords, I welcome the invitation to discuss the issue with the Minister following the consultation. In the light of that assurance, I beg leave to withdraw the amendment.
“(11) Where an employment tribunal makes a financial award against an employer on a claim, that tribunal must also specify a date by which that award must be paid.
(12) A date specified under subsection (11) shall be no later than one month following the date on which the decision was made.
(13) The Secretary of State shall introduce an order providing for the payment of interest by an employer on any award that remains unpaid after the date specified under subsection (11).
(14) Any interest levied under subsection (13) shall be paid to the worker to which the claim has been awarded.”
Lord Young of Norwood Green
My Lords, this amendment follows on from the previous amendment and provides for the tribunal, when making an award on a claim, also to specify a date by which that award should be paid, to be no later than a month following the decision. It also allows the Secretary of State to bring forward regulations providing for the payment of interest on any unpaid awards. I would welcome the Minister’s response. I beg to move.
Lord Marland
Again, I think that I largely responded to this amendment in my comments on the previous amendment. We will be publishing our findings and are assimilating them at the moment. We have committed to publishing them in February, which we will do, and I do not really want to go into too much detail now. I am happy to talk about the whole issue at large with anyone who would like to know about it, and I hope that that answers the question raised by the noble Lord.
Lord Young of Norwood Green
My Lords, I think that that leaves us in the same situation we were in on the previous amendment and, again, I welcome that assurance. In the light of that, I beg leave to withdraw the amendment.
Lord Young of Norwood Green
My Lords, the amendment is an alternative to the public interest test proposed by the Government. The advantage of the amendment is that it deals with the Parkins v Sodexho Ltd points directly by narrowing the breach of legal obligations category at Section 43B(1)(b) of the Employment Rights Act 1996. This is a better solution than the Government’s proposal, as the public interest test is likely to lead to satellite litigation as courts are left to consider what is and what is not in the public interest.
The amendment was proposed by Ian Murray MP during Committee in the Commons, but was rejected. During the Commons Committee, Norman Lamb MP, serving as the Parliamentary Under-Secretary of State for Employment Relations, Consumer and Postal Affairs, objected to the proposal on three grounds: first, that there can be private contractual rights that it is in the public interest to cover; secondly, that the public interest test is needed because the abuse of the whistleblowing provisions is commonplace; and, thirdly, that the proposal will stop workers from gaining protection for trivial breaches of health and safety.
The first point shows a fallacy in the Government’s argument, as it seems to suggest that there are private employment rights that it is in the public interest to cover, therefore undermining the need to have the Government’s test.
The Government state that the provision is being widely misused. There has not been consultation on the issue, and all evidence is anecdotal. Although the Parkins v Sodexho Ltd point may have led to some individuals misusing the legislation, the Government’s approach is worrying. They overestimate the scale of the problem. Whistleblowing claims lodged with the Employment Tribunal Service account for less than 1% of all claims. During the Scrutiny Committee, Public Concern at Work provided evidence to show that during 2009-10, only 35 judgments involved a Parkins v Sodexho Ltd point out of 464 substantive judgments.
Thirdly, the point about triviality is misguided. The purpose of PIDA is to prevent a disaster and to encourage workers to speak up when they have suspicions. Issues that at one point seemed trivial may in fact be indicative of underlying problems in an organisation and could be the tip of the iceberg. A public interest test may have the unintended consequence of focusing on how big the disaster is or was likely to be and mean less focus on reporting early suspicions. Issues such as missed medication in a care home may seem relatively minor compared to a multi-million pound fraud, such as that in the high-profile Olympus case, but the former could be a matter of life and death.
Moreover, the test builds the perception of barriers in the protection of whistleblowers. When that is added to the fact that PIDA is little known and often misunderstood, we believe that the legislation will be undermined by that approach. It will also add to the idea promulgated in the media that if you are a whistleblower, you will be burned and that the law is too complicated to protect you.
In sectors such as health and care, where whistleblowing can save lives and taxpayers’ money, and where gagging clauses and hierarchical professions and workplaces impose real obstacles for the individual, such an amendment will be seen as another obstacle. The honest and reasonable whistleblower, faced with an increasingly complex piece of legislation to navigate, should they be poorly treated, may not choose to speak up. That is a rather damning and worrying position, nearly two decades on from the Bristol Royal Infirmary inquiry, when the whistleblower, Dr Stephen Bolsin, was forced to leave the UK to find work. That shows the pressures on whistleblowers in difficult and sensitive situations. I beg to move.
Lord Marland
My Lords, I have been very interested in the whole discussion on whistleblowing. I thank the noble Lord, Lord Touhig, and his team for their input to our thinking in the past few weeks. It has shed light on a number of issues that we will deal with later in his amendments, which are well thought out and on which we are coming to a conclusion. I want all Peers to know how important we believe this matter to be and how important it is to get it right. We are all singing off the same hymn sheet and obviously want to protect the whistleblower, and that is very much part of what we want to do.
My concern is that the amendment would narrow the whistleblowing provision. Public interest is critical: that is the primary thing rather than breach of contract. The noble Lord, Lord Young, has thrown up a number of examples of breach of contract and we could counter with examples showing where it does not quite work. I am delighted that the noble Lord, Lord Borrie, has just arrived because he is the one we have looked back to in coming forward with this. I wanted to look this up when we first embarked on this issue: at Second Reading on 11 May 1988—we were only children then—the wisdom of the noble Lord, Lord Borrie, had been honed to absolute perfection in the Public Interest Disclosure Act. I shall not read all of his speech but the following words are spot on. He said:
“As I hope I have made clear, this measure will encourage people to recognise and identify with the wider public interest and not just their own private position”.—[Official Report, 11/5/98; col. 891.]
I consider that in returning to contract people would identify with private position rather than the wider public interest. That is the seriousness of the threat. My view and that of the Government has not changed since then—I have given only an extract from an excellent speech—and I believe that we should carry on on that basis. I hope that will encourage the noble Lord to withdraw his amendment.
Lord Borrie
It is hardly for me to criticise when the Minister has quoted from a speech of mine in the most favourable terms, but the debate was in 1998, not 1988.
Lord Marland
I apologise. Of course, the noble Lord’s wisdom had been honed even further by 1998, which gives the speech more gravitas.
Lord Young of Norwood Green
I thank the Minister for his response. We will read Hansard carefully to see whether we need to return to the issue. I beg leave to withdraw the amendment.
Lord Marland
“(2) Section 43K of that Act (extension of meaning of “worker”) is amended as set out in subsections (3) to (8).
(3) In subsection (1)(ba)—
(a) for “section 84 or 100 of” substitute “section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to,”;(b) for “section 42 or 57 of” substitute “section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,”;(c) omit the words after “the National Health Service (Wales) Act 2006”.(4) In subsection (1)(bb), after “section 17J” insert “or 17Q”.
(5) In subsection (1)(c)—
(a) for the words before “in accordance with arrangements” substitute “works or worked as a person providing services”;(b) in sub-paragraph (ii), after “section” insert “2C, 17AA, 17C,”.(6) Omit subsection (1)(ca) and the preceding “or”.
(7) Omit subsection (2)(ba).
(8) After subsection (3) insert—
“(4) The Secretary of State may by order make amendments to this section as to what individuals count as “workers” for the purposes of this Part (despite not being within the definition in section 230(3)).
(5) An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.”
(9) In section 236(3) of that Act (orders etc subject to affirmative resolution procedure), after “shall be made under section” insert “43K(4),”.
(10) In consequence of the amendments made by subsections (6) and (7), omit paragraph 7(a)(ii) and (b) of the Schedule to the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006 (S.I.2006/1056).
(11) Until the coming into force of the repeal (made by Schedule 3 to the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13)) of sections 27 to 28 of the National Health Service (Scotland) Act 1978 (“the 1978 Act”), section 43K(1)(c)(ii) of the Employment Rights Act 1996 has effect as if it included a reference to section 27A of the 1978 Act.”
Lord Marland
My Lords, government Amendment 21 aims to ensure that the right people are covered by the whistleblowing protections and amends the definition of “worker” in Section 43K of the Employment Rights Act 1996.
Following National Health Service reforms, certain health professionals have been inadvertently excluded from whistleblowing protections as their contractual agreements are not covered by the existing definition of “worker” in the legislation. We believe that it is important that this situation is rectified, so we are amending the definition of “worker” to cover these individuals. We are also taking a power to ensure that future amendments to the definition of “worker” can be made through secondary legislation. This will provide us with the flexibility to react promptly to ensure that the right individuals are protected.
I trust that noble Lords will support this move which remedies an inadvertent omission and ensures that health workers are properly protected. I beg to move.
Baroness Turner of Camden
My Lords, I understand from the Government’s statement and from what the Minister has said that the intention is to ensure that people who ought to be covered by the Act in future will in fact be covered. What bothers me about it, however, is Clause 4, which gives the Secretary of State the right to make amendments as to what individuals count as workers for the purpose of this part. It seems to me that that leaves the whole thing fairly wide open as far as the Government are concerned: they would be able to introduce secondary legislation to indicate that some people are workers and other people are not workers. That is a bit of a difficulty as far as we are concerned.
As far as the clause itself is concerned, it had been my intention to move that it should be opposed, mainly because the TUC’s view is that the wording as it now exists in the Bill introduces a public interest test into whistleblowing rights and, for such claims to succeed, the employee will have to demonstrate that he believed that disclosure was in the public interest and that this belief was reasonable in the circumstances. The view of the TUC was that this would limit the protection that employees have in raising concerns about health and safety issues at work. The Law Society also has doubts about this clause. For these reasons I intended to oppose the clause. However, my noble friends have further amendments which we are due to discuss and which I think will deal with some of the problems that some of us have with this clause.
Of course, I am sure that the Minister will appreciate that it is very important to ensure that workers, particularly those working in very dangerous environments, do not have any restrictions about whether or not they may raise problems they have about health and safety at work. I can remember my own union being very much involved with this many years ago when there was the awful accident at Piper Alpha in the offshore oil industry, in which a number of workers were killed. We discovered on investigation that a number of individuals working there had short-term contracts and, because they had short-term contracts, they were very reluctant to warn about the kind of issues that were of concern to them about safety and so on because they feared that they would not have their short-term contracts renewed.
There is a case for looking at the way that this clause in the present legislation works to ensure that we do cover everybody who might have the possibility of drawing attention to possible dangers in their working environment. We must be absolutely certain that they are not prevented in any way from raising those particular issues. I will not, this evening, be pressing the opposition to the whole clause, but I certainly think that we need to look at it very thoroughly before the legislation leaves us.
Lord Stevenson of Balmacara
My Lords, in the margins of the debate that we have just had the Minister very kindly passed across the original quote from the 11 May 1998 House of Lords Second Reading debate on the then Public Interest Disclosure Bill. I had to read it very quickly because I was not as well briefed as perhaps I should have been when coming to this debate. I want to make a point that I think influences the way that we might need to respond to the clause-stand-part part of the discussion that we are having today.
The interesting thing about this debate is that we are focusing on the words “the public interest”. I suggest to the Minister that it might be sensible to have a discussion about what the Government are trying to do here. Rather than in the openness of this debate, perhaps we could have a side meeting on it. The reason I am saying that is that, reading the speech of the noble Lord, Lord Borrie, one might think that if he made it up as he went along, it was extremely well written. I imagine that he read it out at the time from a brief that he had. The important thing about it—I am sure that the Minister will have been on to this immediately—is that the Minister was selective in what he quoted to us. The noble Lord, Lord Borrie, said that,
“the tribunal must be satisfied that that disclosure was reasonable, having regard, among other things, to the seriousness of the threat to the public interest, whether the danger is continuing or likely to occur again, whether the disclosure was in breach of an obligation of confidentiality owed to a third party and, where appropriate, whether use was made of any whistle-blowing procedure which the organisation had in place”.—[Official Report, 11/5/98; col. 891.]
The noble Lord then went on to make the quote to which the Minister referred.
The point that I want to underline is that the tribunal has to be satisfied that disclosure was reasonable: that is the founding principle of this part of the legislation. “Having regard to” is a secondary feature of that in relation to the seriousness of the threat to the public interest. It seems to me that this amendment substitutes the present arrangements for the reasonableness —having regard to other things—of the seriousness of the threat to the public interest, to a direct concern for “the public interest”, however we define that. It seems to me that in making that rather elegant elision we are in danger of opening a much wider range of issues that need more thought than we can possibly give it in this Committee, which is why I suggest that we have a meeting.
The Minister says that this is ongoing work—we welcome that. He says that it is important—we certainly echo that. He is also asserting, and we would agree with this, that we are singing off the same hymn sheet. So we are surely trying to get to the same place here. I do not think that there is a difference of approach: I just worry that the wording is not as you would do it.
The complexity of this issue is that, as the noble Baroness said very clearly, we all want those who should be covered to be covered by this part of the legislation, but we do not want to have the risk that those who could be covered are not covered by it. I think that that is a really important point. It is in that sense that we would ask the Minister to respond to this and, perhaps, to take up our suggestion of a side meeting.
Lord Marland
I am always available for side meetings to discuss this. I think that the noble Lord, Lord Stevenson, is clutching at straws a little in his interpretation, but then, we each have our own interpretation. I do not see that, at the end of it all, we are going to move this back to breach of contract, to which the previous amendment—which is now withdrawn—related. I am grateful for the noble Lord’s words that we are all trying to move along the same path together. That is why we should continue to discuss this, which would be most welcome.
The noble Baroness, Lady Turner, reminded me of Piper Alpha. I used to be in the insurance industry and that was a seismic event for that industry. How well I remember the loss of life. It was a shocking moment for everybody who was involved in insurance. Luckily those who were worried ended up in jobs because, obviously, the oil industry was able to recover very quickly from that horrendous accident and its expertise was needed.
Both the noble Baroness and the noble Lord, Lord Stevenson, mentioned the list. It is all about definition of “a worker”. We can only remove “a worker” from the definition if that category of worker no longer exists. What we have sought to do in the first part, which I think everyone is very happy about, is to recognise that we have failed to add some workers in. We have put a provision in the Bill to add others in if a worker group does start to exist, and of course we will remove one if they do not exist. It is an ongoing thing, which is why we have provided for that definition.
I am not quite sure where we have got to. Lord Chairman, perhaps with your great wisdom you can guide us. I moved an amendment and I think that the noble Baroness was speaking to her amendment as well as to mine. I ask for guidance, Lord Chairman. I hope that one amendment will be supported and the other will not be pressed.
Lord Geddes
As is normal on these occasions, we take it strictly by the order of the Marshalled List. The question therefore is that Amendment 21 be agreed to.
Lord Touhig
“Duty on employers to prevent detriment caused by others to workers who have made protected disclosures
(1) The Secretary of State shall make regulations requiring an employer, where a worker has made a protected disclosure under section 43A of the Employment Rights Act 1996, to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employer done on the ground that the worker has made the disclosure.
(2) Regulations under this section—
(a) are to be made by statutory instrument, and(b) are not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Touhig
My Lords, I am grateful to my noble friend Lord Wills, the noble Lord, Lord Low of Dalston, and of course my noble friend Lady Dean of Thornton-le-Fylde for agreeing to support Amendment 22. I am also grateful to the Minister, the noble Lord, Lord Marland, for agreeing to meet with me and representatives of the charity Public Concern at Work to discuss this amendment and Amendment 23. I also thank him and his officials for being willing to continue this dialogue with Public Concern at Work these past couple of weeks.
This amendment concerns vicarious liability. Earlier this year, I received a letter from one of three nurses who had been denied protection under the Public Interest Disclosure Act. The three nurses had raised concerns about the qualifications of a fellow nurse. The nurse had been claiming to be more qualified than was in fact the case. The three nurses were subsequently victimised and, as a result of raising honest and genuine concerns, one had threats made to her daughter and to her home. The case went as far as the Court of Appeal, where it was found that vicarious liability does not exist under the Public Interest Disclosure Act. As a result, three totally innocent and good nurses, who simply acted to protect the public, were pursued by the NHS Manchester trust for the cost of the appeal, which amounted to £39,000.
These three nurses acted in the interests of us all but, as a result, have themselves become victims. I have to ask: where do people go to right a wrong such as this, except to Parliament? As things stand, employers are able to escape liability where they do not protect those who have blown the whistle about serious malpractice within their workforce. On top of that, the bullying culture within the workplace is all too common.
Public Concern at Work tells me that bullying as a result of whistleblowing is a common issue raised on their whistleblowing advice line. Indeed, this is so in the case of Nurse Helene Donnelly, who gave evidence to the Mid Staffordshire NHS trust inquiry. She is a whistleblowing nurse who told the inquiry how she was physically threatened by colleagues after raising concerns about standards in the accident and emergency department. She told the inquiry that,
“threats to my physical safety were made”,
to the point where, after finishing work at night, she would have a family member,
“come and collect me from work because I was too afraid to walk to my car in the dark on my own”.
Mrs Donnelly also told the inquiry that she contacted her local Royal College of Nursing representative, who was initially shocked by what she had to say. Later, however, she was told to keep her head down.
Amendment 22 encourages employers to put whistleblowing arrangements in place and, if they do all they can to protect the whistleblower, employers will have a defence. It has been drafted widely to include third parties but, given the Government's review of third-party harassment under the Equality Act, it could be limited solely to co-workers. The letter I received from one of the nurses asks one simple question:
“Is there anything you feel you may be able to do to stop NHS Manchester pursuing us for these costs?”.
Well, there is something we can do and that is to support Amendment 22. I beg to move.
Lord Wills
My Lords, I support Amendment 22, to which I have added my name and which has been so ably put forward by my noble friend Lord Touhig.
As we have heard, Amendment 22 seeks to close a loophole which was opened up by a Court of Appeal decision on a case brought by the three nurses from Manchester. The Court of Appeal judge who ruled in that case said:
“I accept”,
that the claimants’ lawyers,
“may be right to say that if the Tribunal decision is allowed to stand, it means that on one view of the matter whistleblowers are inadequately protected. If so, any remedy must lie with Parliament”.
We now have an opportunity to provide that remedy and I hope that the Government will take it.
The Minister’s noble friend, the noble Earl, Lord Howe said in October last year, when the results of this case were heard:
“We are considering whether we need to do more to protect whistleblowers following this judgment”.
Can the Minister tell us the outcome of those considerations within government; and, if they are not going to act now, why not?
As we have heard from my noble friend, there is significant evidence from the organisation Public Concern at Work that harassment and bullying by co-workers can often be a consequence of whistleblowing and a substantial deterrent to it. This is not acceptable. It is not acceptable that an employer can escape liability for failing to protect a whistleblower from such harassment and bullying. The amendment offers a simple way of remedying such an obvious anomaly by mirroring equality legislation. I hope the Government will feel able to accept it.
I also hope that the Minister will look favourably on my Amendment 23E, which further refines this approach by providing for personal liability against workers who bully or harass co-workers for whistleblowing. It will act as a powerful deterrent to such behaviour and, in doing so, help to encourage whistleblowing. It mirrors provisions in discrimination legislation and I hope that the Government will feel able to accept it.
Lord Low of Dalston
My Lords, I have added my name to the amendment but I do not think I can say a lot more than has been so eloquently said already by the noble Lords—they are not my noble friends—Lord Touhig and Lord Wills. Clearly there is a loophole in the law. The court has said that if the matter is to be resolved it is down to Parliament to do it. The Minister’s noble friend and colleague Lord Howe has recognised that there is a need to give attention to this matter and we shall all be interested to hear how far the Government have got with that consideration.
We have the opportunity now to do something about this and I am sure that everyone agrees that we should. I have been horrified by the cases we have heard about—the Manchester nurses and others—where people have been subjected to threats of having their houses burnt down and so on. This is clearly intolerable. There needs to be a legal remedy and the one proposed is perfectly appropriate. It does not impose an unduly onerous burden on the employer, who is simply required to take no more than reasonable steps. That being the case, I strongly urge the Grand Committee to support the amendment.
Baroness Dean of Thornton-le-Fylde
My Lords, I support what has been said by the noble Lord, Lord Low of Dalston, who happens to be a friend. If there is a part on whistleblowing in the Bill when it leaves the House, these two amendments will make a significant difference.
We could all regale the Committee with a number of stories about people being bullied and intimidated, but the case in Manchester went the whole hog and the courts were not able to help. Not only were the three nurses concerned unfairly treated but the case sent a strong message to people in the health service to keep their heads down and not to complain because, even if they complain and it goes through the ultimate procedure, the employer will not be able to stand with them. In fact, in this case the employer pursued the nurses for damages.
I do not wish to extend the debate. This is a principal issue in the Bill as it stands and, if this House can make an amendment along the lines of the one proposed—even if it is not worded perfectly at the moment—it will be a major contribution. There are no divisions between the parties on this. We all want to see the role of the whistleblower not only enhanced and supported but protected, otherwise the message going out will be, “We have the legislation, but please do not use it”.
Baroness Brinton
My Lords, I add my support to Amendments 22 and 23E for all the reasons already stated. It is unfortunate that many of the examples cited have referred to the NHS, where it seems that there is still quite a culture against whistleblowing. Having been involved in two organisations as they created whistleblowing policies, I know it is not just a matter of legislation; it is very much about changing the culture within an organisation. It seems to me that the remedies for solving this very particular problem exist within Amendments 22 and 23E, so I do hope that the Government will consider them.
Lord Borrie
I apologise for not being here earlier when the subject of whistleblowing obviously came up in discussion. I was hoping to be here from the beginning, but I am afraid I am one of those caught by having an interest in another Bill—the Crime and Courts Bill—that is going through the Chamber. I waited until my interest had ceased there before coming here, for which I apologise.
I support this amendment very warmly. The more I hear of it from speakers from the Liberal Democrat Benches and the Cross Benches, as well as from the Official Opposition, the more strongly I feel that there is a gap in the whistleblowing legislation that needs to be filled.
The Public Interest Disclosure Act 1998 was a Private Member’s Bill that would not have reached this House at all had it not been for the efforts of Richard Shepherd, still a Member of Parliament for Aldridge-Brownhills, who took up the cudgels, helped by the organisation Public Concern at Work, which still exists and does valuable work. When he had the support of the Commons, I was able to take on the task of putting it through the House of Lords. Several of my supporters at that time are sitting in this Room today, including my noble friend Lady Dean of Thornton-le-Fylde, who has just spoken so helpfully on this amendment.
I feel that the gap in the whistleblowing legislation is a fundamental one that really needs to be filled. A whistleblower is protected against unfair dismissal if he is covered by the existing legislation and has reported on some wrongdoing in the workplace, but he cannot be protected from fellow employees. They may engage in bullying, harassment, or whatever you would like to call it, against the whistleblower for doing what many people in certain cultures within certain employee workforces would call “sneaking”. The whistleblower has snitched on fellow workers, and in many places of employment that is regarded as wrong and it is considered that the whistleblower deserves to be pushed around in every possible way. Making the employer responsible or vicariously liable—I am sorry to use that phrase if noble Lords are fed up with the lawyer language in this place—for the faults and errors in the culture of their workforce is what is needed. That will do the trick, making it in the employer’s own interests to ensure that victimisation, harassment and bullying does not take place. It will be a powerful deterrent if this amendment is passed.
A whistleblower can be affected adversely not only by his employer, for which there has now been protection for many years, but by fellow employees, and this amendment is meant to deal with that. My noble friend Lord Touhig was active in this area in the 1990s, before I was. If this amendment is carried it will be because he and Public Concern at Work have realised and understood that there is a gap that must be filled when we have the opportunity.
Lord Brooke of Sutton Mandeville
My Lords, I have no idea what the Minister is going to say in response to this but I raise one textual question which I address to him rather than to the mover of the amendment. In Amendment 22, in the fifth line of subsection (1), there is a reference to “a person” in the singular. If my noble friend were minded to accept this amendment, I would be interested to know whether he feels that it would have been strengthened by the inclusion of “or persons” after “person”. It seems possible in terms of the case that the victimisation may be the work of more than one person.
Lord Young of Norwood Green
My Lords, I, too, support the thrust of what my noble friends Lord Touhig and Lord Wills seek to do with these amendments, which is to extend vicarious liability to whistleblowing legislation. This loophole has been graphically explained to us in the context of three nurses from Manchester who raised a concern about a colleague lying about his qualifications. The nurses raised their concerns within the service and the primary care trust and their concern was upheld. However, as we have also heard, the nurses were subject to bullying and harassment from co-workers. One of the nurses received a telephone call threatening her daughter and to burn down her home. As we have already heard, the case proceeded as far as the Court of Appeal, which found that vicarious liability does not exist in the Public Interest Disclosure Act as it specifically does in discrimination law.
We have also heard that shortly after the publication of the judgment the noble Earl, Lord Howe, the Health Minister, agreed that this area needs to be reviewed. Public Concern at Work reports that it routinely hears on its advice line about harassment and bullying of whistleblowers by co-workers. It is bad news for whistleblowers everywhere if those who are bullied by fellow staff members are not protected and represents yet another barrier that may inhibit workers from raising legitimate concerns, which are in the public interest, over wrongdoing by their employer. The amendment by my noble friend Lord Touhig would introduce a new clause that imposes a duty on employers,
“to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employers done on the ground that the worker has made the disclosure”.
My noble friend Lord Wills proposes a further refinement to this approach, which would be to include personal liability against workers who bully co-workers for blowing the whistle. Such an amendment is likely to have a powerful deterrent effect and will mean that those who may otherwise be tempted to victimise a colleague for blowing the whistle may think twice because of their own potential liability for doing so. Again, this is included in the relevant Equality Act, that of 2010.
These amendments have even more relevance if we look at the current circumstances where the lack of whistleblowing in recent high-profile cases—such as the Jimmy Savile scandal, the high mortality rates under Mid Staffordshire NHS Foundation Trust and phone hacking at the News of the World—suggests that much more needs to be done to encourage and, perhaps even more importantly, protect workers blowing the whistle on malpractice and wrongdoing in the workplace. Workers are the eyes and ears of any organisation and often the first to know if things are going wrong or to have suspicions about malpractice in the workplace. Workers can prevent the disaster from happening and alert their own companies and regulatory authorities to prevent health and safety dangers, financial malpractice and environmental risks that may affect members of the public.
It is over 13 years since the Public Interest Disclosure Act 1998 and we believe that it is high time that the whole system should be reviewed—we would welcome the Minister’s views on that—to identify where further protection is needed to encourage employees to speak out when they see wrongdoing taking place.
Lord Marland
Again, we are extremely sympathetic towards and supportive of each other. It is not just the Cross Benches, the Labour Party and the Liberal Democrats who are keen to get this right but the Conservatives as well. I reiterate my thanks to the noble Lord, Lord Touhig, and Public Concern at Work, with which we are working very closely on this issue. I also thank the noble Lord, Lord Wills, for his input, even though we have not had the pleasure of discussing this subject outside this Room—something that I should like to do in future. I am jolly glad that we included the NHS provision in the previous amendment, because some progress seems to have been made there in view of some of the absolutely ghastly stories that have been referred to.
My noble friend Lord Brooke of Sutton Mandeville brought up a very important point. I am told that under the Interpretation Act “single” means “plural” when necessary, so I do not think that we would need to amend that in the amendment.
I have had wide-ranging discussions with the noble Lord, Lord Touhig, and Public Concern at Work across the whole piece, and those discussions have covered Amendments 23 and 23F, which we will be coming to in a few minutes. We are very conciliatory on all this, and on Amendment 23F, in particular, both parties have formed a set of words to deal with the issue of good faith and so on. I think we have found satisfaction with Public Concern at Work and with the noble Lord, Lord Touhig, so perhaps I may look at the issue as a whole.
We need to be careful when going down this route with Amendments 22 and 23. The truth is that the absence of vicarious liability and whistleblowing is not a loophole because there is legislation that provides for it, and it provides for both the employer and the employee. I am struck, as I always am, by the point made by the noble Lord, Lord Borrie, about the employee having protection as well as the employer. That is fundamental. Indeed, they would both be protected under the Protection from Harassment Act 1997; that is the legislation that they would return to in order to claim their rights. Therefore, they have the right protection in this area. It is a strong law that, sadly, has not encapsulated all the whistleblowing issues, but nothing is ever entirely encapsulated. However, whistleblowers have an absolute right and this amendment would put in another level of protection, which is not in the Bill because it already exists.
We should be looking at improving the guidance on this issue. I have instructed my officials to look at the guidance that we are putting on the government website to show where the rights of recourse are and what rights the employer and the employee have under the interpretation of the Protection from Harassment Act. This will be on our gov.uk website. On the basis that we will have an ongoing discussion between now and Report, I hope that the noble Lord will feel confident about withdrawing his amendment for the time being.
Lord Wills
Can the Minister clarify something for me? I am very grateful for his openness and willingness to carry on a discussion about this but I should be grateful to know the Government’s position on what Lord Justice Elias said in the Manchester case, which we have heard about. I accept that it is a qualified statement but he said he accepted that the claims lawyers,
“may be right to say that if the Tribunal decision is allowed to stand, it means that on one view of the matter whistleblowers are inadequately protected. If so, any remedy must lie with Parliament”.
On the facts of that case, is it the Minister’s view that whistleblowers are or are not inadequately protected?
Lord Marland
I do not have a view because I do not have enough knowledge of the subject. As the noble Lord rightly said, he is quoting a small piece that I am unable to form an opinion on because I do not have enough evidence to support one view or another. However, I shall be happy to respond to the noble Lord on that issue. It is a perfectly reasonable question but it is too specific for me at the moment, I am afraid. I would need to take legal advice on it because I am not qualified in that area. I know that that is not a satisfactory answer but I hope that the noble Lord, Lord Touhig, will withdraw his amendment.
Lord Touhig
My Lords, I thank all noble Lords for their contributions. I echo the point made by the Minister; this issue is supported across the House. We are all in the debt of Richard Shepherd MP, who pushed hard to secure this legislation. When I was dealing with it a year or so before, I was not successful, but I should like to put on record the huge support I had from one Iain Duncan Smith, who worked very hard with us to try to ensure that this legislation became law.
I understand some of the Government’s worries and concerns. We have had a useful meeting with the Minister—I have already thanked him for that—and his officials but, at the end of the day, the real prize would be a complete review of the Public Interest Disclosure Act. Aneurin Bevan once said that our principles remained constant but our policies, like tools, have to be reworked with each generation because they get worn out with use. We need to review and revise the Public Interest Disclosure Act.
I hope the Minister and his officials will feel able to continue the dialogue, not only with me but with other noble Lords and Public Concern at Work, because we can improve this legislation by the time we get to Report and Third Reading. With that hope and aspiration, I beg leave to withdraw the amendment.
Lord Touhig
“Removal of requirement for protected disclosures to be made in good faith
(1) The Employment Rights Act 1996 is amended as follows.
(2) In section 43C(1) (disclosure to employer or other responsible person), omit “in good faith”.
(3) In section 43E(b) (disclosure to Minister of the Crown), omit “in good faith”.
(4) In section 43F(1)(a) (disclosure to prescribed person), omit “in good faith”.
(5) In section 43G (disclosure in other cases), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.
(6) In section 43H (disclosure of exceptionally serious failure), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.”
Lord Touhig
My Lords, Amendment 23 is supported by my noble friends Lord Wills and Lady Dean of Thornton-le-Fylde and by a good friend to everyone on all sides of the House, the noble Lord, Lord Low of Dalston. I have been a Member of the House for less than three years and—I am sure I am not alone in saying this—I could not have had a better friend to encourage and support the things we share in common. I think I speak for people on all sides of the House in that respect.
The amendment seeks to remove the good faith test. It is essentially a tidying-up amendment which needs to be read in conjunction with the public interest test that the Government propose in Clause 15. We have tabled the amendment as a means of reducing the number of hurdles that an individual has to jump in order to succeed under the Public Interest Disclosure Act 1998, as enacted into the Employment Rights Act.
As Clause 15 stands, an individual who brings a whistleblowing claim would have to answer at least four questions. They would have to show, first, that they had made a protected disclosure under one of the categories set out in Section 43B of the Employment Rights Act, which includes information about criminal offences, environmental dangers, health and safety issues, miscarriages of justice and the breach of legal obligation.
They would have to show, secondly, that it was their reasonable belief that the protected disclosure was in the public interest and, thirdly, that they have made a qualifying disclosure, the tests of which vary according to whom the individual discloses the information to. The lowest test for disclosure is where an individual raises a concern internally or with those who are legally responsible for the workplace, and the highest is where an individual raises a concern with an external body—for example, an organisation such as Greenpeace or any part of the media. Individuals need to show that they meet one of the preconditions in the Act and whether the disclosure was reasonable in the circumstances, paying attention to the seriousness concerning to whom the disclosure is made and whether there has been a breach of confidentiality. Fourthly, such individuals will have to show that they have made the disclosure in good faith, which has been interpreted by the Court of Appeal as meaning that the predominant motive for raising concern should be in the public interest.
Individuals would need to show that they had fulfilled all the above conditions to be protected. To have an additional public interest test is simply an unnecessary further hurdle. I am sure that we could all give examples of people being deterred from blowing the whistle. One of my motivations for becoming involved in this issue many years ago was that there were seven reports of ferries sailing with their bow doors open before the “Herald of Free Enterprise” went down. A young lady who left working for an outward bound centre in Dorset raised concerns about its practices, and a number of youngsters lost their lives some time later. I often refer to a young girl who was a student of 16. She had a job on a delicatessen counter in a major supermarket where she discovered that the manager was changing the sell-by dates on cooked meats and other things, putting public health at risk.
There are many cases which I am sure we could all repeat, so we need not put a further barrier in the way of people blowing the whistle when something is wrong. Given that Clause 15 proposes a public interest, it would be simpler to remove the good faith test entirely. This amendment would, in effect, be a counterbalance to Clause 15. I beg to move.
Lord Low of Dalston
My Lords, I strongly support the amendment and hope that I will be worthy of the kind remarks of the noble Lord, Lord Touhig, in referring to my support a few moments ago.
I cannot muster the same forensic analysis as the noble Lord has treated us to but, in my view, the matter is simple. If we leave the good faith test in the Act and add to it the public interest test, which the Government want to add to the legislation, we shall simply be doubling the hurdles that the whistleblower has to clear. When Parliament passed the Public Interest Disclosure Act, it did not insert a public interest test in the legislation. Good faith was seen as the appropriate safeguard, and Dame Janet Smith in her report on the Shipman inquiry commented that it would perhaps make sense if the good faith test were replaced by a public interest test. The Government are acceding to that suggestion but they are leaving in the good faith test. I submit that with this new public interest test inserted in Clause 15, whistleblowers would need to show both that they had the reasonable belief that their disclosure was made in the public interest and that, with the good faith test, their predominant motive for making a disclosure was in the public interest. That creates an additional hurdle for the whistleblower to clear and a requirement to satisfy a sort of double public interest test.
Removing the requirement of good faith, as proposed in the amendment, would simply restore the law to its former balance as between the whistleblower and the organisation, and refrain from imposing additional tests on the whistleblower. Retaining the two tests would unnecessarily complicate the law, requiring the whistleblower to satisfy different tests with different standards: in the one case reasonable belief; and in the other, that there is no ulterior motive. So the amendment would simplify the law, which is in danger of becoming overcomplicated, and clarify and simplify the protection for whistleblowers. I urge the Committee to accept it.
Lord Wills
My Lords, I, too, have added my name to the amendment and would like to say just a few words in support of it.
As we have heard, the new test proposed in Clause 15 attempts to remedy a loophole created by the case of Parkins v Sodhexo Ltd. Most people agree that that loophole should be closed but, in doing so, the Government risk creating a new barrier to whistleblowers, adding new complexity to a legal framework which can already be daunting enough for those wishing to expose wrongdoing. The amendment proposed by my noble friend Lord Touhig is an attempt to remedy that by removing the “good faith” test and, as he explained, to rebalance the legislation back towards protection of the whistleblower.
In doing that, as we have just heard from the noble Lord, Lord Low, my noble friend is following the recommendations of Dame Janet Smith in the Shipman inquiry, who said that in her view the words “in good faith” could be omitted from the Public Interest Disclosure Act. She argued:
“The three tiered regime of the PIDA, with its incrementally exacting requirements, should afford sufficient discouragement to those minded maliciously to raise baseless concerns”.
She continued:
“If the words ‘in good faith’ were removed from the PIDA, the test under the PIDA would be brought more closely into line with the test for ‘malice’ in defamation proceedings. It would seem to me to be desirable that the tests should be as close as possible so that a person thinking of making a report can be safely advised about his/her position in respect of both types of proceedings”.
I know that the Government share the view of everyone on the Committee that everything possible should be done to encourage the exposure of wrongdoing, and I hope that even at this relatively late stage, they will feel able to accept what is a modest and sensible proposal to that end. If, for whatever reason, they do not, I would be grateful if the Minister could explain why the Government reject the arguments of Dame Janet Smith. Why do they not accept that the three-tiered regime, with its incrementally exacting requirements, affords sufficient discouragement to those minded maliciously to raise baseless concerns—especially as they are remedying the loophole created by the case of Parkins v Sodhexo Ltd? Secondly, can the Government explain why they think that it is not desirable for the tests in the Act to be brought more closely in line with the test for malice in defamation proceedings?
Having said all that, I understand that the Government are engaged constructively in discussion with Public Concern at Work. I hope that they may feel able to accept the compromise amendment which I have tabled as Amendment 23F. That recognises that, for whatever reason, the Government are not keen to accept Amendment 23 but might be prepared to accept an amendment which removes good faith as an issue in assessing liability but retains it as a consideration in assessing remedies.
As I am sure the Minister will be aware, precedent has been established with the Polkey reductions, which are used in allowing for unfair dismissal damages to be reduced where there has been contributory negligence. Amendment 23F is a compromise which will at least mitigate the problems with the status quo by ensuring that motive will not play a central role in securing protection for whistleblowers. Although the Minister may not be able to give a definite statement on this now, I hope that he can reassure us that he expects that he will be able to reach a form of wording which will be satisfactory to all sides in a compromise amendment.
Lord Young of Norwood Green
My Lords, I shall speak briefly to Amendments 23 and 23F, because people who are far more expert in these areas have already forensically examined them. My noble friends Lord Touhig and Lord Wills, have already explained the reasoning behind them. They raise the important issue of how a broad public interest test would interact with the existing good faith test.
When Parliament passed the Public Interest Disclosure Act, it did not place a public interest test in the legislation, choosing instead to define the categories of wrongdoing under which disclosures in the public interest disclosure action fit. Good faith was seen as the appropriate safeguard.
If the public interest test is to be considered at all, it is crucial that it is considered in conjunction with the test of good faith. With the Government’s new test proposed in Clause 15, whistleblowers would need to show that they had reasonable belief that their disclosure was made in the public interest. Later there is the good faith test that their predominant motive for making a disclosure was in the public interest, creating, in effect, a double whammy of double public interest. Amendment 23F, proposed by my noble friend Lord Wills, would that good faith would become a consideration only at remedy stage. There is already a precedent for this, similar to the Polkey reductions used in allowing for unfair dismissal damages to be reduced where there has been contributory negligence.
The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, I hate to interrupt the noble Lord, Lord Young, but there is a Division in the Chamber and therefore, unless he can draw his remarks to a very speedy conclusion, we will adjourn now for 10 minutes.
Lord Young of Norwood Green
I can. As I was saying, I am grateful to my noble friends Lord Touhig and Lord Wills for tabling both the amendments, which provide the Committee with an opportunity to debate the proper application of the good faith test in the context of a new public interest test, which we are extremely concerned should not present a double barrier to workers who blow the whistle. We look forward to hearing from the Government on this and welcome the Minister’s assurances on further consultation.
Lord Marland
My Lords, a lot of what has been said was said in relation to the previous amendments. I am struck by the remark of the noble Lord, Lord Touhig, about the Public Interest Disclosure Act being looked at again. I had probably better be careful what I say but if I blink it is in sympathy. That is not for this Bill or for this moment, but it is a valid point. I am grateful for everything that the noble Lord, Lord Low of Dalston, said as well.
As I said earlier, we are in a number of discussions with the noble Lord, Lord Touhig, and Public Concern at Work, within which we would be happy to embrace the noble Lord, Lord Wills. We are coming up with a form of words that is going through the ministerial process for approval at the moment. The form of words that we desire has been agreed, in principle, between the two groups but it needs ministerial sign-off. We will be going through that process before I can be clearer on that issue. On the subject of Dame Janet Smith’s report, we do not reject her findings at all. We believe that motive is a relevant issue and we are also working with Public Concern at Work on that.
Both these amendments are worthy of consideration and we are considering them, as we are the previous amendments. If I can slightly keep my powder dry for the moment, I am not able to give the Committee a concrete answer except that it is going through the appropriate channels to try and resolve the issue. In the next few weeks—before Christmas, I hope—I may be able to discuss with noble Lords the outcome and agree a way forward, which will help us by the time we get to Report. On that basis, I hope that the noble Lord will withdraw his amendment.
Lord Touhig
My Lords, again, I am grateful to colleagues who took part in the debate and in particular to the Minister for his response. It is the season of good will; I am sure that we may have some further good will before we reach Christmas itself but I have no doubts that there is a willingness on all sides to work together here to try to make better legislation. When I had a Private Member’s Bill, I certainly found that the more pre-legislative scrutiny we had the better Bills we made. The way that we are debating this, at the end of the day, better legislation will be coming out of it where whistleblowers are concerned. With those few remarks, I beg leave to withdraw my amendment.
“Protected disclosure: blacklisting
(1) Section 2 of the Public Interest Disclosure Act 1998 (right not to suffer detriment) is amended as follows.
(2) After inserted subsection (1), insert—
“(1A) A person has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by an employer on the ground that they have made a protected disclosure.
(1B) Actions under subsection (1A) by a employer relate to—
(a) arrangements made for deciding to whom to offer employment; (b) the terms on which an employment offer is made;(c) failure to offer employment.””
Lord Young of Norwood Green
My Lords, thousands of construction workers have been secretly blacklisted and denied jobs on building projects such as the London Olympics. Individuals branded as troublemakers for being members of a trade union or for raising concerns in the workplace over important issues such as health and safety had their names passed to more than 40 construction firms. In his evidence to the Scottish Affairs Select Committee last month Mr Ian Kerr, who ran the consulting association responsible for gathering the names of thousands of workers, told the committee that he went to radical bookshops and political meetings to gather information, saying:
“I would have had a file on the Socialist Workers Party. I had a file on the National Front. Any organisation that seemed to be jumping up and down about construction, it was my role to keep tabs”.
The committee heard that trade union activity, health and safety concerns or standing up for colleagues was enough to blacklist a worker, leading to work drying up. My colleague, the shadow Business Secretary, Chuka Umunna, has also raised concerns over whether blacklisting is going on for Crossrail, the new £16 billion rail network.
The construction blacklisting scandal exposed in 2009 highlighted a gap in protection for job applicants. At present, if a prospective employer accesses a blacklist or becomes aware of a job applicant’s whistleblowing history and decides not to give them a job on that basis, the applicant would have no course of action. The 2010 blacklisting regulations deal only with lists of individuals who have been involved in trade union activities. The Equality Act provides protection at the point of recruitment and we think it is vital that the right message is sent to employers that discriminating against whistleblowers at this point is unacceptable.
The amendment calls for the Public Interest Disclosure Act to be brought into line with the Equality Act 2010 and to make clear that individuals who blow the whistle will continue to have protection under the law against blacklisting by future employers on grounds that they have raised legitimate concerns over wrongdoing at previous employers. I beg to move.
Baroness Donaghy
My Lords, I was the author of a report on construction fatalities a couple of years ago and I spent a lot of time with both employers and employees on that issue. During the course of my report it became known that a company was keeping records of its former employees—it was in all the papers—and the trade unions concerned asked me to include something about that in my report. Although I was very sympathetic and met a number of the people involved who had been blacklisted and had not worked for years in the construction industry, I did not feel that I could put that in the report because I had to be clear what caused fatalities in the construction industry—that was my brief. You could extrapolate and say that if you prevent people reporting genuine health and safety dangers it will cause risk in the industry and is likely to cause fatalities. However, as I prepared the report in a pragmatic way and had to have absolute proof—we commissioned research on this—I did not feel that I could make any recommendations in that respect.
I met a number of what I regard as good construction employers, some of whom were embarrassed to be on the list of people who paid this company. I asked them about it and they said it was an administrative error and they did not realise that they were still paying. You have to sometimes accept in good faith what people are saying. In the past 15 years they have achieved a much better record on health and safety and it is no coincidence that health and safety was often talked about in the run-up to the Olympics. I pay tribute to the Labour Government and the continuing work of the coalition Government in making sure that there was not a single fatality on the Olympic site. It was a fantastic achievement. The good employers say that it is not only an issue of reputation: if you are hard-nosed about it and you have a fatality on site, the site will be closed for the whole day. So it is not in their interests to have an unsafe building.
I have met employers who do not have quite that view. They claim that they have a right to pay someone to find out about troublemakers and poor workers. When I put it to them that this list had been proved to be completely inaccurate—it had even got the names wrong in some cases—they would shrug their shoulders and say that it was just bad luck.
I spent a whole Saturday with a group of workers who had been blacklisted from the construction industry. To say that the effect on them was traumatic is putting it very mildly. Most of them were now working on a self-employed basis with small companies, some of them for 20 to 25 years. They had never worked for a large company. The ones who were trade union activists were probably realistic about why it had happened; they were fighting for their fellow workers and were regarded as trouble-makers, which was why they had been blacklisted. Others had no idea. They did not know why their names had been put on the list and could not understand it.
This is a very murky world and I accept that it is incredibly difficult to prove whether these lists exist. They are like will-o’-the-wisps; they move around. One company will close but they will make jolly sure that another company opens up somewhere else. It is incredibly difficult to prove. The worker himself finds it very difficult to prove. All I can say is that the impact on individuals and their families is profound. I wish that I could have done something in making recommendations in that report but it would have been dishonest of me. If there is any way that we can make life better for some of these workers who do not know why they are not being employed, I hope very much that we can do so. I support the amendment in that spirit.
Lord Marland
The noble Baroness speaks with great authority on the subject. Of course, it is a difficult grey area. As we know the Employment Relations Act 1999 (Blacklist) Regulations 2010 already protects individuals but I am struck by what the noble Lord, Lord Young, and the noble Baroness, Lady Donaghy, said. If I may I shall take this away and give it some further consideration outside this Committee and perhaps come back on Report. The noble Lord, Lord Young, is looking surprised now—in fact, stunned—but it is Christmas time. I hope on that basis that he will withdraw his amendment.
Lord Young of Norwood Green
That is why I do not play poker. I am taking into account that it is a Christmas gift from the Minister. I accept his intention in good faith, which is a phrase we have been using, and I beg leave to withdraw the amendment.
“Disclosures exempt from confidentiality duties: supplementary provisions
After section 203(3)(f) of the Employment Rights Act 1996 (restrictions on contracting out), insert—“(g) the employee or worker must be advised of their rights under section 43J of the Employment Rights Act 1996”.”
Lord Young of Norwood Green
This amendment would place a positive requirement on lawyers advising in the settlement of claims that they advise claimants about their rights to be freed from any contractual agreement with their employer not to disclose certain information where they legitimately seek to make a protected disclosure. Little attention has been paid to the provision in Section 43J of the Public Interest Disclosure Act which outlaws any contractual clause that prevents workers from raising a public interest concern. The cases of Dr Kim Holt and Great Ormond Street Hospital relating to the baby P case—where the trust offered her £80,000 as compensation if she left quietly—and of the former inspectors at the Care Quality Commission giving evidence to the Mid Staffordshire inquiry highlight the need for greater attention to be drawn to Section 43J of the Public Interest Disclosure Act and for there to be tougher enforcement.
The amendment simply seeks to improve awareness among workers over their rights as whistleblowers by placing a simple requirement on any legal officer advising them over their case to make them aware of those existing rights under the Public Interest Disclosure Act. I therefore hope that the Government will look favourably on this amendment as a simple change that would help improve the application of the existing Act. I beg to move.
Lord Marland
My Lords, I am grateful for this probing amendment. However, I am not convinced that we need to go this way because we already have legislation in place. Section 43J of the Employment Rights Act 1996 provides that any term in an agreement which precludes a worker from making a protected disclosure is void. Furthermore, all lawyers have a duty of care to advise their clients properly on all aspects of the law, whatever the situation. That is their duty of care and, if they do not apply it, they may be struck off.
I understand the motive behind the amendment but I trust that the noble Lord will acknowledge that there is legislation in place and that it would just be putting icing on the Christmas cake, which in this case is a double layer and not entirely necessary. Therefore, I hope that the noble Lord will withdraw his amendment.
Lord Young of Norwood Green
I will take note of what the noble Lord said and give consideration to that view to see whether we need to return to this issue on Report, or whether we can clarify the matter further in our consultations. On those grounds, I beg leave to withdraw the amendment.
“Proceedings in public interest disclosure cases
(1) After section 8 of the Employment Tribunals Act 1996 (procedure in contract cases), insert—
“8A Publication of information
(1) Where proceedings include a claim under the Public Interest Disclosure Act 1998, the president shall, within 28 days of receipt of the claim, publish electronically and without charge the names of the parties and the relevant regional office.
(2) A person who is not a party to those proceedings may obtain from the tribunal a copy of such documents from the proceedings as he may obtain under the Civil Procedure Rules where proceedings are brought in a court.
(3) In this section, “President” has the same meaning as in section 7A(3).”.”
Lord Young of Norwood Green
My Lords, Amendment 23D aims to improve transparency around whistleblowing cases that have been settled privately where it is in the public interest that this information should be in the public domain. I should like to put on the record from the outset that I would not wish to see this introduced without further protections against blacklisting of whistleblowers.
Since the cross-party initiative that brought the Public Interest Disclosure Act into force there has been considerable ongoing debate and discussion around its operation and effect. This has not always been informed by reference to analysis of cases, in part because they have not been readily accessible.
Claims made to the employment tribunal, including those made under the Public Interest Disclosure Act, are not made public, unlike in civil courts. At present, three-quarters of PIDA claims settle in private, with no information in the public domain about the underlying wrongdoing. The lack of openness is exacerbated by the widespread concern that many employers seek to gag employees from making protected disclosures. It is frequently reported in the public sector that independent reports into concerns raised by a whistleblower are kept from the public eye.
In 2008, my noble friend Lord Borrie tabled an amendment on this but the Government’s reasons for rejecting it were twofold: first, a fear of ambulance-chasing lawyers contacting the parties; and, secondly, untested allegations being in the public domain. As a compromise, the Government brought in a system of regulator referral, where claimants can elect to send their claim forms to a person prescribed under PIDA—for example, systems regulators such as the FSA or the CQC. This is inconsistent with the principle of open justice and is not ideal as it puts pressure on whistleblowers to withhold consent, or some individuals will use their consent as a bargaining chip in settlement negotiations. Where consent is withheld, the underlying concern will be hidden from public view.
There is no uniform way for regulators to deal with such concerns and some regulators do not even know of this provision. It is strange that a law which is all about promoting transparency and accountability in the workplace should have its use shrouded in secrecy. Given the proportion of PIDA claims which are settled, it is entirely probable that a public concern may lie unaddressed, buried in a claim and shielded from view.
The amendment should be coupled with the blacklisting provisions, thereby limiting negative consequences for individual workers. It is important that there should be open justice in whistleblowing claims and that it should be brought into line with the Civil Procedure Rules. I beg to move.
Lord Borrie
I hope the Government are positive about this amendment. Secret justice is inherently evil unless there is some very strong argument the other way such as public security. When this is not the case, the Government will have a very difficult job convincing us that things are all right as they are.
Lord Marland
I have a nasty feeling that I am going to disappoint the noble Lord, Lord Borrie, who of course speaks with a wealth of experience. I have observed tribunals over time, and what I have seen is that when names are published and the press get hold of it, they often put an imbalance into the equation. I believe that giving advance warning of the case means prejudice may build up against either side. This can often be seen in press reports on tribunal cases and I think that is unfair. Of the tribunals I have observed—although not been involved in—that have been reported in the press, there have been many times where I would say at the end of the day the press have taken one side or the other and not given a balanced view—and that is what becomes of a public airing.
No one is saying for a moment that this process should not be transparent but people are saying that there should be fairness. This applies to both parties. We accept the transparency issue but I am afraid that, on this basis and from the experience that we have had, and my experience in particular, I do not think it is fair on either party. As such, it is not an amendment that particularly finds favour despite the fact that we seem to have agreed on most things today and will doubtless continue to do so. In the spirit of Yuletide, I hope the noble Lord will agree—I am looking at his face now because he is playing poker—to withdraw his amendment.
Lord Young of Norwood Green
I cannot say we are particularly happy that Christmas has ended early with the Minister’s response. The best I can say is that we will take this one away and reserve the right to return to it on Report. I beg leave to withdraw.
Baroness Turner of Camden
“(aa) where the claimant, on the advice of the Judge, withdraws a part or the whole of the claim, any deposit shall be repaid”
Baroness Turner of Camden
My Lords, this is a fairly simple and straightforward issue. Currently, when a judge decides that a claim has little reasonable prospect of success he can order a claimant to pay a deposit of up to £1,000 as a condition of their claim proceeding. However, judges can issue dispute orders only when they consider that an entire claim is weak. Clause 16 would enable judges to impose a deposit where they consider that just part of a claim is weak. However, the TUC, to which I am indebted for this briefing, believes that employment tribunals already have sufficient powers to deter weak and vexatious claims, and therefore that this measure is not necessary. The introduction of fees would mean that claimants would be required to pay significant sums in order to access an employment tribunal.
Rather than increasing the use of deposit orders, the Government should provide that where a claimant decides to withdraw a claim, or part of a claim, on the advice of judges, then the relevant fee that the man or woman has already paid should be returned. That seems quite fair to me and I hope, therefore, that the Government will be prepared to agree to this simple measure. If the claimant has already paid a deposit, takes the advice of a judge and withdraws, he should get his money back. That is quite a straightforward proposal and I hope the Minister will be prepared to accept it.
The Earl of Glasgow
I apologise for interjecting at this stage. My issue is a little bit different but, after a lot of consideration, I did not know where I was going to put it. I consider it a very serious omission regarding the tribunal situation.
Two years ago I knew relatively little about employment law. As a small employer, however, I have recently—and for the first time in 35 years—been taken to a tribunal by one of my employees. This particular issue has been going on now for more than two years. I believe passionately—and this is one of the reasons for this Bill—that we should try to make these tribunals as unnecessary as we possibly can. In my case it is completely or very nearly unnecessary and I think that it is also a very great waste of money.
The Government’s intention is to try to make tribunals as unnecessary as possible. I am very much in favour of having ACAS involved and giving it the extra strength—which is part of the Bill already—to try to make them unnecessary. However, there is an elephant in the room which no one has addressed and which has purposely not been put into the Bill, and that is the question of discrimination.
One of the main reasons why claimants go to a tribunal when they could easily have settled at an earlier stage is that if they can prove discrimination, they can get something like 10 times as much compensation as they would have got if they had settled in the first place. To give an example again from my own case, the lady who I employed was laid off at four months. She thought that it was unfair that she was laid off and thought that someone else should have been laid off instead of her. She came with her union representative and talked to me about it. I made a deal with the union representative that I was going to pay her £1,500 and that was going to be the end of it.
About two or three days later she came back again and said that she was not satisfied with what her union representative had recommended and that she was going to go to a tribunal. It became clear to me that the reason why she was going to a tribunal was that she thought that she could prove discrimination. Discrimination in this case was that she thought that someone other than her should have been laid off and also that, as she had a disabled son, we were not taking enough consideration of her disabled son. This case is still carrying on. It has been over two years and we still have not resolved it. It strikes me as unbelievably wasteful that this thing should not have been settled a long time ago. It is because of this discrimination issue.
I think that the Government and the Minister have decided that they do not want to involve discrimination in this because discrimination is governed by European law. I do not think that we are ever going to be able to cut down drastically the number of people going to a tribunal unless we address this issue of discrimination. A lot of lawyers, or the representatives of some of these claimants, are deciding to go to a tribunal because they think that they are going to get a lot more money because of discrimination. I ask the Minister to consider including at a later stage at least some reference to address this problem of discrimination.
Lord Marland
I am grateful to the noble Earl for giving me advance warning that he was going to raise that issue, and I am happy to deal with it in a moment. First, however, I must deal with the point raised by the noble Baroness, Lady Turner.
I think that there is some misunderstanding here. It is already the case that where a deposit is paid it is always refunded to the paying party unless a cost order is made by a judge. That is the case. Refunds happen whether a case continues to judgment or is withdrawn part way through the proceedings, so there is always the case for recourse. In fact, the Government have accepted Mr Justice Underhill’s recommendations that there should be much more flexibility in the deposit-paying order regime. I hope that the noble Baroness is content that that deals with that issue. I do not know how this misunderstanding happened, but we can certainly talk further about it afterwards.
We recognise that there has been a trend for discrimination claims to obtain large awards. They are trailed as discrimination claims because people think they can get the sympathy of the judge in advance or during the case, because discrimination is not an attractive thing to be accused of—or to suffer from, much more to the point. Therefore, we as a Government are committed, working with the employment tribunals, case-by-case, to see how we can improve that. Obviously, as the noble Earl says, if we follow the procedure of going to ACAS first—and of course ACAS has many more resources and greater teeth, as applies to various earlier amendments—we can deal with this much more vigorously and much more fairly, as the noble Earl rightly seeks. I am happy to discuss the matter with the noble Earl later, as are my officials, but, on the basis of what I have said to the noble Baroness, I hope that she will withdraw her amendment.
Lord Young of Norwood Green
Thinking that I was back in my TUC days, I was almost tempted to make a point of order. The noble Earl was stretching what you can do with an amendment by introducing something that had nothing whatever to do with it. If I look back, I suppose that I have been guilty of that transgression occasionally, but I think that that was taking it a bit too far, as it was for the Minister to respond to it. I say that seriously because, if we are to have a debate about discrimination, let us have a proper debate about it, for which we are prepared. We, too, could evidence all sorts of things.
Lord Marland
The noble Earl gave me notice that at some point he would be raising this issue. We have debated a whole range of issues and I do not think that we need to be unfair and limit any particular issue. I was happy to take the question. I have dealt with it and we will continue to deal with it. I totally agree that it is not in the context of the amendment, but we have had a few things that have not been in the context of amendments. We are a charitable group here. The noble Lord is playing poker again now but he will be in a charitable mood as it is Christmas, and that is why I was happy to deal with the amendment.
Lord Young of Norwood Green
I will not pursue this further but I maintain my point. We roam far and wide in dealing with amendments but, if we want to do something as serious as that, it ought to be on the basis of either an amendment or a debate. I say no more than that. I leave it to my noble friend Lady Turner to deal with her amendment.
Baroness Turner of Camden
I thank everyone who contributed to this small debate. Of course, it is not about discrimination at all. It is quite irrelevant to introduce discrimination in a debate on an amendment which simply says that, if someone pays the deposit and does not proceed with the case because they accept the advice of a judge, they ought to get their money back. It is as simple as that. It has nothing to do with discrimination at all. I see that the noble Earl accepts that.
The Earl of Glasgow
I apologise for bringing it up. I tried two or three times to think of a place where I could bring it in as I thought it was important to do so. As we are getting to the end of the tribunal issues, I thought it was the only place where I could do it. I apologise.
Baroness Turner of Camden
Certainly. As my noble friend said, if we want to have a discussion about discrimination, there will be the opportunity to do so during the passage of the Bill, in which case we would want to prepare for it and ensure that the views of this side of the House were properly considered. The amendment is not about discrimination, as I think the Minister accepts. I am interested to hear what he has to say and I shall of course read it with great interest. In the mean time, I beg leave to withdraw the amendment.
Lord Gardiner of Kimble
My Lords, this may be a convenient moment for the Committee to adjourn until Wednesday at 3.45 pm.