Enterprise and Regulatory Reform Bill
Debate between Baroness Dean of Thornton-le-Fylde and Lord Marland
Lord Marland
I note the legal brain of the noble Lord, Lord Phillips of Sudbury, and I am grateful to him for pointing out some of the weaknesses in this amendment. I was also struck by the words of my noble friend Lord Deben. This is a mild change. Listening to the Benches opposite, you would think that we had torn up the law. Scenes from “Oliver!” kept coming back to me while noble Lords were speaking. We are not going to make progress if on the mildest proposal we start bandying words like “Beecroft” and warn of terrible things. All this is doing is mildly redressing the balance that exists, which noble Lords opposite may not agree with because they have taken a position on it. People on this side agree with it. I am grateful to the noble Baroness, Lady Greengross, because she made a very good point at Second Reading that we have to get the balance right so that employers are given the confidence to start employing again. That is all we are trying to do here. We are not seeking to tear up the rulebook, as has been suggested. Indeed, my noble friend Lord Brooke of Sutton Mandeville came right to the point: the claimant has to have legal advice before agreeing a settlement. Nothing will change that and we are not tearing it away; he has to have legal advice. So far as we are concerned, he can get it from any suitable or qualified individual and, obviously, even from trade unions.
It is fundamental that we ensure the safeguards for both the employer and the employee. It is fundamental that an offer is made and that the claimant is properly guided through the process and understands its extent. But as the noble Lord, Lord Brooke, pointed out, the claimant is the only person who is legally able to take advice because the employer is not. On that basis, something of a mountain has been made out of a molehill and I hope the noble Lord will withdraw his amendment.
The noble Baroness, Lady Brinton, again turned to the subject of discrimination. I am told by my officials— I am happy to amplify if my response now is not adequate—that a tribunal would take into account a discussion of the settlement for discrimination element of a claim, but would disregard that information when deciding the unfair dismissal element. I hope that that clarifies the point, but if not, of course I and my officials are at the disposal of the noble Baroness at any time.
Baroness Dean of Thornton-le-Fylde
My Lords, having had some experience of industrial negotiations, I find it unacceptable for the Minister to imply that this is a very mild clause. This is the only part of the Bill where the confidentiality clause appears. Perhaps it requires a clause in its own right, which is something that my colleagues are seeking. New Section 111A(2) refers to,
“any offer made or discussions held”.
Anyone who has been involved in industrial relations knows that in 99 out of 100 cases, an employer will have taken legal advice before speaking to an employee and implying that that employee is not wanted in the company any longer. This assumes that the employer has not taken advice before calling in the employee.
Let us imagination the situation here. With all due respect, we are talking about the workplace, not lawyers’ offices. We are talking about someone at work who is asked to go and see the employer. When they get into the employer’s office, the employer makes them an offer. It might be the first time that the employee has any inkling that the employer wants them out of the company and the psychological impact of that can be substantial. We are talking about someone’s job and livelihood, and getting another job may be quite difficult. This is not a mild amendment. It is trying to keep that balance. It is more than likely that an employer will have taken legal advice and will probably have even got the lawyer to write the letter suggesting that the employee leave the company. If the employee wants to have a representative in that meeting, they should. I think this is a mild amendment; I do not think it is a mild clause as it currently stands.