Enterprise and Regulatory Reform Bill

Lord Phillips of Sudbury Excerpts

Wednesday 5th December 2012 Grand Committee

[Lord Deben]

My Lords, I declare an interest as an employer. I make the point that these discussions are much better done on the relevance of the facts and the nature of the argument. I really could not listen to the comments about Mr Beecroft without suggesting that the idea that we should discuss this as if it were “Beecroft-lite”—I think that was the phrase—rather than as a proposition to be properly discussed for its nature is rather a sad thing. If people are talking about “Beecroft-lite”, I must not be moving in the right circles; I have heard no one use such a phrase.

The real issue is: do we have the right balance at the moment? Is it sensible or not to allow employers, in circumstances where this seems to be a better answer, to offer, not impose, an arrangement that includes a payment of this sum? It seems a perfectly reasonable suggestion, and we should not be arguing about it because someone we do not like did not suggest it but suggested something else, and now a Government we do not like are actually bringing forward something different and it might be rather close to that. Frankly, that is not a very good argument. We have to have an argument about the facts; and the facts seem to be that this is a moderate change that would in many circumstances be very convenient for both workers and employers.

[Lord Phillips of Sudbury]

My Lords, I hesitate to intervene, but I read Amendment 20G as having a different impact from the one that its mover has suggested. It may be that my legal wits are failing me, but surely new Section 111A(2), which it intends to amend, merely defines what the pre-termination negotiations are in subsection 12(1). It states that,

“‘pre-determination negotiations’ means any offer made or discussions held … with a view to”,

there being agreement between the employer and the employee. I do not see where the amendment comes into that. It is irrelevant in terms of who may assist the employee in arriving at that agreement, be it a trade union official, a workplace representative or a legal representative. The way that the amendment has been moved is not consistent with its potential impact on the clause concerned.

[Baroness Brinton]

My Lords, I want to make it clear that I do not consider Clause 12 to be “Beecroft-lite”, whether that term is acceptable or not to my noble friend. I hope that there might be some information from the Minister to confirm that, but that was certainly not how I read it.

I want to raise a particular question and I apologise for not having given notice of it; I am more than happy to receive a written answer. I understand that an offer of a settlement agreement could not be used as evidence in an unfair dismissal claim but could be used as evidence in a discrimination claim. It is not unheard of at tribunals to hear both at the same time; therefore, which would take priority?

--- Later in debate ---

[Lord Marland]

Of course we all have sympathy with this issue, but we are seeking to ensure that the balance is rebalanced so that the employer has some protection and unfair dismissal is not one-sided, as we and the bulk of employers believe it currently is. We are going over quite a lot of ground that has already been covered.

In response to the noble Baroness, Lady Dean, there is a very clear safeguard for employees. There is a very clear procedure that protects them. She made out that a poor person comes into the room and is told for the first time in his or her life that he or she is going to be put out of work, or that there was potential for that, because you cannot do it the first time. It is three strikes, as the Committee knows. The fact of the matter is that often there is justification. The employee is no longer fulfilling their role, and the employer has come to the conclusion that they cannot carry on fulfilling the task that they were employed to carry out. We have to understand that there has to a balance or the employer is not going to carry on employing.

I have been a significant employer and have seen huge—and correct—changes in the balance in favour of the employee and that there has not been indiscriminate behaviour from the employer. I note that the noble Baroness, Lady Donaghy, was more concerned, not about the big companies to which the noble Baroness, Lady Dean, referred—big companies that can prepare the way and will have had all the legal advice before they call that employee in—but the smaller companies that do not have that advice. They are the ones which do not consult and do not handle the whole programme properly. They are the ones we are all concerned about. Indeed, they themselves should be concerned because they have not prepared in the decent and proper way employers should in handling this very important issue in someone’s livelihood.

As such, we must get the balance right. We must understand that we have to be balanced in our rhetoric and that there are two sides to this, as fundamentally we all do, because all of us in this Room want people to employ more people, do it decently and create livelihoods. All we are trying to do here is establish a slightly better balance. With that understanding I hope the noble Lord will withdraw his amendment.

[Lord Phillips of Sudbury]

Am I not right in thinking that the proposal to add the words “or constructively” is superfluous as an unfair dismissal includes a constructive dismissal?

[Lord Marland]

The noble Lord is correct.