Henry Smith
Main Page: Henry Smith (Conservative - Crawley)
Mr Nuttall
My hon. Friend is right. My concern is that if this legislation were allowed to proceed in this form, that sort of slipshod behaviour might be allowed to continue in future. I submit that one reason why a line of cases has been brought before the courts is that employers have upheld the will of this House and have sought to secure full compliance with what was originally intended. I stress again the importance of what was intended not by the 1992 Act but by the Employment Relations Act 1999, which was introduced by the Labour Government.
In his opening remarks, the hon. Member for Hayes and Harlington said—I agree with him—that we begin to understand the full effect of this proposal only by looking at the legal framework in which employees and employers operate. The starting point is the contract of employment itself. Under such a contract one individual, the employee, provides his or her services or labour for the benefit of another, the employer. In return, they are paid for the labour they provide. The work is manual labour in some cases or it could be “white collar” work, as we call it, or it could be providing expertise on a particular subject. It follows that withdrawal of that labour is a very serious matter and, unsurprisingly, the law attaches serious consequences if someone breaches that agreement, as it does with any other breach of contract,.
Henry Smith (Crawley) (Con)
Is it not the case that elections are held by other legal entities, such as public limited companies or national organisations, and are sometimes used for trustees and so forth? With those other legal entities, is it not the case that complete compliance with the law is necessary, rather than “substantial compliance”—whatever that vague term means legally?
Mr Nuttall
My hon. Friend is absolutely right. In most areas of the law, people are quite rightly expected to follow it to the letter. In the particular area of trade union law, the possibility of human error coming into the process is taken care of, I submit, by the provisions of section 232B of the 1992 Act, which specifically allows for minor, small, accidental failures to be completely “disregarded”. That raises the question of why on earth this Bill is being introduced at all, particularly following the decision of the Court of Appeal in the British Airways plc v. Unite case earlier this year. I accept that it was only a majority judgment, but it was nevertheless a judgment of the Court of Appeal, so it should be given time to bed down, as it put forward a fairly clear view of the law.
Mr Nuttall
My hon. Friend makes a valid point. One of the problems with the interpretation of the clause relates to what is accidental and what is not. I submit that we are going to have exactly the same problem if we change the law and introduce the concept of substantial compliance. We are not any further forward than we were.
Henry Smith
Does my hon. Friend think it in order that the House should legislate to allow for incompetence, whether accidental or deliberate?
Mr Nuttall
I thank my hon. Friend for his intervention. I certainly do not think that it is appropriate that the House should legislate for incompetence, and effectively that is what this Bill is leading towards. It is effectively saying that there could be 70%, 60% or 80% compliance with the law and that would be okay. I might be wrong, but I am of the opinion that members of the public outside this House rightly expect a trade union, or indeed, as my hon. Friend the Member for North West Leicestershire said, any other group, to comply with the law to a much higher degree.
I think the degree of compliance should be 98% or 99%, which was the intention in 1999 when the then Labour Government introduced section 232B providing for small accidental failure to be disregarded. The new provision refers to
“the failure…or the failures taken together”,
so it mirrors the current situation in that duplicate failures would be permitted. It also states that
“there has been substantial compliance with the provision or provisions in question”
and
“on a scale which is unlikely to affect (in the case of a ballot) the result of the ballot or…a reasonable recipient’s understanding of the effect of the notice”.
The problem is that that provision takes us no further forward. Employers are just as likely to say, “Well, has there been substantial compliance or not?” It is not clear, so we are no better off than if we were to ask whether there had been a minor or accidental failure. Therefore, this provision will prove to be a treasure trove for lawyers.
Mr Nuttall
My hon. Friend is right. One of the defects of the Bill is that there is no definition of what constitutes substantial compliance under the law; we have no idea at all about that.
The current law is particularly detailed, however. For example, section 226A of the 1992 Act requires that a union must give notice
“not later than the seventh day before the opening day of the ballot”
to
“every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.”
All sorts of questions arise, such as what happens if someone is set to become an employee but is not working on the day? They will never have a chance to vote; are they to be included or not? I do not want to address all these questions today. I simply put that one as an example of the problems that will arise if the Bill is enacted.
Henry Smith
Does my hon. Friend agree that that is precisely why the 1999 and 2004 legislation introduced by the previous Government—to whom I do not give credit for very much—did not allow for substantial compliance? The point my hon. Friend makes illustrates precisely why they saw the sense in not allowing for that.
Mr Nuttall
My hon. Friend hits the nail on the head. Back in 1999 there was a new Labour Government with a substantial parliamentary majority, and they could very easily have introduced a measure along the lines of the Bill, but they did not do so because it is a bit of a dog’s breakfast. It is not clear what substantial compliance means; there is no definition in the Bill and our attention has not been drawn to any previous case law or to any academic analysis of what would or would not constitute substantial compliance.