TO:GMB WESTMINSTER PARLIAMENTARY GROUP
22November 2001
DearColleague
EMPLOYMENTBILL
Iam writing to bring to your attention our grave concerns about some of theproposed measures contained in the new Employment Bill.
Youmay recall that the Leggatt Report on Tribunals, delivered to the Government inMarch but not published until August, argued that it was undesirable to turnEmployment Tribunals into courts. ThatReport warned against more changes in the costs rules, reasserted the originalintention of easy access, openness and informality, and advocated thatEmployment Tribunals be included in a unified Tribunal system.
Inthe light of these recommendations, it is extremely disappointing that theGovernment has already implemented harsher costs rules and is now proceedingwith the Bill. The Bill will pre-emptdecisions on the Leggatt Report, push Employment Tribunals further down theroad to an adversarial court system and cause very considerable confusion inthe workplace.
Weare especially worried about the following provisions of the Bill.
Clause 22(2) Compensation forpreparation time
Clause 22(2) allowsregulations permitting tribunals to order payment by one party in respect ofthe time the other party spent preparing their case. The Explanatory Notes say that tribunals will apply rules settingout guidelines of an unspecified nature on how to assess the award.
Despiteopposition, the Government is going ahead with the plan to make IT1 and IT3forms mandatory. So applications byletter will no longer be possible.Again, this disregards the Leggatt recommendation for access totribunals to be made easier. TheExplanatory Notes confirm that the forms will require more information from theparties.
Weare seeking reassurance that forms will be easy to obtain; that there will beprotection for literacy & language difficulties; and that the forms willnot become pleadings in the full sense.This last point will be very important where the applicant or anon-lawyer representative completes the IT1.
Inorder to eliminate "weak cases" from the tribunal system, this clauseempowers tribunals to strike out a claim at a pre-hearing review (where noevidence is given) as an addition to the existing powers of tribunals to strikeout claims that are misconceived and have no real prospect of success.
Theseclauses introduce minimum disciplinary and grievance procedural standards intoall contracts of employment. Thosestandards fall well below common industrial practice and the ACAS Code ofPractice.
InSchedule 2, the "Modified standard in cases of gross misconduct justifyingsummary dismissal without notice" would apparently deny those accused ofgross misconduct the right to be heard before being dismissed, unless thatright is contained in the contract of employment. This will encourage employers to expand the scope of grossmisconduct contained in contracts of employment and disciplinary rules.
Clause 33 enables regulations preventing tribunalcomplaints before part or all of the relevant SDRP has been completed.
Thestatutory grievance procedure requires written grievances.
Weunderstand that regulations will require employees only to raise the grievance(presumably in writing) and need not attend a hearing or appeal under steps 2or 3 respectively. But this does notappear on the face of the Bill. In anyevent, this is poor comfort because under clause 31 compensation will bereduced if all three steps are not followed.
Furthermore,paragraph 22 of the Government Response to consultation on "Routes toResolution" says that applicants complaining of unfair constructivedismissal "will be expected to use the minimum grievance proceduralstandard". So it seems that theGovernment intends that if an employee triggers grievance step 1, they can goto a tribunal, but could suffer a loss in compensation.
Finally on this issue, the Government apparently intends toexempt employees who face "serious bullying".
Thisis the worst provision in the Bill, amounting to such a weakening of unfairdismissal law that it will offer next to no protection in many cases.
Clause34 makes it automatically unfair to dismiss in breach of SDRP.
Itis also unclear what is meant by "a procedure" in the proposed newsection 98A(2). Would this cover thelack of a reasonable investigation or of a fair hearing?
Ofcourse, this measure flies in the face of the Government's avowed intention tostrengthen compliance with disciplinary procedures. On the contrary, it will undermine the ACAS Code of Practice andremove an important pressure point on employers to comply with properprocedures. The Minister has alreadyrefused to review the "range of reasonable responses test" whichprevents Tribunals from overturning anything save the almost perverse decisionto dismiss. Now he plans to remove theone remaining factor that favours employees viz. the need for employers tofollow proper procedures.
TheGovernment has gone ahead with this proposal to widen the scope of compromiseagreements, without building in safeguards to prevent employers using them as aback door route to contracting out.
Onour reading of clause 39, an employer could make it a condition of employmentthat an employee signs a compromise agreement undertaking to refrain frominstituting tribunal proceedings. Theredoes not seem to be any "no detriment" protection for an employee whorefuses to sign a CA.
Compromiseagreements should be limited to where a complaint has been made, and tocircumstances that have arisen and of which the employee is already aware.
Ihope that you will take these concerns on board. We fear that Parts 2 and 3 of the Bill are so defective that theyshould be shelved pending the taking of decisions on the Leggatt Report.
Yourssincerely