Lord Katz (Lab)

My Lords, this has been a useful debate on Amendments 98 and 99, tabled by the noble Lord, Lord Palmer of Childs Hill, and the noble Baroness, Lady Fox of Buckley. On Amendment 98, the law already provides that when workers are invited to attend a disciplinary and grievance hearing, they are entitled to bring a companion who is either a fellow worker, an official employed by a trade union or a workplace trade union representative who the union has reasonably certified as having received training in acting as a worker’s companion at a disciplinary or grievance hearing. As we have heard, and perhaps in response to the critique by the noble Lord, Lord Ashcombe, employers can allow workers to be accompanied by a companion who does not fall within the above categories. Some workers may have a contractual right to be accompanied by persons other than those listed—for instance, a professional sports body, partner, spouse or legal representative. As my noble friend Lady O’Grady of Upper Holloway helpfully reminded us, the existing legislative provisions seek to keep disciplinary and grievance procedures internal to workplaces to better ensure that the heat is taken out of the situation and that they are used as conciliatory opportunities to resolve tensions and maintain a good employer-worker relationship. As my noble friend said, this could involve a workmate who knows the context of the situation, understands the employment —and probably both parties to the grievance—and can provide real insight to the situation and focused support. The inclusion of professional bodies, which may include legal representation in the legislation, may jeopardise the involved parties’ ability to engage in amicable conversation, with the concern that discussion may be significantly restrained as a result, with neither party willing to accept fault. The Government are rightly concerned that this will result in an increased likelihood of a failure to reach a suitable outcome for both the worker and employer. As my noble friend Lady O’Grady said, we want systems in place that are quicker, cheaper and more effective at reaching resolutions. However, this in turn, as part of the proposal, would increase the cost of hearings for both parties, as the processes and the meetings themselves become more protracted and reduce the chances of a mutually beneficial outcome. The involvement of legal representatives may be particularly costly for smaller businesses, which may not have legal resources readily available—we have heard much already today, if not in previous debates in Committee and on Report, about that issue. Additionally, the introduction of legal expertise at these hearings may limit the ability of ACAS to mediate an ongoing dispute, as legal arguments may already have been heard during an internal hearing. It is worth noting that an amicable solution between the parties is the fastest way to deliver justice and the amendment may have the inadvertent effect of increasing the likelihood of tribunal claims being made, although of course that is not its intention. Of course I understand that certain organisations, including those that provide legal services, would benefit. However, as previously noted when discussing similar amendments, an employer already has the existing ability to nominate an organisation to accompany their workers if they set this out in the workers’ terms and conditions. This is a solution in search of a problem. ACAS estimates that there are 1.7 million formal disciplinary cases in UK organisations each year. It is rare that I ever say this, let alone from the Dispatch Box, but I agree with the noble Baroness, Lady Fox of Buckley, in that the approach taken by the noble Lord, Lord Palmer, in his amendment would be unduly cumbersome. It would complicate a law that has been in place for over 20 years and, if accepted, will require that the employer checks secondary legislation for every case to see who is a responsible body and whether the individual has been certified as having been trained. These are additional administrative burdens that the Government are keen to avoid. Indeed, the Opposition Front Bench has been keen to point out when they see fault in our proposals in other places—erroneously, I should add. On Amendment 99, tabled by the noble Baroness, Lady Fox of Buckley, the Government believe that strong trade unions are essential for tackling insecurity, inequality, discrimination, enforcement and low pay. If Amendment 98 was a solution in search of a problem, Amendment 99 is an opportunity for the noble Baroness, Lady Fox, to bash a problem, in her view—namely, trade unions. I am a former trade union official. I have also worked in a number of private sector roles as a manager. Unions are a good part of our industrial landscape, as we have heard across the House. I join with others across the House in saying that it would better if more people were members of trade unions. They are far from perfect, but although the cases that the noble Baroness raises undeniably raise issues about the trade unions she talked about, they do not undermine the day-to-day work of many trade unions and, in particular, of trade union reps. In the workplace, day in, day out and across the country, they work with employees and businesses to make workplaces safer, to ensure that employees are properly educated and skilled, and to help those employees access their rights at work, which we deem fair and necessary. Trade unions have an important role to play in supporting workers during the process of a disciplinary or grievance hearing. Union officials allowed to accompany a worker, as prescribed in the existing framework, must be certified as having received training in acting as a worker’s companion at disciplinary and grievance hearings. By opening this role up to anyone the worker chooses, the amendment risks introducing individuals into the disciplinary and grievance hearings process who are not familiar with the workplace in question or, indeed, with the employment rights framework. As I noted when speaking to the previous amendment, this is again likely to lead to a reduced likelihood of successful mediation of these disputes. The role of the recognised union representative allows the relationship between the employer and representative to be developed over time, thus increasing the likelihood of an amicable solution that does not go to a full legal process. This amendment could lead to the involvement of a family member or friend in disciplinary grievance proceedings, which may, in practice, cause more problems than solutions, given the sensitive nature of such a personal relationship. In closing, it is unclear to the Government where the demand for expanding this right is coming from and which workplaces specifically would benefit. In the consultations we have undertaken in government and prior to being elected, with both businesses and trade unions, the need to expand this right has not featured from either side in the workplace.