Monday, 4 February 2008.
The Committee met at half-past three.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
Employment Bill [HL]
Good afternoon. Before we begin, if there is a Division in the Chamber—which there may well be—the Committee will adjourn for 10 minutes. I will indicate that a noble Lord should stop speaking, in mid-stream if necessary.
1: Before Clause 1, insert the following new Clause—
“ACAS: role in negotiation of procedural agreements
Section 209 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (general duty to promote improvement in industrial relations) is amended by inserting at the end “and to encourage the negotiation of agreements between employers and independent trade unions on procedures for the resolution of disputes at work”.”
The noble Baroness said: The amendment in my name and that of my noble friends is about the ACAS role in the negotiation of procedural agreements. Emphasis has been placed in discussion of this Bill on the desirability of negotiating settlements of disputes actually at the workplace. No one would disagree with this as a desirable objective, provided that the arrangements are fair and seen to be so by those participating.
As a former trade union official, I believe that such arrangements can only be effective when they are the result of negotiations between the employer and an independent trade union. However, not every employer is able to come to such agreements without outside help. This is where ACAS has an important—indeed, essential—role. It is surely a function of ACAS to endeavour to help those who need this assistance.
The Government may well say that this sort of function is readily understood and already accepted. However, it is important that it should be written into legislation as a function that ACAS simply must perform. It is not sufficient for it to be said that this is something to which ACAS must have regard, as indicated in previous legislation; it is a basic requirement. Much of this Employment Bill is about how workplace disputes are handled. This is therefore a key requirement, and should be in the Bill.
Our wording acknowledges the role of independent trade unions in ensuring that procedural arrangements are in place and handled appropriately, and that cover is given to the members represented by them. This is an important requirement. I hope that the Government will be prepared to accept it. I beg to move.
Briefly, we will obviously be discussing ACAS later on when we come to the code of practice. At this point, I thank the noble Lord, Lord Bach, for finally getting a letter to us dealing with some of the questions raised at Second Reading; it would be useful to mention this on the first amendment. I note that the noble Lord kindly sent his letter to my noble friend Lady Wilcox on 31 January; I received my copy this morning. Sadly, my noble friend has not yet received her copy, but that does not matter because she has seen mine. No doubt the noble Lord will want to chase that up in due course.
Again, we will be dealing with this when we get to the code. The noble Lord, Lord Bach, said that he would do his utmost to make the draft ACAS code available to the Committee. I was intrigued that he used those words because, having said that he would do his utmost, he then attached it to the end of the letter. It might have been easier if he actually said in the letter that he had included it, because I thought that it was still not there.
I am interested in what the noble Baroness says about her amendment. It seems to expand the role of ACAS somewhat unnecessarily. I do not see why we cannot leave things as they are; leaving it to the employers and employees to negotiate what they wish in terms of providing the appropriate procedures for the resolution of disputes at work.
I am sure that I can associate everyone on these Benches with my thanks to my noble friend Lord Bach for providing the draft of the ACAS disciplinary and grievance code. As regards this amendment, at Second Reading, the Minister said that,
“around 75 per cent of claims made to an employment tribunal are resolved before reaching a hearing—a substantial portion with the involvement of ACAS”.—[Official Report, 7/1/08; col. 637.]
I take it to be common ground on this Bill that disputes at work are best solved by procedures at the point of work, informally and very often with the help of ACAS. It seems quite natural therefore to put up the status of that procedure to a central function of ACAS rather than a minor one which the legislation at the moment suggests. I therefore support the amendment.
I totally accept that it is a basic requirement and, as such, it is well understood. This is not the sort of thing that I feel I have to oppose, but I do not really support it. I do not think that it is necessary. I do not see why we cannot leave things as they are, because ACAS is doing a splendid job. It knows what to do and I do not think that it needs any help from us. I rather like the way in which my noble friend Lord Henley put it. I would not always support him because he happened to say something, but I do on this occasion think that he got it right.
In order to not have to do it every time I get up, I declare a previous interest as president of one of the unions that have formed Unite—the ASTMS—and then the MSF. I, too, should like to thank my noble friend Lord Bach for providing the information. Like others, I got it this morning and I shall go through it in more detail when we are proceeding. I am very pleased to see the Minister with us, taking time off from his admirable job. Nearly every time I pick up a newspaper, I read where he is selling things for us.
In this amendment, we are trying to ensure that there is no degrading of the role of ACAS and that what it does is central. Members say that they are looking at what we are doing, not that they are opposed to it. So I hope that what has been put forward will be pretty unanimous. We are not trying to change anything, but want to ensure that ACAS still has a central role to play in any negotiation that takes place. It is in the interests of all of us, whichever side we are looking from, to get a better Bill and a better understanding. The role of ACAS is not in any way diminished. I am very pleased to say that I am here to support the amendment standing in my name, along with my colleagues.
I would like to ask a couple of questions. I thought that the remark by the noble Lord, Lord Hoyle, that he did not want to see ACAS degraded was very interesting because there was no suggestion of that—the noble Baroness, Lady Turner, clearly spoke about making ACAS stronger. Therefore, I would like clarification on that point: what do the Government think that this amendment would do?
The noble Lord, Lord Wedderburn, said that many cases are now settled, which is quite true. The new pilot scheme that has been in action, where the employment judge has been mediating in cases, has been very effective. Indeed, those who have acted in that role have been impressed by the success of the scheme. Would this amendment in any way cut across that, because this is a good system that is working at the moment?
First, I assure my noble friend Lord Hoyle that I am delighted to be here today to carry on the work that we started in the House. I am off again banging the drum for Britain on Friday, and all next week I shall be in six different states of the United States selling the stuff that British companies sell all over the world.
It will come as no surprise to hear that I oppose the amendment. I assure the noble Baroness, Lady Gardner, in direct response to her question, that the amendment would serve to oblige ACAS to promote agreements between an independent trade union and an employer even where it would not be appropriate so to do. It would also restrict the ability of ACAS to conclude voluntary union recognition agreements.
The current operational policy of ACAS implements its general duty,
“to promote the improvement of industrial relations”.
Where asked for advice or help in establishing or revising procedures for the resolution of disputes at work, ACAS encourages employers to involve their employees and their representatives fully, particularly, where appropriate, any recognised independent trade union.
As well as providing that general advice, ACAS offers to chair joint working parties of management and employee representatives to draw up procedures and guidance, and offers to undertake joint training of management and employee representatives in the fair and effective operation of such procedures. In my former life as director-general of the CBI, I was involved in the work of ACAS in many ways and I share what I think those on all sides of the Committee feel, which is that we should say “well done” for the good work that is done. I saw it at first hand and it was excellent.
ACAS stresses to both parties its experience. Without such involvement of employees and their representatives, procedures are likely to be regarded with suspicion by those employees and therefore in danger of not operating effectively to prevent or resolve disputes at work. I agree with my noble friends when they say that the best way to resolve a dispute is at the workplace on the day or very shortly thereafter. There will of course be circumstances in which promoting negotiations between an employer and an independent trade union will not be appropriate. Those could include, for example, when no employee belongs to a union or where some other organisation is trusted by staff and employers to carry out such discussions. Requiring ACAS to promote negotiations between an employer and an independent trade union, which this amendment would do, would reduce ACAS’s flexibility to offer help based on the particular characteristics of an individual dispute in an individual workplace. It would take the individualism and therefore the application out of ACAS’s present remit.
In addition, where an employer does not recognise the trade union, the negotiation of agreements such as those proposed in the amendment could be viewed as a limited form of recognition of the trade union by the employer. That would be in direct conflict with the factual happening on the ground. For ACAS to have a specific duty to promote such agreements could put it in the position of being seen to encourage the recognition of trade unions in organisations where they currently do not exist. That is not the role of ACAS, nor would ACAS want that role. We believe that this might make it even more difficult for ACAS to help both parties in dispute to conclude a voluntary recognition agreement. It would be unhelpful for ACAS to be seen as partisan in such discussions. I remind noble Lords that in 2006-07, ACAS conciliated in 147 such disputes and provided in-depth advice in a further 22. I hope that in the light of what I have said the noble Baroness will withdraw her amendment.
I thank the Minister for that response, and I thank my noble friends who participated in this debate. I am sorry that the Minister feels unable to accept the amendment. I was aiming to ensure that ACAS had a proactive role in industrial relations; in other words, that ACAS would participate actively to ensure that industrial disputes could be properly handled at the workplace with appropriate procedures. I shall look carefully at what the Minister said in response. I do not agree with some of it, and we shall have to consider whether we wish to proceed further with this issue. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2: Before Clause 1, insert the following new Clause—
“Employment tribunals etc: role of lay members
Subject to section 4, nothing in this Act or in the Tribunals, Courts and Enforcement Act 2007 (c. 15) (other than paragraph 42 of Schedule 8 to that Act inserting a new section 7B (mediation) into the Employment Tribunals Act 1996 (c. 17)) shall affect the role and functions of the lay members appointed to—
(a) an employment tribunal as “other members”; or(b) the Employment Appeal Tribunal as “appointed members”,under the Employment Tribunals Act 1996 (c. 17).”
The noble Lord said: In moving Amendment No. 2, I shall speak also to Amendment No. 5. It might have been better if they had been coalesced into one amendment, but circumstances into which I shall not bother to go prevented that. These amendments are concerned with the essential framework of employment tribunals. Since a Member of the Committee said to me that he did not see why I was moving such amendments here, I shall explain at what they are directed. Noble Lords will see that Amendment No. 2 aims to preserve the role and functions of lay members of employment tribunals, with the exception of a matter that arises from the Tribunals, Courts and Enforcement Acts 2007, to which we will come in Amendment No. 16. Amendment No. 5 states that nothing in that Act or the Bill shall affect the relationship between the legal chairman and the lay members, and especially their equal status in the work of the tribunal. I emphasise the equal status of the three members of an employment tribunal.
Employment tribunals date from the 1960s. In 1967, they had one major jurisdiction: redundancies and redundancy pay. Now, if noble Lords look at page 3 of the Bill, they will see a vast list of jurisdictions in which the tribunals work. We must realise that age discrimination cases have yet to spill over in their many floods to the tribunals—we will see that in the next year when we see what the European Court of Justice makes of the real meaning of age discrimination—and the logjam of equal pay cases that has built up so high will also perhaps come to the tribunals. It is said that the work of the tribunals has become more complex and some would say it has become more legalistic, whether in a good or bad sense. That is not the fault of the tribunals, but of Parliament which requires them to cope with this new list of jurisdictions. They were and are, with the Employment Appeals Tribunal, the final arbiters on employees’ rights and a central part of employment law and practice. The Ministry of Labour’s far-sighted evidence to the Donovan Commission in 1967 suggested what was then thought to be rather a radical thought—that the tribunals, then known as industrial tribunals, would be a potential nucleus of labour courts in Great Britain for individual disputes between employer and employees. And so it has turned out. The Donovan Commission’s Royal Commission report in 1968 suggested that they should be given such a function with a tripartite status, which gives them a very special character. The Donovan Commission report said that they should be easy of access and less formal than ordinary courts and close to the realities of employment and its relationships.
Employers, especially large ones with modernised systems of disputes procedures that they have negotiated at work, have accepted the place of tribunals over 40 years or more, even though some others—mainly small employers—have always disliked their existence, as far as one can see. This is common ground: if one can solve a dispute at the place of work without going to a tribunal, that is of course much better. The ACAS code, for which we are all grateful to see a draft, points in that direction.
I declare an interest, as in a formal and practical sense I have practised before tribunals—the Employment Appeals Tribunal—and appellate courts from them. I have also come close to much of the research exercise that has preceded the many statutory refinements and amendments to their work.
There is a widespread concern that the essential character and framework of the tribunals is coming under pressure to change. Clause 4 is a small illustration of the change but, if it were alone, one would not have a great deal of concern about it. The clause contains the fast-track procedure in which the chairman sits alone; we have amendments to its wording and certain concerns about its meaning, but Clause 4 of this Bill is not the only matter that causes concern. Much of the problem comes from a different department, which does not inherit the characteristics that the Department for Business Enterprise and Regulatory Reform inherits from previous ministries in dealing with employment tribunals. The other arm of the pincer, as it were, comes in the form of pressures from the Ministry of Justice, which is inhibited in the Tribunals, Courts and Enforcement Act 2007—an Act that is famous for its legal thicket of 23 schedules of mass prose. It comes, too, from the Ministry of Justice’s 2008 paper entitled Transforming Tribunals.
To the Ministry of Justice, any tribunal can be discussed under the same heading. Its documents show that it is prepared to discuss mental health tribunals, taxation tribunals, land tribunals, asylum and immigration tribunals, employment tribunals—and anything else that happens to have the right semantic title. Of course, all tribunals should be open, impartial and fair; that far, one can talk for all tribunals. But the social and legal functions that the various tribunals fulfil are very different.
Concerns at the time of the passing of the 2007 Act were thought to be relaxed after the noble and learned Lord, Lord Falconer of Thoroton—the then Lord Chancellor—said, in introducing the Bill on 29 November 2006, that the Bill,
“will bring tribunals dealing with, for instance, social security, tax, mental health and special educational needs into this new structure”.
He went on:
“The Asylum and Immigration Tribunal, the Employment Tribunals Service and the Employment Appeal Tribunal will retain their existing legal frameworks, acting as separate pillars of the new structure”.—[Official Report, 29/11/06; col. 261.]
That was understood by many people to mean that the Ministry of Justice did not intend to legislate concerning the internal functions of a tribunal, especially its tripartite character. My noble friend Lady Gibson of Market Rasen, who most unfortunately cannot be with us for the passage of this Bill, expressed exactly those concerns at Second Reading of the 2007 Bill. The basic framework of employment tribunals is, and should remain, tripartite and within a framework of the three members who compose tribunals: the chairman, with adequate legal experience, and two members from two panels, one a representative of the employer and the other a representative of the employee.
That has been the case for so many decades now that it may be thought somewhat odd that the question should even arise. It arises because the Ministry of Justice’s paper, Transforming Tribunals, which has still to be consulted about, makes it quite clear in chapter 9 and schedule D of its text that a review and a radical reform of the composition of all tribunals is to be undertaken largely against the test of whether they are value for money and against the test of how much they cost.
In none of the Ministry of Justice’s papers are the separate functions of immigration and asylum tribunals, and indeed the employment tribunals, maintained with clarity. In fact, things have already begun to happen by administrative means under the 2007 Act. The legally qualified chairman is now called a judge; the lay members of the tribunals are now called non-legal members. That is a reason that concern has mounted. So that the Committee does not think that I have made all this up, I am bound to quote a document from the Council of Employment Tribunal Members’ Associations, which fears that the tendency is to remove the status of the lay members—sometimes called the wing persons; one employer and one employee—compared with the legally qualified chairman who is now called a judge. Perhaps I may read the 2008 document to put it on the record:
“When industrial tribunals were first introduced their purpose was quite clear: to allow employer/employee disputes to be heard and decided in a forum where there was ease of access, less formality than in the court system and the knowledge that the dispute was being heard by a panel of three who would be sufficiently experienced in industrial matters, and the law, to understand what was happening. The specialist knowledge was key to the credibility of the tribunal. The tripartite nature of what are now Employment Tribunals was, and remains, crucial to the system. A legally qualified chairman together with members representing both sides of industry was intended to ensure fairness and an informed understanding of the problem in question. All have equal status and play an equal part in the process of decision making. Legally qualified Chairmen do not generally have direct or practical experience of industry and the workplace, and the other members complement this deficiency. Although members are selected from both sides of industry, in the tribunal they are not there to put forward a particular point of view but to play an impartial role in deciding the case”.
I am sorry to subject the Committee to that long quotation, but it stands part of an even longer page or two on the problem and it is the point of view of persons who have spent in some cases many decades as wing-persons on employment tribunals. It is not a question of whether too many cases do or do not go to tribunals; that is quite a different issue—and I quoted the Minister at Second Reading, who went on to say that he thought that more cases could be settled before they got to tribunals, which is a more controversial issue. I am addressing the problem of the composition and framework of employment tribunals. There is a need for a reassurance from the Government that these fears are not well founded and that employment tribunals are not just another set of administrative tribunals but are there for the purpose stated in the Donovan Commission report and a vast number of other documents over time. That was not a party issue. The need for employment tribunals of this kind became a feature underpinning our employment relationships.
Whether those persons who served for so long on employment tribunals and represented many hundreds of lay members, as I prefer to call them, are right or wrong, their fears are such that a reassurance would be welcome. These amendments are proposed to this Bill because there is no other place to discuss the problem in Parliament these days and it would be very welcome if the Government took up the opportunity to do so. I beg to move.
With respect, we got a bit lost. We are wandering in a jungle, talking about constitution and framework for tribunals, what one department is proposing to do and documents in another department. If one looks quietly at what we are concerned with in these amendments, one will see that it is the function of lay members and the equality of them—and nobody has challenged that. It is how it has worked for many years and there is no palpable threat of change to that situation. I have listened with great attention to what the noble Lord has said, but I do not understand any intention of the Government—which is what it would have to be—to change that position. Without an intention of the Government, this is not a Bill in which to give effect to the ideas of the noble Lord, Lord Wedderburn, because there is no other place for them. That is not the purpose of this Bill. Therefore, I would very much object to the amendments as being otiose.
It is always a pleasure to listen to a tour de force on these topics from the noble Lord, Lord Wedderburn, who takes us back through the 40 years in which he has been involved in employment and industrial tribunals. We should listen to what he has to say with eager attention. As I understand it, the substantive point that he is trying to make is that the role of lay members should not be modified. I do not wish to go into the details of the amendments or their implications, which is for the Minister, but it is obvious that lay members in employment tribunals play a very valuable and worthwhile role. They have an important role to play particularly in cases involving dismissal, where issues of reasonableness are often better decided or commented on by the lay members than by the non-lay members. I do not wish to go on at length on this point. Obviously, the noble Lord, Lord Wedderburn, is seeking reassurance from the Government that there is no intention whatever of diminishing or altering the role of lay members.
I do not often join in the cheekiness about the noble Lord, Lord Jones, but I wonder whether the reason he has moved to the right on this amendment is because the CBI agrees entirely with the comments of the noble Lord, Lord Wedderburn. I sat here wondering, “What is the world coming to when the CBI agrees with Lord Wedderburn?”.
I agree with the noble Lord, Lord Razzall—which sometimes makes me wonder—that it is a joy to be able to sit at the feet of someone like the noble Lord, Lord Wedderburn. Many years ago, when I was doing my bar exams, I sat at the feet of a number of eminent lawyers, but none as eminent in the employment field as the noble Lord. I listened very carefully to the explanation that he put forward for his amendments but, like my noble friend Lord Campbell—who, despite what he said on the previous amendment, I usually agree with—I ended up somewhat confused about the purpose behind the amendments. Amendment No. 5 clearly states:
“Nothing in this Act, or in the Tribunals, Courts and Enforcement Act 2007 … shall affect the relationship between the chairman”,
and what the noble Lord describes as the “wing members” of the tribunal. I do not think anything in the Act does that, and therefore is the amendment even necessary, or is it, as the noble Lord, Lord Razzall, and my noble friend put it, otiose?
I appreciate that the noble Lord went on to give his explanation, and he was right to quote at some length from, I think, the 2008 document of the Council of Employment Tribunal Members’ Associations. It is worried that the equal status of the three members of the tribunal might be being undermined. He might just be seeking government reassurance on this matter; I hope that he is not seeking to amend the Bill, because I am not sure that it is necessary—I might be a bear of little brain on this—to add this to the Bill. Doing so might complicate things in other ways, and if we emphasise that, other things might be by implication not emphasised. Perhaps the noble Lord can deal with that when he responds after the Government have responded to his amendment.
I support the amendment, which is in my name and that of my noble friends. A number of speakers have made the point that there does not seem to be any point in raising this matter in the context of this Bill. I know quite well a number of people who serve as wing persons or lay members on arbitration tribunals, and they are very concerned about what the future holds for them. Of course, there is a government consultation paper, which gives them some concern, and I am not surprised because, according to that paper, all tribunals are being considered. There seems to be a view that all tribunals are the same and that their members are somehow interchangeable.
Moreover, there is a quote in the consultation paper from the recent Gibbons review of tribunals to the effect that retired members sitting on tribunals might not always have up-to-date, current work experience; and on the other hand individuals who are currently in employment might have difficulty getting time off to do tribunal work. One way or another, either retired people or people at work who are lay members are apparently not to be considered as suitable to sit on tribunals. That, of course, has made people very concerned.
Another thing that is causing them concern is the apparent reduction in the number of cases heard by full tribunals in favour of tribunal cases heard by a judge sitting alone. That again gives them the feeling that perhaps they are being phased out. The trade unions certainly do not want that to happen, because they have always supported the tripartite setup. The unions believe that the lay people who serve on tribunals offer necessary support, and they give the impression to those who appear before them that they are making their case to members who know what they are talking about. That is not always the case with purely legally qualified people—often they do not have that kind of knowledge. I make an exception in the case of my noble friend because I know that he has both a legal and business background. But that is not generally the case by any means, which is why the lay people are so necessary and important.
I therefore hope that the Government will give serious consideration to the proposal. It is a serious concern held by people who are doing good work. I support the amendment.
Perhaps I may intervene between the speeches of those who have tabled the amendment. I have not put my name on the Marshalled List and had not until this afternoon considered the question in the depth that it has been discussed. There is a great deal of substance in what my noble friend Lord Wedderburn has said about the value of the tripartite system and the concerns of those he mentioned that somewhere along the line there might be a threat to the system. Indeed, the Government are open about consultation nowadays. His substantive point was about the value of the tripartite system—the lawyer chairman, and the two wing men comprising an employer and a trade union member or worker. I avoid using the word “representative” because, as mentioned, they do not represent anyone. However, they have experience that is relevant and different.
I would add to what my noble friend has said by pointing out that the idea goes back much further than Donovan and employment or industrial tribunals, whatever they are called. It goes back to the days of Lloyd George, when he first introduced forms of national insurance. It was thought that the best way to have them determined was by tribunals of this sort. At least, eventually it got around to that and in the post-World War 2 national insurance and social security legislation of 1946 and 1947, the system of a lawyer chairman with two wing men was introduced. It has been tremendously successful not only in the area of employment but in other related areas. It would distress me considerably if that were readily overturned or undermined. If my noble friend the Minister can give some reassurance on this score, that would be of great value.
I listened with great interest to the introduction of this amendment by the noble Lord, Lord Wedderburn. Indeed, I have listened to him many times over many years of legislation on this subject. I agree with him about the importance of the equal status of members. I sat on the employers’ side of a tribunal for more than 20 years from 1974. On the whole, everyone took an open view and considered themselves to be equal. However, when it came to a legal point, we always deferred to the chairman, because he was expert in the letter of the law.
I am sure that it applied on both sides, but I clearly remember a particular case in which, before we had started, the man on the trade union side asked, “How can they do this? This man has been employed for 40 years by this company”. We were all a bit sympathetic, but after we had heard the case, even the trade union man asked, “How could anyone have stuck this man for 40 years?”. They had moved him from job to job within the enterprise in the hope of pacifying him, but nothing would satisfy him. He was really pretty useless in his job. Not all of us automatically had an open mind at the beginning, but after one listened to the evidence, one considered the case very fairly and we were much more open-minded at that point.
I was always opposed to the introduction of age discrimination simply because the tribunals will be jammed full of age discrimination cases because people over a certain age have nothing else to fill their time and will find it is a great opportunity to bring a case. I have always been concerned about the logistics of how one would handle age discrimination cases but perhaps the limitations on it will be sufficient protection.
The name “employment tribunal” came in in 2003. I was never known as a wing member—I was always a lay member—but I would not mind what I was called; it was the fact that I was there that was valuable. I do not think that we should close our minds entirely to cases being heard by a chairman on his own; there should perhaps be an assessment procedure by a three-member panel for cases that would be suitable to be heard by a chairman on his own. If there are more and more cases, as there seem to be—there is a huge pileup of cases—some practical thought has to be given to this.
When the noble Lord, Lord Wedderburn, mentioned the list on page 3 that has to be complied with, that brought me to the point about a consolidation Act. Anyone handling employment law at the moment is under terrible strain, referring from one Act to another and there is much confusion. It is important for the Government to consider a consolidation Act, particularly with the many statutory requirements and amendments.
The noble Lord said that the noble and learned Lord, Lord Falconer, gave no indication of interfering with the structure of tribunals. I think I heard that right but I would like that confirmed. He went on to say that chapter 9 schedule D mentioned review and reform of all tribunals and whether they are value for money. The phrase “value for money” concerns me greatly because I was very involved in the Leasehold Reform Act, which was to help ordinary people to bring their problems without leasehold, and by accident, as much as anything, in the Committee stage, I asked what costs people would have to meet and the reply was, “Everything including the milk for the office cat”. That set the Committee on the alert and we were all very concerned, and a limitation was brought in for people if they had to pay charges to take a case to a tribunal—I am talking about a leasehold tribunal; there was a maximum charge of £500. Without that restriction, if we had been feeding the office cat, the costs would have been enormous and would have ruled out many people.
Some people bring cases to a tribunal as individuals, and they should always have that right. Those who have represented themselves in a case, sometimes do better than those who are badly represented. If one is well represented at a tribunal that is fine, but if you are badly represented, the tribunal might have given you a better hearing without that awful person supposedly giving your side of the case. It is very important to have lay members and I would not want to see them damaged or destroyed in any way.
We must realise that changes will gradually have to occur. As I said there is the possibility of looking at a situation where perhaps a panel of three would decide whether a case was suitable for a chairman only. When the noble Lord, Lord Wedderburn, spoke of a judge sitting alone, I would not want to confuse that with the new mediation role. At Woburn Place—it is now in Kingsway—I sat in London Central and I understand that that is working very well. It is a case of placing the applicant and the defendant in separate rooms and the judge either meeting them separately or together, hearing their case and deciding whether they can reach an agreement. A large proportion of cases heard in that way reach settlement. I do not know where the ACAS role comes in—before then or at that stage—and I cannot give details on that, but I would not want those cases to be described as for a judge sitting alone because the mediation process is quite a different process. I have an open mind on the amendment and I shall wait to hear what the Government have to say.
In speaking to the amendment tabled in the names of my noble friends and myself, I am pleased at the support that it has received from all sides. I could not agree more that the role of lay members is so important with the expertise that they bring to bear. In relation to what the noble Baroness said, in many cases when I was engaged in trade unions, along with my noble friend Lady Turner, we very often had representing us at tribunals not lawyers as such, but people who had practical experience in the field. For the member appearing before them, they could express in practical terms the difficulties that they were facing or what they were seeking as a result of those difficulties. It is very important.
We seek clarification that all members not only remain the same, but that the practice does not come in of the judges sitting alone unnecessarily. I understand that there may be a build up of cases and that we do not want them to have to wait. It may be a way of easing it, but we do not want to lose the expertise that lay members from both sides can bring to the case. We are looking for that assurance from the Minister and assurance that lay members will continue to play the role which everyone who has spoken has said was so invaluable in the past. That should not in any way be degraded or diminished.
I thank the Committee for this important and interesting debate, particularly my noble friend Lord Wedderburn who opened it with such skill and authority. As has already been said, he has a very distinguished record in this field going back many years. He will forgive me if I say that we were treated to a history seminar about the background to employment tribunals that it would be hard to better.
Let me give him straightaway the reassurance that he, those whose names are behind these amendments and, I think, the Committee as a whole, require. The Government strongly support the important role of all the members of the employment tribunal and the Employment Appeal Tribunal. I do not believe that my noble friends are seeking to put these amendments in the Bill just like that: I think that they are seeking reassurance from the Government that the long tried practice of the tripartite way in which tribunals are set up will continue.
We recognise the key role played by lay members in employment tribunals and, of course, by the appointed members of the Employment Appeal Tribunal. In the consultation that took place on dispute resolution, numerous respondents told us that they believe that the tripartite nature of the tribunal was a real strength of the system. We have heard that expressed across the Committee from all sides today. For example, the Law Society commented that the role of lay members,
“is very important, as their practical experience provides a balance to the legal expertise of the Chairs”.
That point was made by my noble friend in moving this amendment.
There has already been reference to the CBI for its belief that lay members make,
“a key contribution in assessing reasonableness of actions and responses”.
The Government agree with those views and are committed to the continued presence of the tripartite panel as an integral element of the employment tribunal system.
Accordingly, nothing in the Bill has any implications for the role of lay members, except perhaps in Clause 4. Clause 4 underpins the proposed fast track, where the Government intend to exercise their existing powers—to which I will return in a moment—by putting in place a system for a chair sitting alone to determine a case on the basis of the papers, provided the parties consent. Such a fast-track mechanism was supported by more than 70 per cent of respondents to our consultation.
The Bill will not in any way change the existing provisions relating to jurisdictions that are heard by a chair alone. Indeed, Clause 4 places restrictions on the circumstances in which a case can be decided without a hearing, thus putting in place safeguards that did not exist before but will do now, limiting powers that have been on the statute book since 2002. In moving his amendment, my noble friend was reasonable in saying that if this stood alone it would not count for much, and then went on to describe how there is genuine concern, which we accept exists, about the future role of the employment tribunal in its present form.
In relation to Amendment No. 5, nothing in the Bill or in the Tribunals, Courts and Enforcement Act 2007, makes any change to the relations between the members of the employment tribunal, which are set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. I want to make this point as clearly as I can: all members of the tribunal enjoy equal status, save in the rare instance that a tribunal is composed of two members, in which case the chairman has a second or casting vote. The amendments are therefore not required. I am not convinced that those who support the amendments believe they are required so much as want the reassurance that Committee Members have spoken about.
Nothing in the Bill has any implications for the role of lay tribunal members or appointed members of the Employment Appeal Tribunal. The Tribunals, Courts and Enforcement Act 2007 was fully debated in this House and the other place. Its provisions concern administrative matters and judicial powers, from most of which the employment tribunal system is excluded. The scope of the Bill does not extend to such matters. However, in relation to the transformation of tribunals, the Government recognise the distinctive nature of employment tribunals and are committed to maintaining that as a separate pillar within the tribunal service as provided for in the Tribunals, Courts and Enforcement Act.
I also want to make it clear, if I have not already done so, that the Government do not intend to interfere with the tripartite arrangement. There was a request from the Committee for reassurance from the Government and I finish as I started—I gladly give that reassurance to the Committee this afternoon.
I am very grateful for what the Minister has said. My noble friend has given reassurance about the Government’s support for the role of all members of the tribunal, the key role of lay members and—I have waited for this—towards the end, the equal status of the members of the tripartite tribunals. Had he not said that, I would have done justice to my case, which I did not in opening, and spoken to Members of the Committee for some time on the various areas of history that lie behind the Donovan Commission and the comparative law and practice of tribunals in France and Germany, which were not adopted here, although they are suitable for their industrial relations. Our industrial tribunals came rather late in the game, but they occupy a very important position.
I am very glad that the Minister said what he said. However, the consultation that he quoted is the one from the DTI which is now, by bequest, the problem of the Department for Business, Enterprise and Regulatory Reform. He did not mention the consultation from the Ministry of Justice called Transforming Tribunals. I do not want to make any trouble between my noble friend and the new lay Lord Chancellor, but it is a fact that if you read that consultative document, which I suspect very few people have done, and read the Tribunals, Courts and Enforcement Act 2007—in which perhaps we should have intervened at the time, but did not see it coming—there is a very different character and view lying behind that face of government. If this afternoon’s assurance can do away with that, no one would be more pleased than my noble friends and I. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [Statutory dispute resolution procedures]:
3: Clause 1, page 1, line 3, leave out “to 33” and insert “and 31 to 34”
The noble Lord said: I shall speak also to Amendment No. 4.
This amendment goes simply and straight to the Bill, which repeals the procedures that became the statutory procedures. To put it briefly, Section 30 of the Employment Act 2002 does not contain one of those procedures and does not address them, except in a particular way. It is pure machinery. The Bill before us would repeal the content of the procedures in Sections 29, 31, 32 and 33—and we think Section 34 as well, but that is a minor matter.
The purpose of Section 30 of the 2002 Act, which I do not believe has ever been brought into force, was to make what the Government at that time believed to be suitable procedures an implied term of contracts of employment, unless the negotiated procedures added to or were superior to those procedures. Members of the Committee may know that my noble friends Lord McCarthy and Lady Turner of Camden and I opposed the content of those statutory procedures at the time because we thought them unfair to workers and unduly complex and would cause more trouble than they were worth. It has taken a few years, but the Government have come round to our point of view. They are repealing the procedures totally—and we are very pleased to see that that is happening. However, to repeal the content of the procedures is merely to leave a void. What is to happen in the legislation about procedures in the place of work with regard to employment disputes?
The Government were right in their choice of a mechanism in Section 30 of the 2002 Act of making something a floor of rights for procedures to operate, unless something more satisfactory was negotiated. That seemed to us a sensible approach to the matter, unless legislation is to play no part.
It is perfectly normal for legislation to play this role in regard to employment relations. Indeed, if I may say so, I was the author of the phrase that one sees in books, if one bothers to read them—not academic books, but all sorts of other books and articles—“a floor of rights”. Employment legislation tends to establish a floor of rights, whereby employers and employees satisfy reasonably civilised standards in the employment relationship. One can think of sex discrimination and all the 22 jurisdictions on page 3 of the Bill, which Members of the Committee might like to read if they have not done so. It is always open to an employer and employee representatives to negotiate something rather more satisfactory for the workplace and that is therefore better.
Section 30 of the 2002 Act recognises that that is the case. Subsection (2) provides that the procedures are to be the basis of the relationship but that anything,
“additional to, and not inconsistent with”,
those procedures is not to be affected. That seemed to us a rather good basis for the House of Lords to take: that this is the platform from which we proceed towards more detail at particular places of work.
However, the Bill as currently drafted leaves a void—it merely repeals, quite rightly, the content of the procedures. The amendment proposes that the floor be the ACAS code of procedure on disciplinary and grievance procedures. Until yesterday, when I received my copy, I could not be absolutely sure that we would not want to make some footnote exception to that. Now that I have seen the draft, which is what I hope we will be left with as the ACAS code, we are encouraged that our amendment got it right. The ACAS code should be what one begins with at the place of work, and after that it is up to the parties to get on with it if they think something better should be negotiated.
It may be that some minor amendment will be made to our amendment—I do not suggest that our drafting is 100 per cent right—but the concept behind it is intended to help. That is what the law should do in this area: it should help at the place of work and make such procedures an implied term of contracts of employment. Unless something better is negotiated, it was rather a good idea in the 2002 Act, and I would be surprised if the Government now believe that it was not. They did not bring it into force, of course, because they came to the view that the content of the procedures they were proposing was horrifying. It was unfair, too complex and counterproductive.
I therefore suggest that there is a case on the Government’s own structure of the 2002 Act at least to look favourably on the concepts behind our amendment. I beg to move.
Is the concept that this code should have an affirmative resolution in both Houses? It is going to be a substitution for a previous regime. Is the idea that the drafting of the code will be given to ACAS, or is it to be approved by Parliament?
I take that to be a question while I was in a semi-recumbent position. This is a suggestion that what ACAS puts forward as a sensible procedural basis for employment relations is the floor from which the law begins. There is no question of any order being made; the amendment keeps Section 30, with certain amendments. It may be that more amendments are needed, but the concept behind it is not concerned with the problem the noble Lord raised.
I shall make one brief comment that arises from this amendment. We are supposed to be the revising Chamber and therefore, when the Government put legislation before us, we hope that they, if not make it easy for us, at least do not try to make it impossible or deliberately obscure. I understand that in moving Amendment No. 3 the noble Lord, Lord Wedderburn, was saying, “Don’t repeal Section 30”, and then inserting the new clause.
As I understand it from what he said, Section 30 has never been brought into force by the Government, although it is still in the 2002 Act. The current Criminal Justice Bill in which the noble Lord, Lord Bach, and I are both involved, repeals parts of the Criminal Justice Act 2003 that have never been brought into force. It is an extraordinary way to legislate if Governments first consult; then bring in legislation; then fail to bring it into force when it is on the statute book; then after further consultation repeal it; and then bring in something new instead. Can I ask for some assurance from the Government that they will talk among themselves and between departments? The noble Lord, Lord Wedderburn, earlier referred to some confusion between the Ministry of Justice and the Department for Business, Enterprise and Regulatory Reform and to the slightly different tones of their consultations on tribunals. One would like to be sure that they talk to each other about matters that relate to tribunals—so there is a Ministry of Justice interest—and talk among themselves about whether the right way to go about things is to pass Acts, fail to bring parts of them into effect and then repeal them in two or three years.
As the noble Lord says, it brings into force an amended Section 30. The point I was making is that the Government have never brought in Section 30, six years after passing the 2002 Act. Much the same is happening in the Criminal Justice Bill. It is an extraordinary way of cluttering up the statute book with various new clauses that are not brought into effect and which the Government set about repealing a few years later.
First, I assure the noble Lord, Lord Henley, that we practise joined-up government. I ensure that different departments talk to each other on matters that I am concerned with.
Amendment No. 3 repeals Section 34 of the Employment Act 2002. In addition, this amendment and the new clause inserted by Amendment No. 4 together retain an amended version of Section 30 of the Employment Act 2002, such that the procedures in any ACAS code of practice relating to the resolution of disputes shall be implied terms of all contracts of employment. I shall deal with these two issues in turn.
I assure my noble friend Lord Wedderburn that, as I am sure he fully understands, the Bill does not provide for the repeal of Section 34 of the 2002 Act, for the following reason. Section 34 provides, first, for the introduction of a new Section 98A into the Employment Rights Act 1996. Repeal of Section 98A is specifically provided for in Clause 2 of the Bill; the other provisions related to Section 98A introduced by Section 34 will be repealed as an automatic consequence of that action. Section 34 also introduced other changes to the Employment Rights Act 1996 that we do not intend to repeal. These allow for an additional award of four weeks’ pay in the separate context of retirement dismissals, a provision which was introduced by the Employment Equality (Age) Regulations 2006. I presume that the proposers of the amendment do not intend to remove those unconnected measures.
On the second proposal contained in these amendments and the retention of Section 30 of the 2002 Act in an amended form, the section provides for the 2004 statutory dispute procedures to be implied terms in all contracts of employment and has never been brought into force. It relates to procedures, in so far as it makes statutory procedures up to now implied conditions of all contracts. We see no reason to retain the section as amended, for the reasons that I have just given, and we are providing alternative measures to replace the statutory procedures: an ACAS code to be taken into account by tribunals, an enhanced helpline and more conciliation. Employees are properly protected by having good information and advice about their options for seeking redress if they have a grievance at work, including early conciliation from ACAS to resolve matters at that stage, if at all possible. However—and this is very important—they will have unfettered access to an employment tribunal if that proves necessary. That is what is provided in the package of measures that we propose.
In addition, Section 3 of the Employment Rights Act 1996 was amended by the 2002 Act to require employers to provide details of their discipline and grievance procedures in the written statement of employment particulars. The failure to provide such a statement may give rise to a freestanding tribunal claim, though with no compensatory award, but it may also lead a tribunal to increase an award made under other jurisdictions.
The consultation document on draft statutory dispute procedures in 2003 pointed out that the main effect of the provision would be to allow one party to make a breach of contract claim against another in the civil courts—or, in some circumstances, the employment tribunals—if the other party failed to follow the procedures. That would be the case even if the failure could not in itself give rise to a valid claim to a tribunal. The Government proposed not to commence this provision until there had been a chance to see how the procedures would bed down. In responses to the consultation, 62 per cent agreed with deferring commencement and only 6 per cent thought that the section should never be commenced. The Government concluded that they should defer commencement until they had reviewed the impact of the procedures. In the event, we are now repealing the procedures and replacing them with a lighter-touch approach to resolving disputes in the workplace. In that context, the Government believe that there is even less reason to provide for freestanding claims against employers when there is no substantive grievance.
Proponents of the commencement of Section 30 in the 2003 consultation argued that it would increase the protection of employees, and draw their attention to the procedures of which they might otherwise be unaware. Our current package of proposals includes an enhanced ACAS advice service and helpline, all of which is designed to make employees aware of their rights and possible courses of action in the event of a disciplinary matter or grievance. That type of measure, not the encouragement of legal proceedings, is the sensible and proportionate way to ensure that employees are properly protected and aware of their rights. My noble friend Lady Turner was kind enough to say that in my previous two lives—one as a lawyer and one in business—I understood the practical implication of the subject of this afternoon’s proceedings. Not to encourage legal proceedings might have upset me in my first calling, but in my second I would have thoroughly enjoyed it. It is in line with the whole thrust of our policy following the Gibbons review, which is to encourage early and informal resolution of disputes.
I hope that this clarifies our reasons for not repealing Section 34, and why we do not believe it would be appropriate to retain Section 30 in a modified form.
There are two points as I understand them. First, I should not have included the repeal of Section 34; the objection to that is somewhat technical, and I do not propose to delay Members any further in Committee on that point. I am quite happy if that is left out. I am not happy if the good idea that the Government had in 2001 in Section 30, which they did not bring into force, as I understand it, because they began to understand the objections that we made to the content of the procedures that they were bringing in in the 2001 Bill, as it then was, is any reason at all for not using that device now. The fact that the Government had a good idea and then bad content to fill it up with suggests that they should use their good idea now and not propose—because this is what is involved—that the Bill should do nothing at all about this area of dispute procedures, which they simply leave as a void.
The Minister said that there will be a better telephone helpline, and we are very pleased to hear that. He says that there will be more conciliation. Our support for ACAS in previous amendments should suggest that we are very pleased to hear that, although ACAS adapts its procedures with conciliation and with mediation, which is very different from conciliation, with arbitration, where that is helpful, and with a special scheme introduced in 2001 for alternative dispute resolution, although in fact that has not been a great success. We are very pleased to hear all that, but we are asking whether there is any contribution at all that the Bill can make to this area. Apparently not.
No floor of procedures is to be even suggested in the Bill, except in the normal case that the ACAS code of practice can be taken into account. We want an obligation that employers should accept the basis of the ACAS code, and that is why we thought it was rather a nice thing to congratulate the Government on their good idea and adapt it, with the ACAS code being the floor of rights from which everyone proceeds. I can see that the Government do not want this Bill to contribute to the law on the matter. We will consider this again before Report, because it seems to me at least that the matter should have rather wider discussion than is possible in this Grand Committee, where no decisions can be taken anyway. Therefore, it is sensible for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
[Amendments Nos. 4 and 5 not moved.]
Clause 2 agreed to.
6: After Clause 2, insert the following new Clause—
“Procedure on disputes concerning surveillance and monitoring
(1) ACAS shall issue a code of practice, or such codes of practice applying to categories of employers as in its discretion it sees fit, concerning procedures for the resolution of disputes about employers’ use of such methods of surveillance and monitoring of employees’ performance of their obligations at work as affect their human rights and dignity.
(2) In preparing a code of practice to be issued under this section, ACAS shall consult—
(a) the Information Commissioner;(b) organisations representing workers and employers; and(c) such other persons as ACAS consider appropriate.(3) In preparing a code of practice to be issued under this section, ACAS shall, in particular, take into account technology whereby pilots, astronauts, fire-fighters and other persons are continuously monitored at work, and other modern technologies of a similar nature.”
The noble Lord said: To me, this was a rather remarkable discovery. By that, I do not mean that systems of monitoring and surveillance of workers at the place of work is new; of course all sorts of systems for that have been invented for many years in the past. If I may mention one comparative aspect, the legislation in Italy of 1970 made a special point of demanding that any procedures concerning the surveillance and monitoring of workers at the place of work had to be agreed with the trade union.
However, that will not by itself convince many Members of the Committee.
The reason for moving the amendment now is that there seems to be a development coming along through which employers and managers can acquire methods of monitoring workers at the place of work in the most extraordinary ways. There are two ways of looking at the employment relationship. One is what is sometimes called the work-wage bargain: that the employer buys a certain amount of labour or, if you wish, labour power, in return for the wage. The other way of looking at it—which I understand, from the literature with which I am familiar, is rejected by all civilised countries—is that the employer buys the worker. I take the notion that the worker retains some dignity and human rights at the place of work as common ground in this Committee. I make the case for some amendment of this kind on that basis.
I had better mention that my knowledge of this is through the reports of a new system brought out by Microsoft, for which they are applying for a patent. It has been described by a senior QC, Hugh Tomlinson, an expert on data protection, as a system which,
“involves intrusion into every single aspect of the lives of the employees. It raises very serious privacy issues”.
The system operates in an electronic manner which I do not claim to understand. I rest the point upon the accounts of the system which appeared in the Times, the Financial Times and other places. It works by recording and analysing what words and numbers are used, or websites visited, by watching the user’s heart rate, breathing, body temperature, facial expressions and blood pressure. It allows for the automatic recording of frustrations and stress in the user via psychological and environmental sensors, and offers the results automatically. The most important thing in a practical sense is that, as the report says, every person will be analysed in real time to allow the computer to decide what steps and actions should be taken. From this data, the report goes on, statistics relevant to all sorts of problems can be provided to users and employed in gauging their efficiency.
One scenario given in the patent is of “Joe”, who is spending more time on an activity than was originally allocated, and measuring his performance. One has an automatic system which will record the performance of the worker, even down to facial expressions, in way which has never been known before. That is what Microsoft claims, and I have no grounds for thinking that it is not true.
I will not detain the Committee with further details of the report of the system, which are very long. However, it is apparent that a system at the place of work that is able automatically to monitor a working person’s activity, facial expression, breathing, heart rate and everything else comes close to the line between buying a certain amount of work and buying the whole human person. That is why the amendment refers to the human rights considerations which appear in the Human Rights Act and in the European Convention on Human Rights, relating to the dignity of workers.
Some kind of consideration ought to be given before we have this sort of legislation coming into force in all kinds of places of work. That may be in a few years’ time; it may be longer. However, one of the functions of legislation is to anticipate. It is not merely to deal with problems that have already arisen. The legislature ought to be sufficiently cognisant of what is likely to happen to make some move about it. This amendment provides that such matters should be the subject of procedures, and ACAS should be consulted in regard to the matter. Furthermore, a code of practice on the matter would be very relevant—at any rate, a code that takes account of what is likely to happen, which can be adjusted to the practices at the place of work.
If Members of the Committee have not had the opportunity to read about this system, they will find articles in the Times and the Financial Times of 15 January 2008. They provide a much longer explanation than I have been able to give today. It is a serious matter that I have not made up. I came across it by chance—not even by research. It ought to be the subject of the Committee’s attention, which in this Bill has the opportunity to adjust the relationships at work with some sort of view of future problems. I beg to move.
I congratulate the noble Lord on the timely nature of his amendment, which deals with surveillance and monitoring. Today we have heard a Statement in the Chamber about the Government or one of their agencies bugging one of their own MPs and Whips as he visited a constituent in prison. This is a serious matter. Obviously, a great deal of this is going on, and there is a great deal of abuse of the system. None of us had the chance to hear what was said in the Statement, but no doubt we will be able to discuss it at a later stage. As the noble Lord, Lord Wedderburn, made clear, there is already a great deal of perfectly legitimate surveillance of employees at work; whether it is an HGV driver recording details in the cab to ensure that he does not drive excessive hours, or whatever.
However, this matter must be dealt with to ensure that it is at the right level. Whether ACAS is the right body to produce such a code of practice when the issue goes much wider, as evidenced by the Statement being made in another place, is another matter. I do not know whether we need to have a bigger debate, particularly in the light of that, looking at the articles referred to by the noble Lord, Lord Wedderburn. We might want to come back to the subject on Report and have a fuller discussion. Alternatively, the Government, in the interests of joined-up government, might want to discuss the matter with the Ministry of Justice and the Home Office to consider whether they should be giving further assurances, not only in regard to disputes concerning the surveillance and monitoring of employees, but the wider question surrounding surveillance and monitoring in what many of us consider a 1984 type of society that has been created.
I support the amendment. We are becoming increasingly used to being monitored and surveilled. At stations and elsewhere there are surveillance cameras. People accept it because it is believed to be necessary to protect us from terrorism or street crime. However, recent reports indicate that technology is becoming available—Microsoft has already been mentioned in this connection—that will enable people to be individually monitored without their knowledge or consent at work, in a way that has been described in detail by my noble friend Lord Wedderburn, in moving the amendment. This is not of course for protection at all but simply to enable employers to monitor employees in the interests not of employee safety but for employers’ profitability.
This is quite unacceptable. It is an affront to dignity and a breach of human rights. George Orwell’s famous novel was written to oppose what he imagined as a possible development—the emergence of a Stalinist regime, in which everybody was watched all the time. Are we seeing this emerge, instead, in latter-day capitalism? Fortunately, we do not have to accept it, and hence this amendment. I hope that the Government will be prepared to accept it in the terms suggested by the noble Lord, Lord Henley, because it is worthy of fuller discussion than perhaps we may have here.
I congratulate all noble Lords who have added their names to the amendment. This is a very big subject and I am very grateful that we have this opportunity to discuss it. The only hope is that the Government will take it over, as it is too big a fare to leave to ACAS or just to have an affirmative resolution supporting a code of practice. This is what is happening in the new age. I read by chance the article to which the noble Lord referred and was shocked to the core.
The question is simple to put: what is lawful and what is not? The code of practice would have to show which side of the division something fell or did not fall. It is quite beyond ACAS to do that; it would have to be dealt with in a government Bill on a proper basis. In the mean time, some step could be taken by the Government—a temporary step if they wished—to shore things up until there is a Bill that deals with the matter. This has to be dealt with more seriously, not only in Report on this Bill.
I rise only to say that I am so pleased at the support being given by everyone who has spoken in relation to this matter. It is very important, as has been said, because the proposals appear to be going a step further and taking over the person completely. It is right that 1984 has been referred to several times. This amendment is an attempt to bring the matter to the Government’s attention and to point out that it needs to be dealt with and monitored—someone has to do it. I am pleased by the support that the amendment has received and I look forward to hearing from the Minister what the Government’s view is on this matter and what steps may be taken to deal with something that could affect the lives of so many people in such an intimate and detailed way.
I come to the amendment as very much a new boy and as someone who is learning every day. I say what I am about to say with huge respect to noble Lords, but I believe that I have heard a considerable amount of alarmism over the past few moments. In my considerable ignorance, I crave a look at this with a degree of perspective.
The Government are very supportive of codes for ACAS. It is highly regarded by both employers and employees, and it certainly prevents many more cases coming before tribunals. But there has been no pressure on ACAS to produce the sort of code that is mentioned in the amendment, and ACAS is not aware that there is any need for such a code. We already have a comprehensive code that has been issued by the Information Commissioner. This is what people have to deal with every day; every employer has to have that and look at it. That deals with employee monitoring and includes electronic surveillance, so there is already something in place to deal with the exact point raised by my noble friend. The amendment is not necessary for a new code of practice, because ACAS already has the power to issue a code of practice whenever it thinks fit, which is in Section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. If we need one, it can go and produce one in the morning, as it is for the purpose of promoting “the improvement in industrial relations”.
As an aside, at UK Trade and Investment, I have worked very hard to remove the words “industry” or “industrial” from most things that we do, because industry conjures up so many ideas of smoke stacks and old factories, and it is not what modern Britain—modern business Britain and modern brand Britain—is about. If we go to some of those fabulous manufacturing facilities all over Britain that still make more things than people ever give credit for, we see that they do not associate with the word “industry” but with words such as “manufacturing”. The statute uses the word “industrial”. ACAS has a remit for the public sector as well, for good quality, hardworking people in the public sector who again—I think—do not associate with “industrial”. They might associate with “labour relations”, “workplace relations” or “employer-employee relations”. I suggest that one day we look at the use of “industrial”.
There is an existing general power. It is not necessary to introduce further legislation providing ACAS with a specific duty to produce a code on resolving disputes arising out of employee surveillance or monitoring. If ACAS wants to produce the code, then let it do so. I remind the noble Lord, Lord Henley, that the last two words in BERR’s title are “regulatory reform”. If he wants another one of those to add in duplication and more red tape, which I presume is where he is leading, I say, “Forget it”.
I am not necessarily asking for another document of that sort. In the light of the concerns that have been expressed by the noble Lord, Lord Wedderburn—who is one of his party colleagues—on this matter, and by others in Committee, I suggest that he tries talking to his department, the Ministry of Justice and the Home Office about the wider concerns that have been expressed. I suggest in passing that he talks to them rather than writes, since no doubt they would lose the letter, as No. 10 lost the letter from my honourable friend Mr Davis. The Government are not very good at keeping any records at the moment. Will the noble Lord talk to those departments about the concerns that have been expressed and say that it goes beyond the workplace? He could say, “We agree that there are problems in the workplace and we already have the document, but could you look at it more widely throughout all Government?”. As the noble Lord assured us earlier, the Government are very joined up in this and in all other matters.
Briefly, my noble friend is right. The amendment is wider; it goes to human rights and dignity. The speech moving it went wider, to general human rights and so forth. This is a larger question than can be wholly related to the Bill. All I am asking—although that is probably of no consequence—is that the amendment should be rejected unless it is implemented by Parliament by some form of resolution. Basically, however, the major problem should be accepted by the Government. Apart from the document for ACAS, they are as perfectly capable of and justified in dealing with things as they were when that document was written. Things are now getting to the stage where the Government’s attention should be brought to bear on what is, and is not, legal in a government Bill.
It is me who should apologise; I did not know that I should have quickly got to my feet again.
The noble Lord, Lord Campbell of Alloway, raises an excellent point. With respect, however, I suggest that it is probably not for this amendment. I also assure the noble Lord, Lord Henley, that UK Trade and Investment—the department I have the privilege of leading—is partly in the Department for Business, Enterprise and Regulatory Reform and partly in the Foreign and Commonwealth Office. I also have a link into the Ministry of Defence. I make it my business to ensure that our work goes through every single part of government, usually face to face or on the telephone—not often by letter. The whole of brand Britain goes into every single aspect of what the Government do. I assure the noble Lord that these views will find their way to where he requires.
I close with an observation. If this is about 1984 and the wider, deeper values that we hold so dear in this nation, and of which I am so proud when I go to other countries, going to the core of human rights—human rights and dignity are currently covered in the Information Commissioner’s code—then I suggest that it is for another debate. It is for something other than one amendment to what is essentially an administrative workplace issue. I do not for one minute diminish where Members of the Committee are trying to take this, but this is not the place to do it.
Before the Minister concludes, I have been listening with great interest. He has not really dealt with the substance of the point raised in the amendment, but the procedure through which it might be dealt. Can he go back to the substance? I know he is advising us that this is not the place, but he referred to the code as already having provisions dealing with surveillance and monitoring. It might be of great assistance to the Committee if he could indicate his own judgment on that bit of the code that already exists, and whether it could be built on without all the bureaucratic and administrative problems that he outlined in his deregulatory approach. Is the code currently sufficient? Could it be improved in some way? If he told us, we could deal with this matter now rather than leaving it for another day.
I can assure the noble Lord, Lord Hunt of Wirral, that from the Government’s point of view there is no need to put pressure on ACAS to produce any more codes. If it wants to it can, but we are satisfied that it has sufficient power today to respond to pressure from anywhere. As we speak, it has not received that pressure but after today it might. In our view, there is no need to add to the paperwork, to the regulation, to another pile of red tape which burdens business every day.
However, as the noble Lord says, while I was concerned with the concept of the wider issue, I did not wish to demean it. It goes to the heart of what this nation is about and I can see the point. I am satisfied that with what ACAS currently has in the box of tools which it can bring to bear at any time, it can deal with the issues raised in the workplace; on whether it can deal with them outside the workplace, I suggest probably not, but this is not the place to discuss that.
I repeat how grateful I am to everyone who has spoken on this amendment. There are a number of objections to it. The first is, as some noble Lords, including the noble Lord, Lord Campbell of Alloway, have said, a lack of confidence in ACAS being able to do the job. ACAS has expressly asked to take account of certain matters and to consult certain persons, including the Information Commissioner in subsections (2) and (3) of the amendment. I have great confidence in ACAS being able to do this job. I also have confidence in it being very appropriate to the Bill.
This is an employment Bill and the problem of surveillance and monitoring comes out in an acute form in the employment relationship, in which the worker earns his wage and the employer observes some sort of civilised standards of behaviour. ACAS is perfectly capable in consultation—it normally consults all the relevant people. If one looks through its codes of practice, one sees all sorts of things where it has taken account of views of experts in the matter. Human rights do not stop at the office door or the factory gate. Human rights is a concept that we have come to understand rather better than we did in years gone by. I am long enough in the tooth to remember talking about not being unfairly dismissed as a human right. No doubt, today the arguments would place that outside the Bill.
It will not do for the Government to say that this is not something to deal with now and that we should perhaps wait to consult all sorts of other people. No reassurance is given that they will consult anyone at all. I reject the view that the code issued by the Information Commissioner deals with the problem. That is a misreading of the amendment and it is completely out of date in terms of the kind of monitoring to which my noble friend Lady Turner of Camden referred. It is not good enough for the Government to take this relaxed view that nothing needs to be done. The Italian experience, of which I know something, shows that in 1970 it was absolutely justified to get in early on this problem and that has had an effect on industrial relations, despite all the other problems that everyone knows about in Italian industrial relations. It could have an effect here and would give a reassurance to workers that the matter has not been overlooked. I am very disappointed in the Government’s response to something on which many noble Lords saw the point and which has received such support in Committee. We shall have to consider this matter very carefully in view of what the Minister has said and see what we should do on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Non-compliance with statutory Codes of Practice]:
7: Clause 3, page 2, line 27, after “issued” insert “by ACAS”
The noble Baroness said: This is a simple amendment, which I hope, on this occasion, the Government will be prepared to accept. We seek to amend Clause 3, which says,
“‘relevant Code of Practice’ means a Code of Practice issued under this Chapter”.
We want to insert that it,
“means a Code of Practice issued by ACAS under this Chapter”.
We want again to emphasise the role of ACAS in regard to the code of practice and to make it clear that the relevant code of practice is the one issued by ACAS. It is important to have that put in this part of the Bill so that there is no doubt about it at all. As we know, the ACAS code, its desirability and the rest of it has figured very much in discussion of the Bill. I am grateful to the Minister, as others have been, for the text with which we were issued recently, but, of course, we have had it for only a very short time. I received it this morning, so I have not had a chance to look at it.
Clearly, it is important and we want to make sure that this section makes it clear that the “relevant Code of Practice” is the ACAS code. I hope that the Government will be prepared to accept this amendment, which is meant to be helpful. I beg to move.
I shall refer to “the” code; that is, the one that has been referred to earlier. I want to thank the noble Lord, Lord Bach, for getting to us a copy of what I take to be the draft—I do not know whether it is the first or second draft or whether there will be other drafts—as he partially promised when he wound up at Second Reading. He said that he would do his utmost to get it to us before we considered it in Committee. I thank him for having done his utmost and having got it to us this morning. The problem is that I first saw it as I got off the 6.30 am from Carlisle today and I am not sure that I wanted to read it in excessive detail. I also noted at the same time some comments from the Engineering Employers’ Federation, which said that it would be interested to see the code. It continued:
“It may be one thing if the draft code is a very short statement of basic principles which all employers and workers can be expected to know and understand, but quite another if it is, as now, a 36-page thesis on good practice for employers”.
It looks as though they are complying with what the EEF was asking for and it is a relatively short code. However, at this stage, we would prefer to reserve our position—if I can put it in quasi legal terms—and say that we would want to come back to this, having had a further look at it, on Report. It remains to me therefore only to end by again thanking the noble Lord for having got it to us at this stage.
I assure the noble Lord, Lord Henley, that I do not know what time the 6.25 am from Carlisle got in today, but I am pleased that my noble friend Lord Bach got this to him in time for our debate. It is just four and a half pages of double-space type. I sincerely hope that the noble Lord had plenty of time to read such a short document.
Obviously I have had time to read it. That is not the problem. As the noble Lord will be aware, one needs to discuss this with colleagues, many of whom have had other things on their minds. To debate something adequately in Committee, one needs a little more time than a couple of hours in the run up to the Committee. As I said, I am very grateful to the noble Lord’s colleague for having got it there on time. He met his promise, but, as I said, I reserve my position and we will probably want to come back to it at a later stage.
I am delighted that we all have the document. I assure the Committee that it will be the subject of consultation at a later stage. This is not the settled form and I know that Committee Members will give it plenty of time on their train journeys in the future.
Order. The Committee will adjourn for 10 minutes.
[The Sitting was suspended for a Division in the House from 5.31 to 5.41 pm.]
The Government consider it important that employers and employees be encouraged to act appropriately in attempting to resolve disputes in the workplace prior to an employment tribunal. Indeed, Michael Gibbons in his review and respondents to the public consultation all pointed that out. From my previous experience in other lives, I could not agree more.
The Government therefore propose a package of measures to encourage early resolution of disputes in the workplace. New services within this package include an enhanced ACAS helpline and advice service and more ACAS conciliation for potential tribunal claims. This package of measures includes an incentive mechanism to encourage parties to follow good practice. Clause 3, as it currently stands, creates such an incentive mechanism. It is proposed to give the tribunal the power to adjust awards up or down by up to 25 per cent if either party has acted unreasonably in failing to comply with procedural elements of the relevant statutory code.
A relevant statutory code is one issued under Chapter III of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992, so far as it relates to procedures to be followed in workplace dispute resolution. That allows application of the adjustment in the context of procedural provisions of existing or future relevant codes issued by ACAS or the Secretary of State. However, the amendment would restrict the relevant statutory codes only to those issued by ACAS and nowhere else. I should say at this point, and I am sure that the Committee will agree, that ACAS plays an important and valued role in the resolution of workplace disputes. The drafting of this clause to refer to codes issued by either ACAS or the Secretary of State is certainly not intended to belittle the role of ACAS in any way, and I shall go on to explain the drafting.
In the vast majority of cases—I hope that this will deal with the issue that Members of the Committee raised—the relevant code will be the ACAS Code of Practice on Disciplinary and Grievance Procedures. That was received by Committee Members this morning and will be amended by subsequent consultation in the weeks ahead. The amendment would restrict a relevant code only to those issued by ACAS. Although that does not pose immediate difficulties, such a restriction—
Will the Minister enlighten us on that point? He said that the code has now gone out for consultation, so it is ACAS’s code that has been produced. Under pressure from the noble Lord, Lord Bach, because of his promise at Second Reading, the code has now been sent out to consultation to a whole raft of employer groups and employee groups. Have I got the right end of the stick? Is my understanding correct? What will the consultation be? How long will it continue? Will we, on Report, have a final version or will we still be looking at the draft code?
I assure the noble Lord, Lord Henley, that Members of the Committee are all looking at the document that is going out for consultation. It has not yet gone out to all those parties who would normally receive it: that will happen in the next few days. It was sent specifically to Members of the Committee this morning, but it will probably not be ready in settled form after consultation in the timeframe suggested by the noble Lord.
The clause does not currently restrict the code to one published by ACAS. Although that does not pose immediate difficulties, such a restriction could cause difficulties in the future. Although there is no current intention for the Secretary of State to issue a code of practice under this chapter, which includes provisions relating to resolution of disputes in the workplace, the power for him to do so exists and it would not make sense for tribunals not to be able to take the provisions of any such code into account when considering the fairness or otherwise of the procedure used or the adjustment of any award.
As I said at the outset, it is important that employers and employees are encouraged to act appropriately in attempting to resolve disputes in the workplace prior to an employment tribunal. I hope that all Members of the Committee will agree that the more that can be done to ensure that disputes are resolved before we get to a tribunal, the better. This clause does that through the power for tribunals to adjust awards, in the vast majority of cases, by reference to the ACAS code on discipline and grievance.
I have been asked to assure the Committee that further amendment will take place on what was received this morning before consultation.
Good. I am still somewhat worried because we will not get a chance to see the final version before the Bill leaves this House for somewhere else. The code is not part of the Bill, but the noble Lord, Lord Wedderburn, put it elegantly at Second Reading when he said that it was something of a pig in a poke if we do not have a copy of the ACAS report before we debate the Bill. Therefore, it is important that we have a greater attempt by the Government to give us the final version of the code before the Bill leaves this House, so that all parties have a proper chance to debate it.
My noble friend Lord Campbell of Alloway earlier expressed some concern that the code ought to be on the face of the Bill or a statutory instrument. I am not sure whether that is appropriate because this is just a code coming from ACAS, but we want to see the final version.
We have a tremendous opportunity to influence the content of the code if we are now being presented with it in its draft form. I reiterate my personal thanks to the Minister and the noble Lord, Lord Bach, for fulfilling the promise they made to me at Second Reading. However, if we are now debating what is in essence a draft, it might be helpful if we could have a wider explanation of why it has been produced in this form. I am not as well versed as the Minister in employment law, although I declare an interest as a partner in the law firm, Beachcroft, where many of my colleagues are.
As I understand it, this is not a replacement code, but a new one that echoes the content of previous codes. It would be helpful for us to get an analysis of what this has been produced from, the extent to which it is still in draft form, and which parts may well still be amended even before consultation. I am not necessarily saying that it would be helpful to have all that today, but it would be helpful if we could have an analysis of the arguments for and against before Report.
Tomorrow morning, I am giving evidence to a committee looking at the 30-year rule. The committee was established by the Prime Minister to work out when guidance should be published. I wonder whether the Minister, as he blows the trumpet for Britain across the world, might establish a first and publish the guidance on the draft code he received from his officials. If he wanted to put that on the record, I would be interested to see it.
I asked the Government to do all they could, and they have. They have published a draft code which looks fine in structure, and which will hopefully be not much amended in the consultation. Surely the noble Lord would agree that the Government cannot do any more than that.
The noble Lord, Lord Wedderburn, has misunderstood my point. I was asking for a wider brief on how the code has been produced in its present form so that the Members of the Committee considering it, and noble Lords on Report, might hear the arguments for and against certain provisions which have either been omitted or inserted.
Against that background, we are already told that the code is going to be amended before consultation. Again, it would be helpful to know which parts of this code have led the Minister to say that there will be amendments before consultation. I am not sure that we know which bits might be amended or what amendments are proposed. Again, the Minister will presumably have been told in the guidance he has received which parts may or may not be amended in that form.
I hope that the noble Lord, Lord Wedderburn, agrees with me that I have paid tribute to the Government for producing the code. I just want our debate on it to have a little more substance.
I am learning by the day. The noble Lord, Lord Hunt of Wirral, raises a valid point. The next Grand Committee on the Bill is set for 25 February. The noble Baroness, Lady Wilcox, will be delighted to hear that I shall be here, taking it through.
And me. It will not be 24 or 26 February, I promise you that. By that day—it is an excellent idea—I commit to issuing a letter setting out the background of where we have got to; I hope that will have no problem being subject to any 30-year rule. It will also deal with this being an ACAS code, not a government code. ACAS is, thank heavens, independent and the code’s further amendment will be ACAS’s affair. I am sure that the noble Lord, Lord Henley, knew that when he suggested we amend it. However, we will produce a letter of explanation of where we have got to and why, and how we can deal with this during the passage of the Bill. I further undertake to ensure that a copy is personally delivered to the noble Lord as he catches his 6.25 am from Carlisle.
I thank all those who contributed to the debate. Of course, all of us are grateful to the Minister for getting this draft code out to us as promised. We are pleased that that has happened and I understand the desire to see a text before the Bill finally leaves this House, but that has nothing to do with my amendment. My amendment was simply designed to ensure that Clause 3 should be amended to read:
“In subsections (2) and (3), ‘relevant Code of Practice’ means a Code of Practice issued by ACAS under this Chapter”.
We wanted “by ACAS” added to that clause. We did so because there will be code of practice from ACAS.
I understand that the noble Baroness is about to withdraw the amendment and I wanted to say something before that. If this is an ACAS code—and I have now seen a copy of the letter that mentions it—why does it not say that? For people like me who received only the draft and no correspondence, why does it not say that it is an ACAS code?
That is an excellent point.
To deal with another point before closing, my noble friend is absolutely right: the point at issue is whether the employment tribunal should take into account anything other than a code issued by ACAS. On disciplinary and grievance procedures, there are two other statutory ACAS codes and three Secretary of State-issued codes that have nothing to do with ACAS. There is also an ACAS code of practice relating to disclosure of information to trade unions for collective bargaining purposes and an ACAS code of practice for time off for trade union duties and activities. There are also industrial action ballots and a notice to employers on picketing, access and unfair practices during recognition and derecognition ballots. All of those would be taken into consideration when tribunals were coming to conclusions, not just the specific code issued by ACAS.
I hope that we are not straining at a gnat here, but we want to ensure that as much information as possible gets into the process as early as possible so that we end up with early resolution of grievance and do not allow something to be inflamed to the point of disruption in the workplace. We should not allow my former profession to earn any more money than they have to.
I can deal with that straightaway. The Government are not dealing with the consultation. ACAS will deal with the consultation. I am thinking aloud, but the reason for the confusion that has taken up so much time and detracted from debate of the point at issue is that my noble friend Lord Bach got the code out to the Committee early today. It was clearly not early enough for some Committee Members but early enough to enable the conversation to take place this afternoon. However, in that haste we failed to make clear the process by which that document will be consulted on and possibly amended. It is an ACAS document not a government document.
Again, I thank everyone who participated in the debate, but I return to the point that I made earlier. My amendment was very simple. We wanted to define the relevant code of practice in the Bill as the one issued by ACAS. My noble friend the Minister pointed out that that would be too restrictive from the Government’s point of view and that other codes should be taken into account. I am not certain about that and we will have to think about that between now and Report, but I understand what he was saying and, in the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
8: After Clause 3, insert the following new Clause—
“Time for completing disciplinary and grievance procedures
(1) There is no minimum time for conducting disciplinary and grievance procedures.
(2) An employer shall conclude disciplinary and grievance procedures not more than three months from the date the employee was notified of the disciplinary matter or, as the case may be, the date the employer was notified of the grievance.
(3) A disciplinary or grievance procedure shall be deemed to have been concluded when the employer’s decision and reasons for the decision have been given to the employee.
(4) The time limit for completing the procedure may be extended if the party wanting to extend it notifies the other party giving reasons for the extension, and the proposed period of the extension, and the other party agrees.
(5) A party shall not unreasonably refuse to agree to an extension of time requested by another party.
(6) All parties shall try to co-operate with the other in satisfying requests for information and arranging and attending meetings that are a part of the process.
(7) Where, during a disciplinary process, the employee subject to that process notifies the employer of a grievance that is related to the disciplinary matter, the disciplinary process or a related matter, the disciplinary process may be suspended and resumed after the employer has addressed the grievance.
(8) Where, during a grievance process, an employer notifies a grieving employee that he or she is subject to disciplinary proceedings, any disciplinary sanction that might be imposed as a consequence of those proceedings shall not be imposed unless and until the grievance procedure has been completed.”
The noble Lord said: I declare an interest as previously having been managing director of a manufacturing company. I do not have any formal experience of dispute resolution. Perhaps that is because I was so draconian that no issues were raised with me while I was managing director, but I hope that it was because we were able to discuss problems at an early stage and address them promptly. Being prompt is the meat of this amendment, which addresses completing disciplinary and grievance procedures within a declared time. We believe that to be desirable in order to speed up the process. At times, there is the bad practice of delaying the process to such an extent that the individual is effectively ground down and justice is denied. The longer these matters last, the higher the level of stress encountered by all parties, which can result in sickness and a prolonged process, which is not good. The longer the process, the less chance of trust and a good outcome. In the amendment, there is provision for the time limit for completing the procedure to be extended if the party wanting to extend notifies the other party giving reasons for the extension to get the other party to agree, so that issue is covered. Where grievance is involved, we also call for a reasonable process for it to be addressed, considered and got out of the way. We wish to encourage an open and reasonable atmosphere and, as much as possible, a prompt resolution to sort out problems quickly and sensibly. This is a straightforward amendment based on the need to get satisfaction, with sufficient time being provided to get the satisfaction without people feeling ground down and unsure in a long process. I beg to move.
I support this amendment, which is tabled in my name and that of my noble friend. It is worth making two points: first, we have no pride in the drafting. We feel the point we are trying to make is dealt with by this amendment, but if the Government were minded to consider this, we have no pride in the drafting itself. Secondly, it is worth drawing to the attention of your Lordships that a lot of representations have been made to us, and where there has been bullying at work, this is felt to be an acute issue. We have a number of cases where this has been a genuine problem in the workplace. This amendment is an attempt to solve it.
I am all for the general idea behind this Liberal amendment, which is that one should go easy on time pressures in order to allow matters to be resolved. However, I am faintly worried by the first five words:
“There is no minimum time”.
Does that also mean that there is no maximum time? Could this go on for ever, or have I misunderstood? I think I probably have; there is the three months in the second subsection.
I agree with the noble Lord that there is a slight area of confusion. As my noble friend Lord Razzall said, we are not sold on the words as such. I think the noble Lord has delved out a problem that I delved out myself when I saw it a short while ago. I think the point is taken that the principles are there. We talk about getting a maximum, and I think the point has been made quite fairly.
I am grateful to the noble Lord, Lord Cotter, for raising this issue. As I said when discussing Clause 1, it is widely agreed that resolving disputes in the workplace as early as possible is desirable for all parties. However, it has become clear that while the principles behind the 2004 statutory dispute resolution procedures were sound, enshrining detailed procedures in legislation has had unforeseen and unwelcome results. We now know that the statutory nature of the dispute resolution procedures has tended to lead to the use of formal processes to deal with problems that might have been resolved informally.
Our fear is that this amendment would introduce a new set of prescriptive requirements for disciplinary and grievance procedures. We do not think such prescription is desirable as it is likely to lead to the same problems experienced with the existing statutory dispute resolution procedures. We are already acting to replace the current statutory procedures with a comprehensive package of measures to encourage and spread good practice designed to help resolve disputes in the workplace early.
As I said when we discussed Clause 3, these measures include a revised ACAS code on disciplinary and grievance procedures. ACAS is revising its statutory code to be principles-based and concise, and it will be accompanied by fuller non-statutory guidance. The accompanying guidance will be designed to provide practical help to employers and employees, bearing in mind what would be appropriate for the size and resources of the employer and the nature and gravity of the complaint. In addition, we are proposing an incentive mechanism whereby a tribunal will have the discretion to increase or decrease an award by up to 25 per cent where a party has unreasonably failed to comply with the procedural provisions of the code.
We believe that the introduction of a revised, concise, principles-based ACAS code of practice on disciplinary and grievance procedures supported by fuller non-statutory guidance and with an incentive mechanism in the Bill to follow the code is a sensible and balanced way of encouraging employees and employers to follow the principles of good practice in the early resolution of workplace disputes without encountering the problems that have arisen with the statutory dispute procedures. Our fear is that this amendment, if carried, would lead to the same problems as were experienced with the existing statutory dispute resolution procedures. Because the statutory code will allow tribunals to consider the appropriateness of parties’ behaviour in the circumstances of the case rather than assessing compliance with the set procedure, we believe that the comprehensive accompanying guidance will provide clarity for employers and employees about what is expected of them. We do not want to be as prescriptive as this amendment would require if it were carried.
I thank the Minister for his response. He has taken on board our concern to get resolution of these matters as quickly as possible. It is encouraging that the Government are doing all they can to spread the message about early resolution. We put into the amendment the possibility of agreement between parties to allow a longer time to be taken. We have addressed an extremely important issue today. When matters drag on, particularly for an employee or somebody feeling threatened, it can be very stressful and difficult and can put a lot of pressure on them to give in where they should not. Having put those points forward and accepting the Government’s intention to do all they can to make promptness the key element, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9: After Clause 3, insert the following new Clause—
“Incapacity in relation to grievance and disciplinary procedures
(1) Where an employee is unable to participate in a grievance or disciplinary procedure because he or she is incapacitated, and where it is apparent to the employer that the cause of the incapacity might be related to an occupational factor, the employer shall conduct or, as may be appropriate, review a risk assessment in accordance with the Management of Health and Safety at Work Regulations 1999 (S.I. 1999/3242) to establish the cause of the employee’s incapacity.
(2) If the cause, as established by subsection (1), is related to an occupational factor, the employer shall take reasonable steps to contain and minimise the effects of that cause on the employee.
(3) For the purposes of subsections (1) and (2)—
(a) it will be apparent to the employer that the cause of incapacity might relate to an occupational factor if—(i) the employee, or a medical practitioner by whom the employee has been examined, informs the employer to this effect, or(ii) if an impartial observer would reasonably believe the cause of the incapacity might relate to an occupational factor, and(b) “incapacity” means a physical or mental impairment, which has a substantially adverse effect upon a person’s ability to carry out normal day-to-day activities.”
The noble Lord said: Amendment No. 9 relates to a small but key point. It relates to incapacity in relation to grievance and disciplinary procedures; it draws strong attention to the need for risk assessment. In theory, a risk assessment should be done on all risks that can potentially harm employees, so it should ensure a safe working environment. Here, we are talking about where an employee is unable to participate in a grievance or disciplinary procedure because he or she is incapacitated and it is apparent to the employer that the cause of the incapacity might be related to an occupational factor. The employer should conduct, as may be appropriate, a risk assessment to cover this issue. In theory, a risk assessment should be done on all risks, but we feel this particular area needs addressing. It can be a great detriment to a potential employee. I beg to move.
Can the noble Lord expand? I do not understand what he is trying to do. Surely an employer would have to conduct an appropriate risk assessment if there was something that prevented an employee doing something at work or coming to discuss the problem. Can the noble Lord take us a bit further?
Does this cover people who develop the incapacity after they have ceased the employment? In my tribunal experience, there were a number of cases where someone claimed to have an incapacity not during his time at work, but after he had left. Very often, the employer sent someone around to find that person in his home—sometimes, happily, to see whether he could do anything to help him, and other times just to check whether the person really was incapacitated—and the person could not be found, so the whole proceeding was delayed for a long time. Is this amendment designed to cover that sort of case?
I am a little puzzled about why the noble Lord, Lord Cotter, is moving this specifically related to the middle of a grievance or disciplinary procedure. Any employee who becomes incapacitated when there is a reasonable suggestion that the incapacity might be related to the working environment requires investigation by the employer. I am not quite sure why we need a specific clause saying that if that happens during a grievance or disciplinary procedure, the employer should investigate. The onus is surely on the employer to investigate any time there is incapacity related to the environment.
That is a fair point. When an employment Bill comes forward, people take the opportunity to get into it items that are perhaps not otherwise covered. I accept the argument that these amendments do not necessarily logically fit into these provisions in the Bill. Nevertheless, we feel that these are important issues. This amendment is trying to get at the point that quite often when someone is at home because he is involved in a grievance or disciplinary procedure because he has not come to work, it is because some form of bullying in the workplace has made him stay at home. We have no pride of drafting in this amendment, but we think an obligation should be put on an employer that when an employee has stayed at home, and as a result may be involved in some form of disciplinary or grievance procedure, there should be an obligation on the employer to carry out a risk assessment. This is not necessarily the logical place to put this in the Bill, but when we are faced with the 28th piece of employment legislation since 1997, we want to seize the opportunity to add little bits when we think they might be useful.
The Government understand the concern of the noble Lord, Lord Cotter, regarding the difficulties faced by employees whose attendance at grievance or disciplinary procedures may be hampered by an incapacity caused by their work, and we are grateful for the chance of a short debate on this point. However, we do not believe that the amendment would help resolve any outstanding difficulties because, as has been hinted at in this Committee, the steps it requires are, in effect, already contained in existing health and safety law.
Employers are already required under the Management of Health and Safety at Work Regulations 1999 to carry out risk assessments to determine what they need to do to protect their employees from health and safety risks. They also have to go a stage further and review those assessments if they have reason to think they are no longer valid, and the regulations’ approved code of practice makes it clear that, among other things, employees suffering accidents or ill-health should trigger a review. The approved code of practice has statutory force, so the legal basis for action is already there. We also need to bear in mind that risk assessments are aimed essentially at determining measures to prevent future harm; they are not designed to deal with such matters as establishing the cause of an employee’s incapacity or, for that matter, ensuring his equality of access. We believe that any remaining problems regarding incapacitated employees attending their grievance and disciplinary procedures will not be resolved by a further addition to health and safety at work law, as this amendment proposes. I hope that the noble Lord will be satisfied that the existing law covers the situation he has raised with the Committee.
I thank the Minister for his courteous response. As my noble friend Lord Razzall said, we are taking this opportunity to bring forward this issue and to express concern about those who are incapacitated. The Minister has reassured us that this is covered by health and safety, but we raised the issue to identify a possible problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10: After Clause 3, insert the following new Clause—
“Statutory sick pay
(1) An employee shall not suffer any loss of entitlement to statutory sick pay if the employee has been placed at a substantive disadvantage due to the resolution of either—
(a) a grievance procedure, or(b) a disciplinary procedure.(2) Subsection (1) applies when a grievance or disciplinary procedure relates to—
(a) an employee’s absence and statutory sick pay, or(b) a disability as defined under the Disability Discrimination Act 1995 (c. 50) and the absence can be shown to have been related to either the initial cause or process of resolution of such a procedure.(3) If an employee’s loss of entitlement to statutory sick pay is related to—
(a) the number of available days for statutory sick pay being less than 14, excluding linked sick days,(b) a fixed contract length being exceeded, or(c) the employee cannot provide reasonable evidence that the health issue is work related,an extension of statutory sick pay shall be treated under normal statutory sick pay rules and not as an exemption on maximum number of days entitled.”
The noble Lord said: This is third in the series of amendments tabled by my noble friend Lord Cotter and me. I suspect that this is the one that stretches the envelope of the Bill almost to its elastic stretching point. Nevertheless, I will have a go. The peril that this amendment deals with is a situation that often occurs in the workplace where a person is unable to deal with a grievance or a disciplinary matter due to a health condition that has been brought on by the events that have led to the grievance or disciplinary procedure. This is an attempt to deal with that situation, which often occurs in harassment cases where the victim, as part of the grievance or disciplinary procedure, has to face the alleged harasser. That may cause psychological manifestations: anxiety, fear-based conditions or post-traumatic stress symptoms. This is an attempt to deal with a situation that often occurs in the workplace. The Minister will no doubt say that whatever the merits or demerits of the point—again, I say that we have no pride in the drafting—the Bill is not the place to deal with it. Nevertheless, I have tried, and the envelope has not yet popped. Whether it pops when the Minister rises to his feet, we shall see. I beg to move.
Many years ago, in 1990 or 1991, a statutory sick pay Bill that went through this House. The noble Baroness, Lady Turner, might remember it. I was the hapless Minister taking it through. At the time, I knew a great deal about statutory sick pay and I think for a time I even understood it. But like the Schleswig-Holstein question, it has all disappeared from my mind. I always even then found statutory sick pay to be one of the more complicated benefits. I have a sneaking suspicion that the noble Lord, Lord Razzall, is probably right when he says that he is stretching the envelope somewhat in trying to include this in an employment Bill, but I admire his gall in trying to do so. I will also listen with interest to the Minister’s response, and I hope that some of what I used to know about statutory sick pay, and possibly some of what the noble Baroness, Lady Turner, used to know about it, might return to us as we listen.
The Committee can say that we are genuinely grateful to the noble Lords, Lord Razzall and Lord Cotter, for raising these issues. While this may be to one extreme, I do not think that any harm will be done by having a short debate on this matter. It is also extremely helpful to the noble Lord, Lord Henley, as it will bring back happy memories of when he sat where I do now. I do not think that my noble friend Lady Turner needs any help with this, because she knows all about statutory sick pay and has done since the previous Bill went through.
Statutory sick pay is payable to employees for up to 28 weeks of incapacity for work. Employers have a statutory liability to pay statutory sick pay to qualifying employees who are incapable of work under their contract of service. The scheme is well established. Employers are fully responsible for the cost and operation of the scheme. The Department for Work and Pensions has policy responsibility, and it is policed by Her Majesty’s Revenue and Customs. HMRC makes formal decisions to resolve disputes between employers and employees. It is also responsible for imposing penalties on non-compliant employers.
The noble Lord is seeking to extend the payment of statutory sick pay beyond the conclusion of a contract for those employees whose contract is ended as a direct result of the resolution of a grievance or disciplinary procedure. In those cases, employers would be required to pay statutory sick pay for the full 28 weeks, despite the fact that there is no longer any employee/employer relationship.
We do not think that it would be appropriate to deviate from the fundamental principle that only employees are entitled to statutory sick pay. Entitlement is brought to an end with the conclusion of a contract. To do as is suggested would not only entail additional costs for an employer but would involve him in needing to determine an employee’s incapacity under a contract that is no longer in existence. The noble Lord, Lord Razzall, may say, “But what happens if this is being done deliberately by the employer to escape his responsibilities?”. That is at the heart of the amendment. The Statutory Sick Pay (General) Regulations 1982—I do not know whether the noble Lord, Lord Henley, dealt with those regulations—specifically provide protection for employees whose contract of service has been brought to an end by an employer solely or mainly to avoid statutory sick pay liability. In those circumstances, the law provides that liability to pay statutory sick pay remains with the employer until that liability ends for some other reason. Similarly, should statutory sick pay come to an end but an employee’s incapacity continues, that employee may have recourse to financial assistance through the benefit system.
The provision needs to strike a balance between fairness to employees and keeping burdens on employers—in terms of cost and complexity—to a minimum. If the amendment were accepted, it would tip the balance too far in favour of employees and against the needs of employers. Although I am grateful that the issue has been raised, existing law deals with the dangers that have been mentioned.
I am grateful to the Minister for his response. I appreciate that the regulations that he referred to deal with part of the peril for the employee that the amendment was intended to deal with. However, it does not deal with the other situation in which someone is subject to a disciplinary or grievance procedure in relation to an event that has made them ill and in relation to which they are timed out on making an application to a tribunal. That is the practical difficulty that often arises in harassment cases. I will read with interest in Hansard what the Minister said, and I am glad that we had the opportunity to air the issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Determination of proceedings without hearing]:
11: Clause 4, page 4, line 15, after “consent” insert “in writing”
The noble Baroness said: I will speak also to Amendments Nos. 12 and 13, which are grouped with this amendment. This is a series of amendments dealing with stand-alone cases, which are the kind of cases that the judge hears alone without the lay members of a tribunal being present. The employment judge can hear case management discussions, pre-hearing reviews and certain types of claim sitting alone. However, if the case involves any dispute of fact, as it often does, particularly where the case involves a dispute between the parties, usually between an employee and an employer, it ought to be heard by a full tribunal on which lay members sit.
I understand from some people I know who sit on tribunals as lay members that the number of full tribunal sittings has been diminishing and more and more cases are being heard by a judge sitting alone; a so-called “fast track” procedure. I am grateful to the Minister for the very detailed assurances that he gave on the situation relative to lay members. We were very grateful for that, and I record that in this connection. But as far as the stand-alone process is concerned, it is frequently argued that this can only take place now with the consent of both parties. The problem with that is that we do not always know how the parties reach that consent. The idea of the amendments is to make sure that if an individual agrees to a stand-alone type case, he or she knows what it is about and his consent has been properly obtained, which is why we suggest that consent should be in writing. We also say that,
“the consent of any such party … shall be valid only after he has had a reasonable opportunity to take independent advice on the matter”.
In other words, if an individual consents to his case being heard under stand-alone fast- track procedures, that individual should have made an informed decision to that effect. I hope that the Government will be prepared to accept the amendment, because in drafting the amendment we have tried to come to terms with what we believe to be the desire of the Government—to have more and more stand-alone cases where this can be reasonably, effectively and fairly administered and handled. On the other hand, we want to make sure that those people who opt for stand-alone cases know what it is about, give their consent and have access to independent advice before they enter into that process. I hope that the Government will be prepared to accept the amendment, which I stress is intended to be helpful. I beg to move.
This is a very interesting amendment and in many ways I am very much for it. However, I am concerned about the point that the noble Baroness made about informed consent and having been able to consult someone. That was one of my major worries during my time in tribunals. People set themselves up as “employment consultants”—I suppose that I could describe them as cowboys. They found their clients the moment that the case was filed, because it is on public record. It used to be that if they went to Bury St Edmunds they could see the total case—every word of it; now that it is all on line they can probably only get the name, address and contact. Even so, they then tout for business, and very often the person approached by those consultants has no idea that they are not an authority on anything and have no real experience or understanding of the case. We saw case after case in which self-appointed so-called experts did very badly for their clients. They were not legally qualified, but the person employing them had no idea whether they were or not. The legal qualification may not be so necessary—and now these people are regulated. If you receive a fee, you are meant to be regulated. But there is still no way in which to confirm for the simple-type applicant that the person is or is not registered; they do not know that they are supposed to be, so they do not check.
That really concerns me. It is very important, with a proposal such as this one, in situations where people are relying on independent advice, that there should be a clear way in which to establish that the independent advice is at least soundly based.
What the noble Baroness has just said makes me realise that with our customary moderation we have gone much too far with our amendments.
I shall make two points, first on Amendment No. 13 and then on Amendment No. 12. Amendment No. 13 should probably be couched in terms that an employee’s consent is valid only when he or she has taken independent advice of someone with suitable qualifications. That appears elsewhere in employment law, but the thing has got so complicated these days that I could not find it in the Butterworth guide. Somewhere we have a definition of qualified advice for similar purposes, I am sure, and no doubt the Minister can tell me where it is. At any rate, Amendment No. 13 is much too modest and timid. An employee’s consent should not be valid when he or she has just been leant on or advised by someone who is not at all competent to give the advice. Consent should be backed up by qualified independent advice—and I am sure that we will look at that very carefully before Report.
Amendment No. 12 is much more suitable to Committee. I just do not understand why lines 17 and 18 are in the Bill; the amendment suggests that they should be omitted. I refer to new subsection (3AA)(b), which tells us that,
“employment tribunal procedure regulations… may only authorise the determination of proceedings without any hearing… where—
(a) all the parties to the proceedings consent”—
and we have just said that it must be real consent and properly advised; and,
“(b) each party to the proceedings has the right to request a hearing.”
I do not understand what that adds. When a party consents to the determination without a hearing, if properly couched, the paragraph would take effect; or each party has the right to request a hearing. It is always useful to turn it into a negative: when would the party not have the right to request a hearing? That is a very simple question, and there must be a simple answer which, in my present rather tired state, I have been unable to see. If there is no answer, the paragraph should be omitted because it does not add anything.
Perhaps I may also throw in a couple of questions that are directed at the movers of this amendment. Amendment No. 13 refers to taking “independent advice”, but the noble Lord, Lord Wedderburn, following the intervention made by my noble friend about cowboys, referred to “qualified independent advice”. He said that he could not find the reference, but no doubt the great professor will find it for us in due course and let us know.
In the late 1980s, when I was called to the Bar, there was a body called the Free Representation Unit, which was composed mainly of those who had just been called to the Bar, young barristers in their pupillage. They offered their advice free, very often to people going to tribunals of this sort or to the whole range of other tribunals that are around. I do not know whether that body still exists.
The noble Lord, Lord Borrie, says that it does, but does so in a manner that implies it has caused him some trouble in the past. If such a body still exists, perhaps the noble Lord, Lord Wedderburn, could say whether it would qualify as “qualified independent advice”, should it be included.
What has been put forward is trying to be helpful, so I hope that the Minister will accept it, particularly again as supporters come from all sides. In fact, one might say that it has been strengthened, because we now get into the realm of people who should not be giving advice and are giving advice only to make money out of those who absolutely need the best professional advice available to them. If we can take this further and stop that in any way, I am sure that that would be helpful, particularly to the parties concerned. I hope that we will get a positive reply from my noble friend Lord Bach.
I agree with some points made by my noble friend Lord Wedderburn on proposed new subsection (3AA)(b) of Section 7 of the Employment Tribunals Act 1996, which seems to be redundant. On the Free Representation Unit, almost every day I pass a notice which refers to it when I leave my home in Temple. I assure the Committee that it exists. Because of the important points made by the noble Baroness, Lady Gardner of Parkes, it seems to me that if the phrase “independent advice” was modified by an additional word, “qualified”, that would be satisfactory.
I am grateful to my noble friend Lady Turner of Camden for moving her amendment. I could not help but overhear her concern earlier that the Government were not in a very giving mood so far today. I told her to wait. I do not think that she will think that what I am about to offer her is a huge concession, but I know it will be appreciated for what it is.
Our consultation on resolving disputes in the workplace sought views on the best approach for dealing swiftly and effectively with straightforward monetary disputes. The consultation responses produced strong support for developing further the good practice which already exists within tribunals. The Government intend to exercise their existing powers by which employment judges may determine proceedings without a hearing. The rationale behind this proposal is to enable claims in certain limited jurisdictions to be resolved more quickly, potentially saving time and costs for all parties and, incidentally, enabling those with more significant, complicated claims to have their cases heard sooner rather than waiting for the simple claims to be heard at the present rate.
My noble friend refers to the Minster’s existing powers. That power was inserted by the 2002 Act. Many of us were unhappy at the amendment to the Bill in 2001 to that effect. I agree that there are existing powers, but too much stress should not be put on them, as though they had existed since the year dot; they were new powers in 2002.
Amendment No. 11 would establish a requirement that positive consent to a determination without hearing should be made in writing by all the parties. The proposal carries logic with it, inasmuch as it presents clarity and certainty about how the parties wish the determination to proceed. Amendment No. 11 is worthy of further consideration.
I ask that Members of the Committee only speak from a standing position. It makes it extremely difficult for the Hansard reporters to identify who is speaking if Members of the Committee speak from a sedentary position. Thank you.
Before reaching any final conclusion on that point, I turn to Amendment No. 12, which would remove from the Bill the option for the regulations to provide that determinations without a hearing can be made where the parties are informed of their right to request a hearing, but that their consent to the process will be deemed if they do not exercise that right. Voices have expressed a firm view that that part of Clause 4 adds nothing. The regulations will be consulted on. The clause provides that rules can provide either for positive consent—that is clear in the Bill—or for deemed consent if a hearing is not requested.
The Government received strong support for establishing an efficient but swift system for dealing with simple monetary claims, and are continuing to develop, in consultation with users of the system, a model which is both effective and accessible for all parties. The detail of how that system will be managed will be established through the tribunal rules, which are not before the Committee tonight. As such, it would be unwise and inconsistent with its objectives for this clause simply to limit the way in which tribunals may manage that process in future. The fast track will be an important and valuable mechanism for ensuring effective but expeditious determination of proceedings. To achieve that aim, we propose that, in a limited number of jurisdictions, an employment judge would write to the parties informing them of his or her view that their case would be suitable for determination on the basis of documents, but that they have a right to a hearing.
If they do not write back and exercise that right, a written determination would be made. If any of the parties does request a hearing, of course the case will be heard before the tribunal in the normal way. The Government’s proposals address any concerns about access to justice by expressly qualifying existing legislation to specify that if either party wants a hearing, a hearing will take place as at present. I do not think that I could be clearer on that fundamental principle.
The Government intend to consult interested parties before any revision of these tribunal rules takes place. I assure the Committee that this will take account of views on how the tribunal should establish the party’s consent to a determination without hearing. On that basis, I am prepared to consider acceptance of Amendment No. 11, providing that the option for the regulations to prescribe consent to determination without hearing should be in writing. I thank my noble friend Lady Turner for having raised the issue.
Perhaps this is the fault of the grouping, but I shall refer to Amendment No. 12, on which the Minister has just spoken. He said that when there was no consent in writing—and we must be grateful for such crumbs as we can get—paragraph (a) would not apply. Paragraph (b) would apply when there might be a right to request a hearing but there was deemed consent to having a judge alone. Incidentally, I notice that we have slipped into using the term employment judge; I take it that we mean the chairperson of the tribunal. The Ministry of Justice now insists that we call that person an employment judge, which is not an improvement. When that person notifies an employee that they have a right to request a hearing and nothing happens, the employee is deemed to consent to a jurisdiction which, before 2002, did not exist. There is a great deal of literature to suggest that it should not exist and that the tribunal should determine matters with all three members playing their equal part.
Such reassurances as we have had on the Government accepting the equal status of all the members of the tribunal begin to be questionable. I am not questioning their good faith in the matter, simply the logic of the thing. Now we see that the Bill will give the chairperson the right to send a letter to an employee to say that they have the right to request a hearing. Then nothing happens; perhaps the employee lost the letter or was persuaded by his in-laws not to reply to official letters. The Bill must really be amended, if that is what it means. If it means that each party to a procedure has the right to request a hearing but may make no use of that right, the Bill should say so. We cannot just leave it to chance that the regulations will say what my noble friend said that they will say. I am sure that he wants the regulations to say that but the Bill specifies, importantly, where judge-alone sittings of the tribunal will be allowed. Paragraph (b) must at least take a different form if that is what the Government mean.
There is widespread concern among practitioners and members of tribunals that there is an intention somewhere, whether in the Ministry of Justice or the Department for Business, Enterprise and Regulatory Reform, or some Civil Service policy, to have lots more sittings of legally qualified chairmen alone. The insistence that this paragraph should stand as it is in the Bill does nothing to diminish that worry. Surely my noble friend would agree that at least paragraph (b) should be recast in its language.
I would like to comment on deemed consent, which can be a very dangerous provision. I can recall many cases in which someone claimed that they never received a letter of any sort. In magistrates’ courts, very often the first thing that a person knows is when they get a judgment through the post, and they never heard anything before that; and it could be the same in the tribunal. In the magistrates’ courts, you have the right to have a case reopened because it was judged on a deemed consent. I hope that if there is a provision for deemed consent there will be a similar provision in this case.
May I put a question to the noble Lord, Lord Bach? After his explanation and after hearing my noble friend Lord Wedderburn, it seems to me that paragraph (b) only makes sense if it reads, “each party to the proceedings has the right to request a hearing but has decided not to exercise it”. Only then is it equivalent to deemed consent. As it stands, the wording makes it look as though paragraph (b) is redundant; but the Minister explained that it is not meant to be redundant and explained deemed consent, but the wording is not appropriate.
I think noble Lords have a point about the wording, and I would like to take that back. I have tried to explain what we mean. I do not agree with my noble friend Lord Wedderburn on this occasion about deemed consent being somehow a step too far. There will always be a remedy for someone who legitimately did not receive a letter asking whether he consented. Later he can come back and say that he did not receive the letter and he wants the tribunal to have three members and not one, so his consent would be necessary. Deemed consent, as well as consent that is expressed, seemed to us to be the best alternatives to get justice done quickly in monetary claims. I am not saying that they are not important, but they are not the most difficult or sophisticated of tribunal claims. As the noble Baroness, Lady Gardner, knows, some of them are very difficult claims and should not be heard by a chairman. If that satisfies the noble Lord, Lord Wedderburn, I have done my best to respond. We will look again at the wording of Clause 12, but I think we will want to have something in there, whether it is these words or other words. We will come back to it.
If my noble friend does not wish to give way, he has every right not to do so. I simply wanted to ask him whether he realised that, from the point of view that we have put forward about deemed consent, having it spelled out in paragraph (b) would make the Bill worse, not better.
I am sorry; I thought my noble friend was asking me to spell it out.
Amendment No. 13, would ensure that a party’s consent to a determination without hearing should be given only after he has had a reasonable opportunity to take independent advice, which is an entirely laudable and sensible proposition. The difficulty is in quantifying a reasonable opportunity for a party to seek that advice. When we discuss Amendment No. 14—which I hope will be shortly—it is our intention to establish in the tribunal rules that parties would be given at least 21 days in which to exercise their right to a hearing of their case. That period will provide the opportunity for parties to seek independent advice, and it should also be open to parties to decide not to seek independent advice, which could have cost and time implications. Although I have, as it were, given way on Amendment No. 11, I think the noble Baroness can see that we are attracted by Amendment No. 13, but she will hear us argue that we want to do that through the tribunal rules rather than in the Bill.
I thank the Minister, and particularly the noble Baroness, Lady Gardner, for her comment which is absolutely well founded. I am grateful to her for putting that before the Committee.
We have been told that the Government accept Amendment No. 11, so—
14: Clause 4, page 4, line 18, at end insert—
“(3AB) Where, under regulations made under subsection (3A), a tribunal proposes to determine any proceedings without a hearing, it shall give notice to the parties not later than three weeks before the date of the proposed determination.””
The noble Lord said: In view of what my noble friend has just said about 21 days, I do not now intend to move Amendment No. 14.
[Amendment No. 14 not moved.]
15: Clause 4, page 4, line 18, at end insert—
“(3AB) No regulations shall be made under this section which allow for the determination of proceedings without a hearing in respect of any claim of which the ground, or one of the grounds, is—
(a) specified under any of the jurisdictions referred to in section 3(3), or(b) such other grounds as the Secretary of State shall prescribe by order following consultation with ACAS,and in respect of which the respondent denies liability.””
The noble Lord said: The amendment was allocated to me, and is rather important. As I understood it, my noble friend the Minister said that tribunal hearings held by the legal chairman alone, as I still wish to call him—as I am sure that the noble Baroness, Lady Gardner of Parkes, would agree—will apply only where there is a straightforward monetary dispute. A straightforward monetary dispute is what I understood my noble friend to say—I will have to look in Hansard to see.
First, I cannot find that anywhere in the Bill. That is an important point. The amendment is an attempt to limit Clause 4—one’s memory is made redolent with the words “Clause 4” on this side of the Committee. The amendment attempts to say that where there is an issue under one of the jurisdictions in Section 3(3), or,
“such other grounds as the Secretary of State shall prescribe”,
which we naturally put in in case we had forgotten something, in respect of which the respondent denies liability, no regulations should bring Clause 4 into effect. That would limit hearings heard by the legal chairman alone to cases where the only issue was not liability but compensation. I took it that that was what my noble friend wanted in the Bill. So this is a helpful amendment for the Government to say what they want the Bill to prescribe: cases where the regulations must not be made to bring Clause 4 into effect in respect of which the respondent denies liability. It is not perhaps the best drafting, but we do not have to worry too much about the semantics of exact drafting in Grand Committee. I wonder whether my noble friend would extend his gracious move on Amendment No. 11 to Amendment No. 15 and consider it. It seems to be what the Government want. I may have that all wrong, and, if so, the Minister will explain why that is so. I beg to move.
Amendment No. 14 seems to cover part of the point I was making. However, one needs to add something because there is nothing to say that the letter telling you that your case will be determined in three weeks will not reach the applicant either. We would still need the other provision. If the decision were made—
I support Amendment No. 15 because it deals with some points that I made in my original submissions on the previous amendment. I tried to indicate those areas where it was acceptable that there should be a proper hearing. It is necessary to spell that out in the Bill and to make it absolutely clear that there can be a situation where it is necessary for there to be a full tribunal hearing, and no regulation should be made in certain areas to allow for fast-track, individual hearings in the way that was discussed earlier in some of these situations. If there is a disputed issue, where the parties cannot agree and major issues are involved, it is necessary that there should be a full hearing. I hope that the Government will be prepared to accept that. I think it is in line with what the Government proposed originally.
Earlier in Committee we spoke to amendments that looked at the introduction of this fast-track system within the tribunals and emphasised that its purpose will be to promote and to settle claims made in straightforward cases and in limited jurisdictions.
The emphasis here is very much on simple cases where it would be beneficial for both parties to resolve the issue quickly and efficiently. That does not necessarily mean uncontested cases; they can already be dealt with in a different way. Over 70 per cent of respondents to the Government’s consultation supported this approach and many put forward arguments for jurisdictions which should be included.
On the strength of these responses, the Government proposed that the jurisdictions eligible for the fast-track system would be as follows: unlawful deductions from wages, breach of contract, redundancy pay, holiday pay and the national minimum wage. Claims falling within this narrow band that are combined with other jurisdictions will not be eligible for the fast-track process.
Amendment No. 15 seeks to debar tribunal regulations from determining proceedings without a hearing in respect of any claim pertaining from grounds specified under any of the jurisdictions referred to in Clause 3(3) of this Bill, or indeed such other grounds as the Secretary of State shall prescribe by order following consultation with ACAS, and where the respondent denies liability. The system we propose will deliver swift and effective justice and help many claimants to receive redress early, potentially relieving them from hardship and uncertainty and will move other cases up the list. Respondents will also benefit from having cases determined at an early stage, freeing them to concentrate on their businesses.
Amendment No. 15 would undermine the nature and purpose of the fast-track system, which we intend should be able to deal with cases including those where the respondent contests liability, and would act contrary to the best interests of all parties. It will always be open to the employment judge—the chairman—on his own initiative, of course, to decide whether a case, even if it falls into these jurisdictions, is better suited for a hearing with a full tribunal. The parties will always have the right to request a hearing. Rather than the amendment of the noble Lord being helpful to the Government, it is not what the Government intend.
I understand what my noble friend has said. The Government do not intend that single-chairman hearings should be limited to straightforward monetary disputes. I got that quite wrong. I thought that was what he said, but it obviously is not. My shorthand is not good enough to take down what he said but, as I understand it, he spelt out, I think, five jurisdictions where the single-chairman hearings are supposed to operate. I am quite certain that two of those were breach of contract hearings and national minimum wage hearings. Where there is a dispute on the issues, I cannot imagine jurisdictions that are more important.
I understand what my noble friend says, but we have already established that consent will include deemed consent. I suggest that our worries about that are added to our worries about the type of case where “deemed to consent” will operate. A worker who does not think that he has the national minimum wage award that he should have may be deemed to consent to a single-chairman hearing and that is the end of it. I do not suggest that single-chairman hearings always get it wrong, but I am suggesting, as I suggested at the very beginning of this afternoon's proceedings—
I am sorry to interrupt my noble friend again, but he raises an important point. As I understand it, in the normal course, a single-chairman hearing will be in the presence of the claimant and the respondent. If the consent that was thought to be deemed is not existent, all the claimant has to do is to say to the chairman, “I don't agree with you hearing this on your own; I want to have the tripartite system”. The deemed consent would only bring the claimant to the tribunal, but if he were then to make it clear that he was not happy—as no doubt he would if he were unhappy and he was not giving his consent—no hearing would take place until there were lay members and the chairman.
I am not sure that we are not going from Alice’s Adventures in Wonderland to Through the Looking-Glass. What a lot of time that will waste. We have the tribunal, a letter has been sent or some step has been taken and the worker is deemed to consent to what we now have to call a “qualified chairman alone”, but just when we have everyone together for the hearing and the determination, the worker pops up and says, “No, no, my deemed consent is all wrong”. Then they have to get three members of the tribunal together to hear it, no doubt on a different date because employment tribunals have a lot of work. Sometimes it is difficult to find a date, as I am sure the noble Baroness, Lady Gardner of Parkes, would agree.
I have misled the Committee—and I apologise particularly to my noble friend for innocently doing so. If there is consent or deemed consent, the hearing would be by the chairman on the basis of the papers that he had in front of him. I have to make that absolutely clear. I apologise to my noble friend for having got that wrong. I needed to say so at the earliest moment.
I am grateful to my noble friend, but we are definitely now in Alice Through the Looking-Glass. Things get worse and worse. The more that we prod on this, the more we justify the grave concerns of the association of lay members of tribunals, which we heard earlier this afternoon. Despite the way in which the Bill does not prescribe it, we thought that this fast-track procedure would be very limited in character. I shall not try to repeat it in case I get it wrong—I shall read it in Hansard—but I believe when Members of the Committee read what my noble friend has just said they will find that the possibilities of single-chairman hearings will become very extensive indeed. That was the worry that we always had about Clause 4.
I take everything that has been said about consent, but we have not made much progress on that matter. We only got an undertaking to look again at written consent, and there is insistence that it will include deemed consent, which is a concept that I find quite repugnant, no matter what advice people have had. Now we are told that when there is deemed consent, the worker cannot pop up at the hearing with the judge alone. He does not have his day in court, as my noble friend Lady Turner said on a previous occasion. If that really is the situation, I shall find it very difficult to lend my support to the Bill with that width of fast-track procedure. As I said, I could not write down all the jurisdictions that it will apply to. I thought there were five but, if there are only five, that should be in the Bill.
If the provision is going to be limited to those five jurisdictions, why are the Government so coy about telling us that in the Bill? I hope that my noble friend can give us some reassurance about that list of jurisdictions this afternoon, because he must know the Government’s intention. Do they intend that it applies to breach of contract, national minimum wage and three other jurisdictions that I think I could specify but cannot do so confidently because I did not write them down?
Will my noble friend tell us that he will go away and reconsider the wording of Clause 4 and written consent, as he said he would? Will he consider new subsection (3AA)(b) to make it clear that the Government include deemed consent? We do not like that, but if it is going to be in the Bill, it had better be stated. Will he also consider whether it would be right for Parliament to say that you cannot have a proper employment tribunal but only a one-person decision if you have deemed consent to this matter? What is he going to say to the association of lay members of tribunals when it says—as it has said—that it is very concerned that the whole nature of employment tribunal justice is going to change? I do not say that the association is absolutely right in its concerns, but it has a very good case, much stronger than before we considered the Bill this afternoon. It is very worrying indeed.
I have to admit that the argument has taken such twists and turns that I am not sure where I am. I think that I am on Amendment No. 15, which the Minister has shown could not possibly be accepted by the Government. He has shown that it raises enormous problems, which I had no idea existed when we first came to the Bill today. I suppose that the correct step for me to take is to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Before the Deputy Chairman calls Amendment No. 16, may I ask the Government about their plans for timing. My noble friend Lord Hunt of Wirral has been waiting for some time for his amendment. Obviously, we will not get to that today, so can I take it that we take just Amendment No. 16 and then draw stumps? I say that, not knowing how long Amendment No. 16 might take, but Amendment No. 17 certainly will take some time. If the noble Lord, Lord Wedderburn, feels that Amendment No. 16 will take some time, it might be better to consider drawing stumps now. I do not know whether that has agreement from others here.
However much my noble friend offers us crumbs, or the whole loaf, Amendment No. 16 will require quite a period of discussion, if only because it is technically deficient. I am sure that he would make that point against it. However, its meaning is extremely important and reflects many of the debates we have already had. If it is the wish of Members of the Committee that I should move Amendment No. 16, I am very happy to do so, but I think that it will take us far beyond the hour that Grand Committee normally sits. I do not know what the noble Lord, Lord Henley thinks of that position.
I certainly support the noble Lord, Lord Henley. If the Government side were to study the proposers of the amendments that will take place later, if their concern is that we will not get through in the second day, they might conclude that their concern would be unfounded even if we were to close—or draw stumps.
I genuinely think that we have made good progress, although the noble Lord might say that we have not. The noble Lord, Lord Razzall, is saying that he is fairly sure we will probably finish on the second day. This Bill was originally put down for three days. We are making good progress and it seems to be the general view of the Committee—I am waiting to hear from the Government—that this might be the right time to stop.
I do not think that it is the right time to stop, with the greatest respect. We should deal with the next amendment. I am very sorry, but I do not think that there will be time for the Committee to hear the amendment in the name of the noble Lord, Lord Hunt of Wirral. I know that he has waited very patiently all day for that. The next amendment should be heard. It is not twenty minutes past seven yet. We should hear this amendment and then adjourn.
16: After Clause 4, insert the following new Clause—
“Mediation where no agreement reached: constitution of tribunal
In the Employment Tribunals Act 1996 (c. 17), after section 17 there is inserted—
“17A Mediation where no agreement reached: constitution of tribunal
Where a chairman or other member of an employment tribunal engages in mediation in relation to a claim made to the tribunal and that mediation fails to reach agreement between the parties, he shall not sit in respect of further proceedings in that matter (including any preliminary hearing) and the claim shall be determined by a tribunal fully constituted to hold a hearing in the proceedings.””
The noble Lord said: The amendment, which I am obliged to move, is about the position of mediation in the proceedings of an employment tribunal. First, mediation is not the same as conciliation. Looking around the Committee, I am quite sure that everyone is sufficiently experienced to understand that. Mediation means that the mediator advances solutions to the parties. Therefore, the intention is that mediation should in future be undertaken by any member of the tribunal who is assigned the possibility of that process in the regulations.
The amendment is technically deficient because the job of being a mediator has already been assigned to any member of the employment tribunal by paragraph 42 of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007. That paragraph inserts a new section in the Employment Rights Act 1996, Section 7B, “Mediation”. It states that any member of the tribunal can act as a mediator in disputes where the case is the subject of proceedings. If Members of the Committee consider where we have got to, an employee or worker brings a claim to the tribunal and, instead of the tribunal all acting in the required judicial capacity, one of them acts as a mediator, necessarily taking sides about what is, or is not, the superior argument and solution to the dispute.
Amendment No. 16 ought therefore to require an amendment of Section 7B of the Employment Rights Act 1996. Members of the Committee may ask how on earth that new section was placed in that Act. Simply, it was put there in your Lordships’ House, without argument or debate, promoted by the Ministry of Justice, which frankly has little knowledge of the realities of employment tribunals. It has made it a requirement that a member of the tribunal—and it is spelt out that it could be the chairman or any other member—should act as a mediator when judicial proceedings have been brought before the tribunal. The only qualification that makes any more sense of this mistaken proposal is that regulations on this point, and this point alone, must be made after consultation with ACAS. Suddenly, the Tribunals, Courts and Enforcement Act brings in ACAS.
It was said to me when I was considering this deep problem, that that paragraph in the schedule is a follow up to Section 24 of the 2007 Act on mediation. That is quite true, but it makes a particular provision about employment tribunals:
“Employment tribunal procedure regulations may include provision enabling practice directions to provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings”.
The final twist in the skein is made by Section 7B(3), which states that once a member has begun to act as a mediator in relation to a disputed matter in a case that is subject to proceedings, the member may decide matters in the case only with the consent of the parties. The difference between that and Amendment No. 16 is that we say that once a member who is there to carry out judicial functions has taken the role of mediator, he or she should not sit in the subsequent proceedings when the tribunal considers the matter. In view of what my noble friend has said, I notice that it is twenty-five minutes past the hour. I wish to move Amendment No. 16, with a footnote that if we come back to this on Report—which we really should because here is a serious innovation to the role of members of employment tribunals—it would have to be with proper drafting that changed the new Section 7B inserted by the 2007 Act. I beg to move.
I declare an interest as, like my noble friend Lord Hunt of Wirral, who declared his interest on Second Reading, I am a mediator accredited by the Centre for Effective Dispute Resolution, also known as CEDR. It seems to me that what the noble Lord is saying is eminently sensible. I fail to see how someone who has mediated in any dispute can later be part of a judicial process that arises from it. In fact, one of the first things that we were taught in the excellent course arranged by CEDR was to explain that anything that you heard at a mediation was entirely private, it would not be passed on or made use of in any way whatever and everything was, as they put it, entirely without prejudice. The thought that a member of a tribunal could mediate and later be on the tribunal seems bizarre.
I agree that even with the consent of the parties it seems to make nonsense of the whole idea of mediation and leaves him in this quasi-judicial capacity, having said at the mediation that anything that he heard at that mediation would, as it were, be erased from his mind and excluded from any further consideration. No doubt we will give the Minister a little time to ponder these matters between now and the next stage. The noble Lord, Lord Wedderburn, says that he will certainly bring this back on Report, and there might be other ways of discussing it again in Committee, since we are being curtailed in the amount of time that we can have on it this evening. In the mean time, we ought to listen to what the Minister has to say, and I leave it to the noble Lord, Lord Wedderburn, on how he wishes to proceed.
I am grateful to my noble friend for raising this issue. The amendment seeks to prevent a tribunal member who has been involved in an unsuccessful attempt to mediate a case from sitting on the tribunal panel which subsequently decides the outcome. The Government believe that this amendment is unnecessary. The Tribunals Service is presently trialling judicial mediation of employment disputes that would otherwise become the subject of an employment tribunal hearing. That trial will be carefully evaluated before any decision is made on whether to continue this activity. In the trial, no judge who has been involved in mediation is then able to play any part in the determination of the case should mediation not succeed.
As recently as last year, Parliament enacted measures that will in effect prevent that from happening in the future. Schedule 8 to the Tribunals, Courts and Enforcement Act 2007 amends the Employment Tribunals Act 1996 to provide:
“Once a member has begun to act as a mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties”.
In a case where mediation was unsuccessful, if it was thought by one party or another that the mediator was unsympathetic to their case or their cause, of course that party would not grant consent to the mediator then being part of the panel. In effect, the consent of the parties is a crucial safeguard that a mediator is not likely to become a member of the panel. We think that that pretty well answers the point and I invite my noble friend to withdraw his amendment.
I am not persuaded. I asked the noble Lord, Lord Henley, a question with due consideration. To act in a judicial capacity is totally different from acting as a mediator. Once you have acted as a mediator, you have taken positions on the arguments. It is incomprehensible to me to understand why the Government would resist, as I have suggested—I would redraft, of course—an amendment to the Tribunals, Courts and Enforcement Act 2007.
I said earlier today that that Act was put forward by the Ministry of Justice without adequate knowledge of employment tribunal matters. It now turns out that the department put it forward without understanding the most basic rule of justice: someone who is to act in a judicial capacity should not have acted in the case before, hearing, as the noble Lord said, matters in private and taking positions. The position is not even as a conciliator, it is as a mediator. The two are totally opposed in their conceptual categories.
The consent of the parties is neither here nor there. Even if the Bill referred to the consent of the parties after qualified advice, I would oppose it, but it does not even say that. They just have to say, “Oh, all right. Get on with it. We know you have acted as a mediator”. They may not understand the arguments at all. I would very much like the Committee to adjourn and consider the matter when we come back, if that is allowed. But if my noble friend opposes that, I shall have no alternative but to beg leave to withdraw the amendment. But I would ask the Government to think about this again. Would they throw aside what I believe has the broad support of the Committee? Would the Minister perhaps go as far as one single crumb of comfort and say, “Yes, we will have another look at it, even though paragraph 42 of Schedule 8 to that curious statute of 2007 says that it should work in this way”? I do not know whether my noble friend can give us any comfort on the matter or whether the Government will dig in their heels on the most fundamental issue of normal British justice; not just British justice, but I do not know of a writing anywhere in the world that would suggest that a judge could act as a mediator in private before proceedings begin. If my noble friend cannot offer any crumb at all, this obviously is something to which the House will have to come back on Report. It is the most extraordinary twist and turn in regard to employment tribunals that I have ever imagined. I had no idea earlier today that we would reach this point. In order not to delay Members of the Committee far beyond the point where we should have stopped, all I can do now is beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.