Employment Bill

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Brian Cotter (Weston-super-Mare): I am sure that the hon. Gentleman will accept that the question is what sort of behaviour an unpaid representative is engaged in. There is a difference between a paid representative, who knows what they are doing, and an unpaid one, who does not. We must be careful because unpaid representatives might unwittingly cause a problem.

Mr. Hammond: I accept that point, which is probably at the root of the Minister's reluctance to introduce financial penalties for unpaid representatives. However, I do not accept that unpaid representatives are necessarily unskilled or do not know what they are doing. They might be union officials who regularly represent people in tribunal cases.

Mr. George Osborne (Tatton): Surely the point made by the hon. Member for Weston-super-Mare (Mr. Cotter) reinforces my hon. Friend's case. If unpaid representatives do not know what they are

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doing, they should not appear before tribunals, waste tribunals' time or add to the number of tribunals that companies and employees have to deal with.

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Mr. Hammond: My hon. Friend makes his point well. The purpose of the clause is, bluntly, to combat the compensation culture. For example, a lawyer working on a contingency fee might push a case that has no real merit, abusing the tribunal procedure in the hope of financial gain for both the applicant and, by implication, himself. That must be in the Minister's mind when he says that there is a distinction between those who are remunerated and those who are not.

We heard at the previous sitting that there were few instances in which union representatives misconducted cases. I have no experience of that, but I am prepared to believe it. That does not alter the fact that, in order to be even handed, the legislation should include a power to deal with any representative, paid or unpaid, who abuses the tribunal. As the Minister has set his face against the imposition of financial penalties on unpaid representatives, the only appropriate remedy that I can think of is to include a power to make regulations disbarring, for a period, an unpaid representative on the basis of the conduct of a case. Will the Minister tell us why he cannot accept such a power and how he intends to deal with an unpaid representative who abuses the tribunal's procedure?

Norman Lamb: I want to respond to some of the points made by the hon. Member for Runnymede and Weybridge. I do not think that the approach suggested in the amendment is necessarily the right way to address the problem, but there is merit in the thrust of what he says. The Government should consider how to deal with unpaid representatives. I was head of the employment unit at a law firm for several years, and I came across cases—albeit infrequently—in which a union representative had abused his role. Knowing that the client was not having to pay for his services, he could put an employer in an invidious position by using mechanisms that were available as part of the tribunal process in order to delay matters or extend the process; to act in an unreasonable way. The Government's intention to limit the scope of the regulations to deal solely with paid representatives will not address that potential abuse.

I recognise the important role of trade union representatives in pursuing claims in the employment tribunal on behalf of members; I am not looking at the matter from an anti-trade union perspective. However, there is scope for unpaid representatives, from trade unions or elsewhere, to abuse the system, so it is necessary for the Government to consider how to rein in such representatives. They should reconsider provisions to require a trade union representative to pay the other side's costs if that union or that representative—or a non-union, unpaid represen- tative—has abused the process in a way that impacted unfairly on the other party to the proceedings. I urge

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the Minister to respond positively and to consider further my concerns and those of the hon. Member for Runnymede and Weybridge.

Rob Marris: Can the Minister tell us whether anyone has raised the problem of what I might call rogue advocates in response to the Government's consultation on the Bill? I am concerned that making tribunals into courts of law is going too far. Tribunals are not courts of law. The way in which they are conducted will result in more latitude being extended to the advocates that appear before them. Can the Minister say whether anyone has raised that potential problem, or is the amendment trying to deal with an evil that does not exist?

Mr. Hammond: Does the hon. Gentleman acknowledge that it is not apparent that the Bill would allow adequate remedies against all representatives? It is only because the Minister has made it clear that he intends to limit those remedies to paid representatives by regulation that the need has arisen to deal with the issue of unpaid representatives.

Rob Marris: The question is whether we include in the Bill a remedy for an evil or mischief that is not perceived to exist.

Norman Lamb: I realise that the employment tribunal was originally meant to be a non-legalistic forum, but I am sure that the hon. Gentleman knows from his previous existence that it has now moved far from that. The reality is that a lot of law is involved and representatives, paid and unpaid, now have the scope to exploit that and to act in a way that can unfairly disadvantage the other side. That problem needs to be addressed. I am sure that the hon. Gentleman knows how tribunals work today.

Rob Marris: In some ways I agree with the hon. Gentleman about the drift in the work of tribunals, but I am anxious to avoid something appearing in the Bill that could penalise unpaid representatives.

Mr. Osborne: The hon. Gentleman asked whether the Minister had received representations on the matter. I do not know whether he has seen the brief from the Law Society, his favourite organisation. It states:

    ''The Society . . . is concerned that attempts to draw a distinction between those who charge for their services and those who do not will be difficult to justify and even harder to maintain''.

Representation has been made, and I am surprised that he has not read it.

Rob Marris: As I said last week, when an amendment was tabled that used the Law Society's wording, I had not then received anything from the society. I received something, rather belatedly, in the post this morning. I am sure that the Minister, with his omniscience, will have received it. However, we must be careful not to penalise unpaid representatives because they are thought not to know the law as well as lawyers; many of them know the law better than lawyers.

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Mr. Hammond: The hon. Gentleman uses the word ''penalising''. A financial penalty would obviously penalise someone, but the power proposed in the amendment would simply say to someone, ''Frankly, you are not a suitable person to appear before a tribunal. You have mucked it up, you have wasted the tribunal's time and you have behaved vexatiously.'' It would prevent their appearing before an employment tribunal for a period of time. It would not be a penalty to someone who was not remunerated. It would simply smooth the procedure by removing from the system vexatious or difficult people who do not abide by the procedures.

Rob Marris: The hon. Gentleman may say that that is not a penalty, but we have already heard about union representatives. If someone who does legal work for the Engineering Employers Federation was banned for a specified period of time, and if it was an integral part of that person's job to conduct tribunals, that would indeed be a penalty because that person might lose his job. Whether he would deserve to lose it for incompetence in tribunals is a separate issue. It would still be a penalty.

Alan Johnson: I am sorry if the hon. Member for Runnymede and Weybridge thinks that I am being unhelpful, but I disagree with the amendment for several reasons. Let us be clear that the amendment would add an extra sanction to paid representatives. Amendment No. 21 mentions employment appeals tribunals, at which it is almost unheard of for anyone not to be represented legally. People from citizens advice bureaux, law centres and trade unions do not go to employment appeals tribunals on points of law.

To put the record straight, I should make it clear that I did not say that the job of the tribunals did not involve dealing with bad behaviour. I said that it was not for the tribunal to act as a regulatory body, and that it was not for the chairman to pass judgment on a representative's potential bad behaviour. That applies to future cases and to sanctions on the taking of tribunal cases for a fixed period. Let us reiterate that the job of the employment tribunal is to decide the point in question, not to act as a regulatory body.

I am not a member of the Law Society—I knew that that needed to be clarified—but the nub of the argument is about what happens to unpaid representatives, as we will discuss on other amendments. My hon. Friend the Member for Wolverhampton, South-West was right to say that a problem had not been highlighted. The tribunal judiciary clearly made the point about paid representatives. The hon. Member for Runnymede and Weybridge accepts that the problem, which has been seen in other areas of law, is about barristers and other lawyers who pursue cases for profit.

On employment tribunals, no problem has been reported about unpaid and unremunerated representatives. I fear that if a measure was taken such as that proposed, it might damage a system that was crucial to the tribunals. If we want to reverse the trend—it is not irreversible, and the majority of respondents and applicants are not legally represented

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at employment tribunals—we should not discourage the voluntary sector, which does an enormously valuable job. So often at employment tribunals, the resources for paid representatives are not available, and we do not want to discourage them.

The hon. Member for Tatton (Mr. Osborne) has left us a so-called Law Society circular. I am not sure whether it is a briefing on tribunals, but I cannot remember seeing any representation during our long consultation on ''Routes to Resolution'' that suggested that there was a problem with CAB and trade union representatives. If a problem had emerged from ''Routes to Resolution'' or we now discovered a specific problem, a cost award could still be made against either party to the dispute, applicant or respondent. Such people may be represented by trade unions. We said last week that trade unions, citizens advice bureaux, law centres and employers associations would sometimes be left out, although we do not want to penalise them. They sometimes give valuable judgments to the applicants. The applicant says that he pays his subs and so is entitled to representation, and the case goes forward despite advice. We are talking more about conduct than anything else in relation to the clause.

The hon. Member for Runnymede and Weybridge is right in that we intend to apply the provisions, but that intention is not politically motivated. I am surprised at him for making such a suggestion. If it were, how would he explain the almost unanimous support that we have had from organisations? They cannot all be accused of being politically motivated. We want to deal with a specific problem with paid representatives. We oppose the amendment because additional sanctions should not be applied to those representatives, and because we do not think that there is a problem with unpaid representatives. We certainly do not want to damage the extremely valuable voluntary sector involvement in employment tribunals, which the amendment would do.

There is no case for the Government to make the usual helpful statements. I would love to say that we shall consider what the hon. Gentleman suggests, but no problem has been identified. I have listened to what the hon. Member for North Norfolk said, and the provision would be a sledgehammer to crack what may be a very small pistachio in north Norfolk but is not a particular problem elsewhere.

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