Employment Bill

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Norman Lamb: The amendment continues the theme of several amendments tabled by the hon. Member for Runnymede and Weybridge. The more one thinks about it, the more plain it is that it will be difficult for the regulations to define sensibly a paid representative. There are complicated grey areas with, for example, contingency fee lawyers who will not be paid anything if they lose, perhaps partly because they behaved so appallingly in the tribunal. They are not paid representatives in the context of that hearing. Should we include an in-house lawyer, whether that is for a trade union or employers' organisation, as a paid representative?

There will be enormous problems of definition in the regulations. Rather than limiting the potential for awarding costs to being only against paid representatives, would it not be better for the tribunal to have the capacity to award costs against any representative as long as it takes into account the basis of their representation? In exercising such discretion, the tribunal would clearly not want to impose an unfair penalty on a voluntary or trade union representative who had simply been doing their job. It would give the tribunal the capacity to impose an order where the unpaid representative had acted inappropriately, and would not get the Government into difficulty in defining paid and unpaid representatives in the regulations. I put that forward as a constructive suggestion as a way out of this difficulty.

Rob Marris: I do not see a problem with the regulations discriminating between different representatives. I will offer my definition, and I am sure that the Minister will give his, but we are reaching for the difference between professionally qualified representatives, trained representatives and volunteers. The duty on a representative towards a tribunal or EAT will vary depending on their level of qualification. Tribunal chairs will rightly expect more of professionally qualified representatives. Conduct that is unacceptable from a professionally qualified

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representative might, to many tribunal chairs, be acceptable from a volunteer—for example, the friend who lives next door.

Mr. Hammond: The hon. Gentleman makes a sensible suggestion for where a line might be drawn, but it is not the one that the Minister is proposing. The Minister is proposing to allow the friendly neighbour who is a barrister appear unpaid without jeopardy but leave, as the Trades Union Congress brief says, the totally unqualified

    ''independent consultants . . . who charge for their services and actively encourage claims''

vulnerable to a cost order.

Rob Marris: The hon. Gentleman has an advantage over me, because I have not seen the Minister's definition or dummy regulations, if any exist. That is what we are trying to tease out from the Minister today. The hon. Gentleman obviously has an inside track that I do not, and I apologise to the Committee for my ignorance.

Mr. Hammond: I have not seen the Minister's draft regulations, but I have read the TUC brief, which is usually an authoritative source on such matters, as the TUC tends to write such passages for the Minister. The TUC seems convinced that the Minister will use the criterion of whether the representative is paid or unpaid. Indeed, the Minister has made it clear that he will.

Rob Marris: We should wait for the Minister's response to find out what his views are.

Finally, I believe that the final full line of amendment No. 24 should read ''appellants or respondents'', not ''applicants or respondents'', as the clause deals with EATs at that point.

Alan Johnson: The way out of that dilemma is to withdraw or oppose the amendments. The hon. Member for Runnymede and Weybridge should accept that neither the Bill nor the regulations discriminate between applicant and respondent. He does not need an amendment to ensure that.

Mr. Hammond: I accept that, but does the Minister accept the concept of second-order discrimination? If he discriminates against one class of representative, and in 95 per cent. of cases it represents one side of the argument, that is de facto second-order discrimination. That is a well established principle in discrimination law.

Alan Johnson: I do not accept that that is a principle in the Bill. Last year, a third of cost awards went to applicants rather than respondents. That is a different figure from the last time we considered the matter in 1988. There is no set rule because cost awards can be made against either party. We have heard horror stories from both sides about wasted costs. The nub of the hon. Gentleman's argument centres on paid or unpaid representatives.

Rob Marris: May I assist the Minister? When the hon. Member for Runnymede and Weybridge refers to second-order discrimination, he means indirect

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discrimination, which is allowed in certain circumstances. It depends on the circumstances. It can be justified, just as direct discrimination is allowed—some might say sadly—under the Disability Discrimination Act 1995. I am sure that the Minister would agree, in cases such as the Sex Discrimination Act 1975—

Mr. Hammond: ''Minister supports discrimination''?

Rob Marris: No. Indirect discrimination can be allowed, and if the figures show that the majority of those causing problems at tribunals are respondent employers, the Minister might agree. The Conservatives may see that as indirect discrimination, but the Government are justified in drafting legislation to deal with it.

Alan Johnson: I do not want to debate discrimination. However, I am sure that we will not be dragged before the European Court of Human Rights for targeting paid representatives who make a financial gain from cases. I love the concept of the friendly barrister who is a neighbour and offers to work for nothing—that is glorious. If the hon. Member for Runnymede and Weybridge can let us know where those friendly barristers live, we would beat a path to their doors, and we would no longer have so many problems.

The hon. Gentleman raised important points about how we define the provision, as did the hon. Member for North Norfolk and my hon. Friend the Member for Wolverhampton, South-West. We are in danger of losing perspective: the tribunal judiciary is clear about where the problem lies. It deals with such cases day in and day out, and its representation to us concerned paid representatives. It has not moved away from that assertion one iota—not one smidgeon. It is not necessary to read the TUC brief—I have not read it, but the TUC is a marvellous organisation, and its literature is highly recommended. The judiciary does not note a problem in its response to the ''Routes to Resolution'' document.

I repeat the point made at the last sitting by the hon. Member for Weston-super-Mare. Until this inspiration struck me, my response was foggy. We are out to get the no win, no fee brigade as well. That is an important part of the measure.

We intend the regulations on wasted cost to exclude the not-for-profit sector: trade unions, law centres, citizens' advice bureaux and employers' advisory bodies. We intend them to apply to representatives who charge for their services, including solicitors, barristers and employment advisers. However, hon. Members are correct to point out that poor conduct may come from all types of representative, paid or unpaid; we accept that. We want to encourage all representatives to act responsibly and to accept responsibility for their actions.

Mr. Hammond: I think what the Minister is saying about contingency fees is that his criterion is not whether someone is paid or unpaid but whether they have become a representative with a view to being

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remunerated. How will the hon. Gentleman deal with in-house lawyers? Is the Library brief—unusually—wrong in saying that in-house lawyers will be included in the category that can have cost awards made against them?

Alan Johnson: I hesitate to criticise a Library brief. The hon. Gentleman is right; they are authoritative documents. In such a case, where an in-house lawyer acts for an employer who is a respondent or for an applicant and where they have behaved outrageously, costs awards can be made against the organisation not against the individual making the representation because they are in-house and they do not stand to make a profit from representing that case.

Norman Lamb: Does that mean that if a trade union lawyer were representing a trade union member in the tribunal, the trade union could be subject to an award of costs, whereas if it were a non-qualified representative of the trade union it could not be subject to an award of costs?

Alan Johnson: The short answer to that is no. We are talking about the conduct of representatives. I thought from the hon. Gentleman's quote from the Library brief that it would not apply to the individual lawyer who was acting outrageously and representing the client because they were in-house, being paid to do their job, but it could apply to the organisation. It could apply to the company in terms of a respondent in that situation.

Mr. Hammond: That is precisely the difficulty; it could apply to the company in a case where the in-house lawyer worked for the respondent, but there is no symmetry, because it could not apply to an in-house lawyer employed by a trade union, because the trade union is not the applicant. The individual applicant will be the one to suffer the consequences of misconduct by that in-house lawyer. It is precisely those issues of symmetry that we are concerned about: that an in-house lawyer working for an employer will be treated differently from an in-house lawyer working for a trade union if page 41 of the Library brief has got it right.

Alan Johnson: May we return to the issue of employment tribunals and their specific nature? The measure provides that a person may be represented by whoever they want to represent them—it may be their next-door neighbour, who is not a barrister, but who is articulate and is someone about whom the person feels confident. With due respect to lawyers, we do not want employment tribunals to become their preserve. It is important to keep that in focus when we discuss extending the proposal to cover people in the voluntary sector, and the amendment provides that that there should be no discrimination between

    ''different classes or types of representatives''.

Many claims are straightforward claims for small amounts of money. We think of every case as a claim for unfair dismissal but there are many other claims in which it is not appropriate for the legal profession to

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become involved. The evidence clearly shows that individuals rely heavily on trade unions, citizens advice bureaux, law centres and employers' organisations. If we include unpaid representatives there is a danger that volunteers will be discouraged from offering their services, or the behaviour of a rogue individual could have a harsh impact on a tightly resourced free advice centre.

The principle is the same for trade unions, which are tightly resourced, where a union has engaged a lawyer to act on behalf of an applicant and that lawyer conducts the case unreasonably. It may be appropriate for wasted costs to fall directly on the lawyer, but otherwise it would not be fair on the organisation and, indirectly, its membership, to suffer as a result of the conduct of one representative. That would place too great a loss on tribunal users.

11.30 am

 
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