Employment Bill

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Rob Marris: The hon. Gentleman said that he was not disinterested in semantics. Did he mean that he was not uninterested in semantics?

Mr. Hammond: I am grateful for that intervention and I look forward to serving with the hon. Gentleman on many Committees. I can see that he and I have a great deal in common and I shall go away and ponder on his point.

To be serious, I ask myself whether I have missed something about paragraph (b). It appears to do nothing at all and therefore offends the principle of economy in legislation. If the paragraph does do something, I have not noticed what that is, and I should be grateful if the Minister would explain it to me.

Alan Johnson: I fully agree with the intentions behind the first three amendments. Incidentally, to be semantic, there is an error in amendment No. 26. I think that it should be aimed at amending line 10, not line 16.

Mr. Hammond: The amendment was correct when it was tabled, but it was published with an error on the original Notice Paper. That was subsequently corrected, so the Minister must have a copy of the original one.

Alan Johnson: It serves me right for being semantic.

The first three amendments would ensure that the conciliation period was reasonably brief and did not hold up unduly the progress of tribunal claims where a settlement was not reached and they went on to a hearing. I agree that a conciliation period longer than three months is too long and I fully intend to ensure that the normal period is shorter than that. ACAS shares that view. I agree with the hon. Gentleman that it would be sensible to set in legislation a maximum length of three months, but the proper place in which to do that is in regulations, not in the Bill. There is no disagreement on the principles.

I can assure the hon. Gentleman that the period for conciliation is intended to be fixed. It may be helpful if I explain how we intend that period to operate. Its purpose is to encourage parties to think seriously about whether they are willing to settle their claim and to do that thinking earlier in the process than they do now. We are plagued by last-minute settlements on the steps or at the door of employment tribunal hearings, and there is a significant waste of tribunal time and a substantial delay to other claims. Tribunal proceedings and participants will benefit greatly if two thirds of the claims that are settled or withdrawn between conciliation and the hearing are dealt with in a timely manner. There will be a fixed period, which we agree should not be longer than three months. The normal period will be much shorter; the general view of ACAS is that it should be six weeks. The hon. Gentleman is nodding.

During the fixed period, ACAS will approach both parties and encourage them to engage in conciliation. They are not obliged to engage in that process—conciliation is not compulsory—but it is right that they should be asked to pause for thought and that the tribunal should not normally progress their case until the period has ended. Currently, while the parties are merrily discussing the case in conciliation, they receive notice of an employment tribunal with a set date, and their minds turn inevitably to their day in court rather than to the conciliation. If the parties have not reached a settlement by the end of the fixed period, the case will be listed for a hearing. So conciliation is got out of the way before the date is set for the hearing, which is not what happens at the moment. However, if ACAS considers a settlement to be imminent, there will be provision for a limited extension to complete its work.

The hon. Member for Runnymede and Weybridge is right that an extension cannot be used and abused to avoid an eventual tribunal hearing. Parties may, of course, choose to settle their claim later, but at that point it will be for ACAS to choose whether to become involved. Claims may be settled through compromise agreements as an alternative to an ACAS conciliated settlement.

Mr. Hammond: Will the Minister clarify whether the extension to the period will be determined, or at least rubber-stamped, by the tribunal, or whether the power to do that will be delegated to ACAS?

Alan Johnson: ACAS would need to decide whether a settlement is imminent, as it is part of the conciliation process and can give a good and independent judgment about whether an extension is likely to lead to a conciliated settlement. So the onus will be on ACAS.

Let us deal first with the points about conciliation and fixed periods. Amendment No. 35 would provide for extensions to the fixed period. As I explained, I agree that there should be provision for carefully controlled extensions where ACAS believes that a settlement is imminent, and the provision will be in the regulations. The aim of the amendments is laudable, but they are not necessary, and I invite the hon. Gentleman to withdraw them.

Amendments Nos. 32 and 33 would remove two proposed amendments to section 18 of the Employment Tribunals Act 1996. Amendment No. 32 is probing. Subsection (3)(a) will allow the regulations to provide that the employment tribunal service need not send an application form to ACAS unless the respondent has completed an IT3 response form giving notice of appearance. Under section 19A of the 1996 Act, all application forms must be sent to ACAS once the tribunal service has received them. If a respondent fails to enter a notice of appearance, it seems entirely reasonable that ACAS should avoid wasting its resources on fruitlessly trying to engage in conciliation with a party who will not co-operate. So if the IT1 application has been submitted but the IT3 response form has not been received, the employment tribunal must, under current law, send the notice of appearance to the respondent.

That is a tidying-up amendment. On subsection (3)(b), the hon. Gentleman has provided us with a real challenge: to explain what subsection (3)(b) is for. It is supposed to reflect the following change. ACAS will have a duty to conciliate during the specified period. Outside that period, in which it currently has a duty to continue to conciliate, it will have a power to do so. ACAS can make it clear that parties should not hang about until the end of the process, and accordingly encourage them to get moving and find a solution. If the parties pass that date, ACAS has no duty to remain and can threaten to walk away. ACAS has the power to continue if it thinks the process will benefit from an extension.

The hon. Gentleman raised a reasonable point, which I raised earlier, about the wording. Currently, an ACAS officer has a duty to conciliate if both parties request it, or if he has a reasonable prospect of success. At the end of the fixed period, the duty to conciliate is to be converted into a power to conciliate.

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The changes made to section 19(b) of the Employment Tribunals Act 1996 by subsection 3(b) reflect that change in the ACAS officer's duty. The regulations must provide for the notification of parties about the availability of a conciliation officer's services, rather than saying that parties must be notified that an officer is available. After that clarification, I hope that the hon. Gentleman will withdraw these two amendments and the first three.

Mr. Hammond: I shall deal with the last point first, because it is crystal clear in everyone's mind. The Minister has lost me because subsection 3(b) deletes

    ''that the services of a conciliation officer are available to them'',

and substitutes

    ''of the availability to them of the services of a conciliation officer''.

To me, that does nothing substantive. It certainly does not address the issue mentioned by the Minister, which is the change from duty to a power to conciliate.

I am unpersuaded that the provisions of subsection 3(b) do what the Minister says that they do. They seem to change the wording for the sake of it. I am not terribly upset about that, but it is a waste of everyone's time to change the grammatical construction of sentences that have no substance. The Minister may say more on that in a moment.

Mr. George Osborne: Perhaps I can help. Is it something to do with the propensity of new Labour to confuse words with substance and action?

Mr. Hammond: That is the well-known gap between its rhetoric and reality. My hon. Friend could be on to a rich vein here, and if we had more time we might mine it for an hour or so. However, given the disgraceful constraints imposed by the Government on the Committee's considerations, it may be better if we move on. I recognise the Minister's argument about duty and power to conciliate. My impression was that that related to another provision.

On amendment No. 32—I shall continue going backwards—the Minister seemed to say that the only exception he will make is in a case where the respondent has not sent the requisite form. In such cases, there is no point in mandating a conciliation period. I have no problem with that, but why is it not possible to add

    ''except in cases where the respondent has not acknowledged receipt of service'',

rather than say

    ''except in such circumstances that the regulations may provide'',

which would leave it wide open for Ministers, now or in the future, to exclude whole classes of applications from the conciliation procedure.

I thank the Minister for confirming that the Government intend to introduce through regulations—sub-optimal, but it gets there in the end—the substantive points at which amendments Nos. 34, 26 and 35 drive. I am slightly disappointed that the tribunal will not be involved in the granting of extensions and that that power will be wholly delegated to the Advisory, Conciliation and Arbitration Service. ACAS is an under-resourced service and will have substantial additional burdens placed on it by the Bill. I suspect that, more often than not, extensions will be granted not because of the likelihood of imminent results from conciliation, but because a lack of resources means that conciliation has not even started as the end of the initial period looms. It is no good for the Minister to bang the table and say that six weeks is the normal period and three months the maximum if there are too many cases to conciliate and too few officers to work on them.

I would have preferred reference to be made to the tribunal, so that there could have been a public forum in which we could see when cases were brought back for extensions of the conciliation period. That would have meant that any failure to resource properly the conciliation process would have rung a public alarm bell. We will discuss later the resourcing of ACAS and the needs that will arise. The Minister dealt with the substance of the first three amendments in the group, if not the last two. Unless he has something helpful to say—I see that he helpfully indicates that he does not—I will withdraw the amendments and invite my noble Friends to pursue the arcane language of subsection (3)(b) when the Bill reaches the other place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 
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