Employment Bill

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Rob Marris: Has the hon. Gentleman considered whether clause 28, on pre-hearing reviews, deals with some of his points? Let us suppose that a respondent telephones ACAS to ask what is going on with a case, but the officer there says, ''I'm sorry, but I can't do anything. The applicant's not prepared to talk and says he'll see you in court.'' In those circumstances, the respondent could apply for a pre-hearing review, at which he could say, ''When I contacted ACAS, I was told that the applicant was not interested in talking at all. That is totally unreasonable, and this application should be kicked into touch.''

Mr. Hammond: We shall discuss clause 28 in a moment. I am not sure whether such a case could be subject to a pre-hearing review, given that the respondent would be unlikely to agree to it, because by definition he was not playing ball. We shall explore how those reviews will work when we reach that clause. To ensure that we get there, we had better not prolong debate any further on this clause.

As I said, I am disappointed. The amendment was a genuine attempt to explore whether there was a need to consider behaviour during the conciliation period as well as in the tribunal forum. The Minister has not made a convincing case why it is not needed. Because of the pressure of time, I shall withdraw the amendment, but he has not satisfied me on this point. He has the drop on me in that I have not talked to ACAS about the proposal, but I intend to do so before Report. If it is appropriate, I shall raise the matter again at that stage.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 36, in page 33, line 35, at end add

    '', and

    (d) after paragraph (c) add—

    '(d) provisions securing that the parties to proceedings have timely access to all documents necessary to facilitate conciliation'.''

Amendment No. 36 would allow for something akin to discovery at the conciliation stage. A briefing from the Legal Action Group makes the following good point.

    ''A fixed period for conciliation is inappropriate unless tribunals manage cases so as to ensure that early disclosure of evidence takes place.''

It would be inappropriate to put

    ''pressure on parties to settle without full knowledge of the facts of the case'',

as it is ''not conducive to justice.''

I am not a lawyer so I may have phrased my amendment imperfectly. People who understand better how the discovery process works in tribunal cases could make a better stab at it.

I want to probe the Minister on the extent to which he intends parties to reveal their cases at the conciliation stage. Common sense tells me that the more that is revealed of a case, the more likely will be a conciliated settlement. However, it may be wrong to reveal a case too soon if it is to be tested in a tribunal. People should not be put into a dark room to conduct the conciliation process, only to become aware of the full details of the other party's case when—having failed to reach a settlement—they emerge into the blazing light. Will the Minister explain how he will ensure that that does not occur?

Alan Johnson: The hon. Gentleman proposes that parties should receive relevant documents in good time to help effective conciliation, which goes to the heart of voluntarily conciliation. Currently, the secretary of the Office of Employment Tribunals ensures that copies of applications and notices of appearances are sent to the person making a claim, the person responding and an ACAS conciliation officer. A party who requires further details may request them from the other party. If those are not forthcoming, a party can approach the tribunal, which can order that the information is provided.

Extra information gathered in the way suggested by the amendment could be useful to parties considering a conciliated settlement. However, a mandatory requirement does not sit well in a voluntary process.

Mr. Hammond: I accept what the Minister says. Should that process occur before the conciliation period, or afterwards? Common sense tells me that it would be helpful if it happened at the beginning.

Alan Johnson: The hon. Gentleman is right: it would be helpful. We are not suggesting compulsory conciliation, and neither are Opposition Members. That would be a mistake and we have heard many arguments against it. We did not make it a proposal, but it was covered in ''Routes to Resolution''.

We must encourage people to engage in voluntary conciliation. The amendment could result in parties concentrating on the legalistic process of obtaining information via the tribunal rather than reaching a settlement. Our proposals do not prevent parties from seeking further information voluntarily or through the tribunal. Our proposals on mandatory application forms and responses could go a long way to achieving the aim of the amendment. We expect that by prescribing the information that is required, we will gather much of the information that the amendment seeks to make available to the parties. That will complement the role that ACAS conciliation officers currently perform to clarify the issues for parties as they consider reaching a settlement.

Mr. Hammond: If I understand the Minister, nothing would prevent either party from approaching the tribunal at any time during the process to seek the tribunal's order to the other party to disclose information. That would effectively secure that timely access to documents that the tribunal believes necessary for the conciliation process. If the Minister will confirm that, I will be delighted to withdraw the amendment.

Alan Johnson: I can confirm that.

Mr. Hammond: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 pm

Mr. Hammond: I beg to move amendment No. 37, in page 33, line 35, at end add—

    '(4) The Secretary of State shall within 90 days of this section coming into force, prepare and publish an assessment of the additional resources required by the Advisory, Conciliation and Arbitration Service to facilitate the conciliation process as provided for in this section'.

External bodies on both sides of industry have expressed concern about the resources available to ACAS. The regulations will give ACAS a greatly increased role. Conciliation is a laudable objective, but we all agree that there must be a time limit. The worst scenario is that we write into legislation a requirement for a conciliation period. That would, in effect, be tokenism, and one can imagine someone from ACAS talking to someone on the telephone for five minutes, because that is all that the available resources will allow. It is generally agreed that ACAS services are stretched, even though the number of days lost through disputes might lead us to believe that demand is low.

I am concerned that the Government are, if not imposing, greatly encouraging the use of conciliation by writing it into the statutory procedure, without giving ACAS adequate resources to provide the service necessary if conciliation is to work. The amendment would place on the Secretary of State a duty to assess the requirements of ACAS in the light of the new legislation and to publish the results of that assessment. That would put the Minister on the spot to provide the resources to make effective the system that he and his Government have invented.

If the issue is not addressed, conciliation could easily become an empty box—a delaying process—in the tribunal system, and would not have a fair chance of working and demonstrating its ability to reduce the number of cases that reach tribunals, simply because there are no conciliation officers. All hon. Members will have come across child protection cases in their constituencies in which a social worker was assigned to a child who had never seen them before or who last saw them two or three years before.

The bureaucratic process of providing resources and input is not the same as the mechanism of delivering adequate resources to ensure that the opportunity that the legislation seeks to provide is properly exploited by all parties to maximum effect. The amendment would ensure that the Minister had to make a public assessment of what was really needed.

Alan Johnson: There is very little between the hon. Gentleman and me. I hope that he will withdraw his amendment, but it is important to say a few words about ACAS. We have made proposals for changes to conciliation in full consultation with ACAS. The hon. Gentleman is right that there are resource implications. They would be the subject of ongoing discussions between my Department and ACAS. In addition to those usual channels, we have set up the employment tribunal system taskforce to look at the employment tribunal system as a whole, which obviously includes ACAS conciliation. The Government also said that

    ''the Taskforce may wish to consider the operational aspects of implementing proposals set out in the 'Routes to Resolution' consultation paper''

which go beyond the scope of the clause.

The proposals include the introduction of the minimum dispute resolution procedures, which the Committee will soon debate and which are predicted to have a considerable impact on ACAS's case load. ACAS also plans to step up its advisory role, such as the seminars that it runs for small businesses. There is a real sea change at ACAS. It now has a chief executive as well as a chair and is moving into new areas with great enthusiasm under Rita Donaghy's expert chairmanship. Significant extra resources have been found for the employment tribunal service and ACAS. The ETS's allocation has just been increased by more than £2 million this year, by £7.5 million next year and £10 million the year after. We also plan to provide ACAS with significant extra resources to cope with case load increases and the cost of introducing new pay systems.

ACAS already puts considerable effort into conciliating cases, but there is no fixed period for conciliation. It can drift on for long periods. A fixed period of conciliation would give ACAS less choice of when to deploy its resources, but it should allow ACAS greater scope to plan the use of those resources. The Government do not accept that extra resources will necessarily be needed. The operational detail of the proposals will need to be fully worked out before their impact on resources can be assessed.

Requiring the Secretary of State to prepare and publish an assessment of the additional resources required by ACAS, as the amendment seeks to do, is not likely to be helpful. I have explained that this is one of a number of proposals impacting on ACAS. We hope to use the fixed period of conciliation to change the behaviour of parties to employment tribunal claims. The extent to which that aim has been successful is unlikely to be clear within 90 days of the law coming into force. I hope on that basis that the hon. Gentleman will withdraw the amendment, which is unnecessary. Its aims are laudable but they would not be achieved. Many of the points that have been made about ACAS are entirely relevant, and we will address them in the course of putting this Bill into effect.

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