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Standing Committee D
Tuesday 2 March 2004
[Mr. Eric Forth in the Chair]
9.30 am
The Parliamentary Under-Secretary of State for Trade and Industry (Mr. Gerry Sutcliffe): On a point of order, Mr. Forth. Good morning, and welcome to the Chair. For the Committee's benefit, I would like to make an announcement about the intimidation of workers during statutory recognition ballots. The Committee will recall that that issue was raised a number of times on Second Reading and was touched on during earlier sittings of the Committee. At that time, I stated that the Government were considering the matter and would come back to the Committee. I am now pleased to announce that the Government intend to bring forward amendments to the Bill on Commons Report to deal with the intimidation of workers by either unions or employers during a statutory recognition ballot. We will of course seek to give hon. Members ample time to consider those amendments.
I hoped to bring the matter to the Committee's attention last Thursday during consideration of an amendment tabled by the hon. Member for North-West Norfolk (Mr. Bellingham), but as the amendment was not moved I was unable to do so.
The Chairman: I thank the Minister. New clause 7
Dismissal after end of protected period
'(1) In section 238A (6) of the 1992 Act (dismissal after end of protected period), after paragraph (d) insert—
''(e) where there was agreement to use either of the services mentioned in paragraphs (c) and (d), the matters specified in section 238B.''
(2) After section 238A of the 1992 Act insert—
''238B Conciliation and mediation: supplementary provisions
(1) The matters referred to in subsection (6)(e) of section 238A are those specified in subsections (2) to (5); and references in this section to ''the service provider'' are to any person who provided a service mentioned in subsection (6)(c) or (d) of that section.
(2) The first matter is: whether, at meetings arranged by the service provider, the employer or, as the case may be, a union was represented by an appropriate person.
(3) The second matter is: whether the employer or a union, so far as requested to do so, co-operated in the making of arrangements for meetings to be held with the service provider.
(4) The third matter is: whether the employer or a union fulfilled any commitment given by it during the provision of the service to take particular action.
(5) The fourth matter is: whether, at meetings arranged by the service provider between the parties making use of the service, the representatives of the employer or a union answered any reasonable question put to them concerning the matter subject to conciliation or mediation.
(6) For the purposes of subsection (2) an ''appropriate person'' is—
(a) in relation to the employer—
(i) a person with the authority to settle the matter subject to conciliation or mediation on behalf of the employer, or
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(ii) a person authorised by a person of that type to make recommendations to him with regard to the settlement of that matter, and
(b) in relation to a union, a person who is responsible for handling on the union's behalf the matter subject to conciliation or mediation.
(7) For the purposes of subsection (4) regard may be had to any timetable which was agreed for the taking of the action in question or, if no timetable was agreed, to how long it was before the action was taken.
(8) In any proceedings in which regard must be had to the matters referred to in section 238A(6)(e)—
(a) notes taken by or on behalf of the service provider shall not be admissible in evidence;
(b) the service provider must refuse to give evidence as to anything communicated to him in connection with the performance of his functions as a conciliator or mediator if, in his opinion, to give the evidence would involve his making a damaging disclosure; and
(c) the service provider may refuse to give evidence as to whether, for the purposes of subsection (5), a particular question was or was not a reasonable one.
(9) For the purposes of subsection (8)(b) a ''damaging disclosure'' is—
(a) a disclosure of information which is commercially sensitive, or
(b) a disclosure of information that has not previously been disclosed which relates to a position taken by a party using the conciliation or mediation service on the settlement of the matter subject to conciliation or mediation,
to which the person who communicated the information to the service provider has not consented.'''.
—[Mr. Sutcliffe.]
Brought up, and read the First time.
Mr. Sutcliffe: I beg to move, That the clause be read a Second time.
I welcome the hon. Member for Huntingdon (Mr. Djanogly) to his new and improved position on the Front Bench. I look forward to his contribution this morning.
On Second Reading, the Secretary of State for Trade and Industry announced that the Government would come forward with an amendment in Committee concerning protection for employees taking official lawfully organised industrial action. New clause 7 fulfils that commitment. The Employment Relations Act 1999 introduced major new protections in that area. As a result, dismissals are unfair if they occur in the first eight weeks of such protected industrial action, or if they occur after the end of that eight-week period but the action had ceased within it.
As the Committee will recall, clause 21 amends the law by discounting lock-out days when calculating the eight-week period. However, the protections under the 1999 Act have an important second leg, which is often overlooked. A dismissal is unfair at any time if the employer has not taken reasonable procedural steps to resolve the dispute that led to the taking of industrial action. New clause 7 concerns the protections under that second leg.
The current provisions relating to such protections are found in section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992. The obligation on the employer to take reasonable procedural steps is contained in subsection (5)(c).
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Subsection (6) of section 238A then lists a number of matters towards which regard must be had when determining whether reasonable steps have been taken. Those include the issue at subsection (6)(c) and (6)(d) of whether either the employer or the union had refused an offer to use the services of a conciliator or mediator.
Such provisions are in place to encourage parties to try to resolve the dispute. The effect of subsection (6) is to ensure that the actions of both the union and the employer can be taken into account when assessing whether the employer has done enough in procedural terms to resolve the dispute.
The review of the Employment Relations Act 1999 brought renewed attention to that area of the law. Many respondents referred to the Friction Dynamics case, where the employer was perceived to have used various tactics to undermine the intentions of the law. In particular, the employer agreed to go to conciliation but did little or nothing when conciliation meetings took place. Indeed, the main employer representative reportedly left a key conciliation meeting after 30 minutes or so to go shopping. In other words, the employer showed contempt for the process, paying lip service to what he thought were his legal obligations.
We do not want to see any repetition of such behaviour by another employer or, indeed, by a union. Therefore, we wish to set out in greater detail in statute what obligations follow when parties agree to use the services of a conciliator or a mediator. Conciliators and mediators perform similar functions, but there is an important distinction between their roles. Conciliators facilitate discussion between the parties. They do not make recommendations to resolve either the procedural or substantive issues in dispute. In contrast, mediators are entitled to make non-binding recommendations to the parties about the dispute. In the context of these provisions, the mediator might make recommendations about the further procedures that the parties could use to resolve the dispute.
New clause 7 works by inserting through new paragraph (e) of subsection (6) of section 238A new matters to which the tribunal is to have particular regard when the parties have accepted that the services of a conciliator or mediator will be used. Those matters are detailed in subsections (2) to (5) of new section 238B. Those subsections set out the essential actions that the parties should take to demonstrate that they have properly engaged in the process. I will go through them in turn.
The first, set out in subsection (2), is the issue of whether the person who attends conciliation or mediation meetings on behalf of the employer or employees is an appropriate person. Clearly, it would not be acceptable for employers to send along junior employees of no standing to be their representatives. However, we recognise that the most senior person may be unable to attend all meetings themselves, especially if the organisation is a large one.
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Mr. Jonathan Djanogly (Huntingdon) (Con): Will the Minister explain when a junior employee becomes a senior employee?
Mr. Sutcliffe: I hope to. If not, I shall return to the subject.
An appropriate employer representative is defined in subsection (6) of new section 238B as a person who has the authority to settle the matter on behalf of the employer, or a person authorised by that person to make recommendations to him or her with regard to the settlement of the matter. That makes sense, and it ensures that the right people will be engaging in the conciliation or mediation process. On the union side, the appropriate person must be responsible for handling the matter subject to conciliation or mediation on behalf of the union.
The second matter, set out at subsection (3), is whether the employer or union co-operates with the conciliator or mediator to make arrangements to set up meetings. That will ensure that employers and unions cannot use delaying tactics to put off such meetings. In other words, the law would make it clear that both parties must treat approaches by the conciliator or mediator as a priority, and they must treat them seriously and constructively.
The third matter, set out at subsection (4), is whether the employer or union carries out the actions agreed with the conciliator or mediator. The additional requirements of subsection (7) are designed to ensure that these actions are carried out in a timely manner.
The fourth matter, which is set out at subsection (5), is whether, at meetings with all parties present, the employer or union should answer reasonable questions. That formulation recognises that there will be occasions when either party should be entitled to refuse to give a response to a question. For example, neither party should be required to divulge confidential information about individuals, or about the bottom line in its negotiating strategy. All those provisions are sensible. They map out the basic procedural features of conciliation or mediation.
Subsections (8) and (9) of new section 238B concern the evidence that conciliators or mediators may give to tribunals. We recognise that they may be required to give evidence. After all, no other person is as well placed to know what went on. Moreover, the conciliator or mediator has no vested interest. Their evidence must, therefore, carry particular weight. However, the work of conciliators and mediators is based on trust. Respect for their impartiality and professionalism is essential. Most are either ACAS officials or, in the case of mediators, individuals appointed by ACAS. In order that trust be maintained, the parties must know before they enter the process that confidential information passed to the service provider will not be revealed. Further, it is not appropriate that the service provider should give a subjective opinion, however professionally derived, on the behaviour or reasonableness of either party. We need to place some limits on the evidence that conciliators or mediators must provide.
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Subsection (8) therefore ensures that case notes taken by service providers will not be admissible in evidence. The service providers are also required not to give evidence on anything without the consent of the party who communicated it that in their judgment would mean divulging either commercially sensitive information, or information as to the position of the party on the matter subject to the conciliation or mediation. Nor can they be required to offer an opinion as to the reasonableness of the questions that any party was asked at a meeting.
The net effect is to limit the evidential role of the conciliator or mediator to the provision of the essential factual information relating to a case. It will be for the tribunal to assess the reasonableness of the parties' behaviour, based on that factual information and the arguments advanced. If we did not make such a provision, the vital work of ACAS might be undermined. Parties might become reluctant to use those key services.
New clause 7 will improve the operation of the law. It makes it clear that parties must engage in the conciliation or mediation process once they have chosen to go down that path. They should not be allowed to sit out meetings or pay lip service to the process. The new clause will help the mediator and conciliator in their work, while preserving essential safeguards. It will give them the best opportunity, often in difficult situations, to help the parties to find a settlement to their disputes. I therefore commend the new clause to the Committee.
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