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Baroness Turner of Camden: I shall speak to Amendment No. 6 which is grouped with Amendment No. 2. It would enable tribunal rules to make provision for test cases or representative proceedings in cases where a number of workers' rights depends upon a test action instead of each having to enforce their rights individually.
Every trade union official has had to deal with cases in which a number of members have been dismissed, possibly in exactly the same circumstances. However, because of the nature of our legislation each case must be taken individually. As I know from experience, often willing victims are sought and one or two cases are heard in what amount to test cases. The idea is that if a case is won the employer will apply the findings to all others so affected, rather than face masses of similar cases.
Of course, it does not always work like that. Sometimes the employer may decide to continue resisting or may take the case to appeal. Therefore, the dismissed employees will have to wait longer. If the idea of the amendment were adopted, time would be saved because many cases could be heard together. Furthermore, it would be much better from an industrial relations standpoint because the issue could be dealt with at once and more speedily.
Moreover, the amendment does not prescribe a method; it simply opens the door. The regulations, which are referred to in the amendment, would come later. Therefore, I hope that what is suggested here is acceptable or, if not, that something similar might be considered. It really would make much more sense than the present situation and, in my view, would lead to a much speedier resolution of cases that affect more than one or two employees.
At present, those sorts of representative proceedings are available only in the High Court under Order 15, Rule 12. It would be perfectly possible to alter the industrial tribunal rules of procedure to introduce something similar. Under the current industrial tribunal rules of procedure, Rule 18 allows the tribunal to consider applications together where there is a common question of law or fact arising in some or all of the originating applications or where the relief claimed in some or all of the applications is in respect of, or arises out of, the same set of facts. But it is still necessary for each and every complainant to lodge a separate piece of paper, a separate originating application. In some situations, as I shall explain, where the number of applications can be very large--hundreds or even thousands--the situation is unworkable and unjust.
Before I come to the example, perhaps I may make two comments. First, it is a great pleasure to speak after my mentor, the noble Lord, Lord Wedderburn of Charlton, who tried to teach me contract law some time ago at Cambridge University. I did not learn enough which is why I practise in the field of public law and employment law. Secondly, it is a great pleasure to speak after the noble Baroness, Lady Turner of Camden, because she was a very distinguished trade union official in a case in which I was instructed and which I should like to use to illustrate the problem.
It was the speech therapist case, the case of Enderby and others, which has now gone on for 11 years. The noble Baroness's trade union, under-resourced, was compelled by the absurd rules of procedure, which we are trying to improve and make practical for employers and employees, to file, I think, more than 1,000 originating applications in England and Wales, in Scotland and in Northern Ireland, all to deal with precisely the same points; namely, whether speech therapists, mainly women, could or could not compare their work and pay to hospital pharmacists and clinical psychologists so as to have their EC rights to equal pay for work of equal value.
The case, as I say, has so far lasted for 11 years. Because all those pieces of paper had to be issued up and down the country, instead of having a single piece of paper on which one could, if necessary, list the workers concerned in an orderly way and have the issue determined in an orderly way in one tribunal, health authorities and now national health trusts up and down the country on both sides of the Irish Sea and on both sides of the Border have been overwhelmed by those hundreds of originating applications. The union has been unable properly to keep track of all of them. After 11 years of the tortuous proceedings that have been undertaken, many of the applicants have disappeared, died or changed their jobs. Moreover, the whole nature of employers has changed because of the privatisation
It does not end there, because your right to have your case decided within a reasonable time is guaranteed again by Article 6 of the European human rights convention and also by European Community law where the equal pay and treatment directives guarantee right of access to an effective judicial process. The ludicrous gap in the procedures of the industrial tribunals means that when there is a common point of fact or law which can decide the case for everybody, instead of employees or employers being able to have it gathered together in one forum, one tribunal, and dealt with properly, there is a quite absurd situation. I hope very much that when we hear from the Minister in due course we shall not be told that we should wait for wider studies or consultation on this aspect.
I understand that the position is that the noble and learned Lord the Lord Chancellor has set up a working group to consider introducing the concept of representative action into British law generally, mainly for consumer-related claims. As I understand it, the Department of Trade and Industry has asked the working group to consider the question of representative proceedings in employment tribunals. The DTI would like to see those recommendations before it decides to make provision for representative proceedings before industrial tribunals. I believe that there is to be a consultation paper in a matter of some months.
With great respect, that is not good enough when one is dealing with the urgent need for speedy access to justice in this class of case. It is extremely important that at the very least we put into this Bill a power--and that is all it is--in the Minister to be able to provide for that procedure by subordinate legislation. Otherwise, we shall have to wait for another government measure, a primary measure, before we can achieve that power. I know that the TUC would like to see something on those lines and is particularly concerned about equal pay claims, as am I. Therefore, I very much hope that whatever may be the wider questions, at least in the area of discrimination law and equal pay we shall be able to give to the Secretary of State the power to enable that to be done as soon as possible.
Lord Archer of Sandwell: We are in a slightly curious position with these amendments. Most of my noble friend's amendments are designed to curtail the power of the court to take a decision without having a full hearing. This amendment seeks to extend the court's power.
In relation to Amendment No. 2, I hope that my noble friend will accept that her amendment is not necessary. In the kind of the circumstances which I think she contemplates, chairmen usually direct that a case should not be listed until the appropriate time; for example, when a particular point of law has been decided. Usually, when the application is made, that direction is given. They do that without any hearing at all, even the limited kind of hearing which Clause 2 contemplates. To require them to hold any kind of formal hearing would simply add a further layer to what takes place.
I turn now to Amendments Nos. 6 and 7. The presidents of the industrial tribunals, whom I think both the Government and I have consulted, have taken the view that the existing powers under the rules are sufficient for multiple cases to be handled. For example, tribunals are able to arrange for test cases in cases where there are multiple claims. The Froege Fisscher case is an obvious example. I should be reluctant to compel tribunals to adopt procedures which might not be suitable in all cases. However, before I move on, there is something that I should mention. I am not blaming anyone for it because it is one of those things that we have to contend with in this Chamber, but some of today's amendments were tabled at a very late stage. My noble friend Lord Haskel and I have been in and out of meetings all day. We have been receiving briefings in the manner of one sheet of paper at a time. I am not sure that I would want to lay down any hard and fast rules in that respect at this stage. My noble friend Lord Wedderburn has just reminded me that our amendments were tabled last week; it is now Tuesday of this week. I make no further comment save to say that, "It ain't easy kid". That was the point I was trying to make.
I turn now to Amendment No. 7 tabled by the noble Lord, Lord Lester. We were not wholly taken by surprise that what the noble Lord largely had in mind were the speech therapist cases. They are difficult. We all know that swathes of management and personnel consultants make a living out of trying to organise personnel and pay structures. Frequently no two such cases are alike. It is not always easy to ensure that a decision on one case should apply to all the others. I am sure that the noble Lord would be the last to suggest that this is an easy field.
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