Mr. Mark Simmonds (Boston and Skegness): I hope that the Committee will forgive my voice today. Does the hon. Gentleman also think it appropriate that in the case of sexual harassment, the position should be mirrored for an employer, if the employer, rather than the employee, had been sexual harassed?
Brian Cotter: Yes, it is absolutely clear that cases such as this are extremely difficult. I recall a similar case during my business life, and it was very difficult. It is a very difficult field indeed. I know that women can speak more strongly on this issue than men because they can feel intimidated by what some people may consider a minor sexual problem with their employer. The amendment reasonably draws attention to that factor, and it is designed to ensure that regulations drawn up by the Secretary of State must be drafted in such a way as not to exclude claims automatically in the exceptional circumstances that I have described.
I urge hon. Members to support the amendment because it would ensure that those who have a genuine grievance but are, through no fault of their own, ''unable''-an appropriate word because it accurately describes the situation such a person would be in-to follow internal procedures are not denied the right to seek redress.
Unlike the Minister, I am not on Neurofen, but I am struggling to deal with things, having had a sleepless night. This is an important issue, and there are difficulties in addressing the problems of those who are involved in the workplace, or in any situation in which sexual harassment occurs, in the manner laid down by the law. I hope that he will give a clear and adequate answer to that point.
Mr. Lloyd: All Committee members will sympathise with the hon. Member for Weston-super-Mare (Brian Cotter) on his sleepless nights. It is a good job that we have not gone back to the old days when Committees regularly sat through the night, which meant that everybody was guaranteed those delights.
Amendment No. 63 provides me with the opportunity briefly to probe the clause's intentions with my hon. Friend the Minister. He will appreciate that with the addition of the word ''shall'' the clause could become draconian. Even with the word ''may'', it would allow, in the far distant future, a Conservative Secretary of State enormous power to drive a coach and horses through the Bill's intentions. It is important for him to flesh out the circumstances in which the Government would make regulations.
The hon. Gentleman has raised examples of cases in which, as my hon. Friend has made clear, the Government do not want to penalise would-be applicants to a tribunal. Because the Committee is being invited to pass this wide-ranging clause without any example regulations, it would help if my hon. Friend were to tell us exactly what his intentions are and how far and wide that will go. That would help to move the debate on and ensure that Committee members such as myself feel more comfortable.
Alan Johnson: This is an important part of our deliberations. We have set up a system under which every workplace must have grievance and discipline procedures. On the previous clause, we agreed that there should be mitigation for both respondents and applicants who do not use those procedures. Now we are discussing whether claims should enter the employment tribunals system if they have not completed the internal procedure. It is an important area, and I understand hon. Members' concerns, which is why I shall take some time to set out the Government's position.
The Bill presents a mutually supporting package of proposals to encourage the use of internal procedures, and clause 33 is an important part of that because it deals with the admissibility of tribunal applications. Employment tribunals already assess applications against a set of qualifying criteria. Most notably, they can rule applications out of time if they are not submitted within a set period, which will usually be three months. Under clause 33, we intend to establish new admissibility criteria against which tribunal applications will be judged. The criteria will be based on the statutory procedures and will be introduced by regulation under the power conferred on the Secretary of State in subsection (1).
It may help Committee members if I explain how the Government intend to use this power. I hope that I can reassure my hon. Friend the Member for Manchester, Central and the hon. Member for Runnymede and Weybridge. We propose to set admissibility criteria linked to the initial stages of the statutory grievance procedure. The applicant should be required to complete at least step one of the procedure, the sending of the written complaint, before the tribunal can admit an application. In addition, a period-say, four weeks-should elapse after the step one letter has been sent before an application can be admitted. That ensures that the parties have time to begin discussing the grievance, which should ensure that the grievance is at least aired and clarified before an application is made. If the dialogue proved productive, I would expect many potential applicants to defer submitting their tribunal application beyond the end of set period while the procedure was used more fully. Clauses 31 and 32 should also encourage them to do this.
Those two admissibility criteria, the sending of the step one communication and the passing of a set period thereafter, would apply to most jurisdictions mentioned in schedule 3. However, we do not intend that they should apply to unfair dismissal, which must be excluded because dismissals are preceded by employer-driven actions under the statutory dismissal procedure. It would be inappropriate to make tribunal applications by a former employee dependent on the action or inaction of the employer. The hon. Member for Tatton, who is not in his place, raised that point earlier.
The Government are mindful that we do not want to create a complicated admissibility system, which is a point that repeatedly came up in our consultations. We do not want to create scope for additional disputes to arise between the parties, especially by the minority of unscrupulous employers who would want to delay the processing of an application. That would potentially clog up the tribunal system with calls for many more preliminary hearings.
We believe that we will avoid these problems because the two criteria are easy to understand and apply, and it should be simple for applicants, employers and tribunals to verify whether they have been met. Our approach should not affect or restrict access to justice. It merely sets reasonable preconditions for the making of applications to tribunals. These criteria can apply to all situations and should not be difficult to meet.
We recognise, however, that there will be rare cases in which the threat of violence or serious personal harassment may make it dangerous or intimidating for applicants to take step one action before making an application. We therefore intend to use the regulations to define circumstances in which tribunals may admit claims where the two admissibility criteria have not been met.
We therefore agree with the point the Liberal Democrats are making in amendment No. 46 that there should be some flexibility in the admissibility regime to allow for special cases. We hope to define these exemptions as tightly as possible in the regulations to ensure that the tribunals are not forced as a matter of course to hold preliminary hearings on the issue. The ''just and equitable'' formulation in the amendment is too wide.
In developing an admissibility policy, the Government have been concerned to strike a balance between the key aims of ensuring that claims are not unreasonably deterred and making certain that there is communication in the workplace between employees and employers.
Far too often we see claims taken to tribunal where there has been no discussion between the individual and their manager. In 62 per cent. of claims surveyed in 1998, there was no meeting between the parties before the claim was lodged. In 37 per cent. of applications, there was no attempt to resolve the problem before the application was made. The Government intend to change that situation because litigation is an expensive and inflexible route to resolution; problems caught early are easier to resolve.
We will make concerted efforts to publicise the new admissibility criteria, but it is inevitable that some individuals will be unaware of them. There will be cases in which, through lack of awareness, people make inadmissible applications. We are keen to ensure that such individuals are not debarred from taking their grievances through the tribunal system. In most cases, we intend to give them a second chance to submit an application meeting the admissibility criteria. That will involve some extension of the normal time limits for making applications.
The regulations are important and the Government will consult widely on them. I hope that my explanation is sufficient and will mean that the hon. Gentleman will not press the amendment. I guess that amendment No. 63 was intended as a probing amendment. If so, I hope that the explanation that I have given will suffice. If not, I can assure the Committee that the Government fully intend to implement the clause and that the amendment is unnecessary.
Amendment No. 59 seems intended to ensure that the admissibility criteria apply to all jurisdictions listed in schedule 3. It will be apparent from my description of the policy in clause 33 that the Government intend admissibility to apply to grievances and not to claims arising out of the disciplinary process. The reason is quite simple: as discussed already, it would be unfair and unreasonable to make an individual's access to an employment tribunal contingent on a statutory procedure being followed when only the employer can initiate that procedure. Access should depend on an individual's own actions, not on someone else's. It would, therefore, be inappropriate to apply the clause to all jurisdictions in schedule 3. I call on the hon. Gentleman to withdraw his amendment.
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