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Lord Archer of Sandwell: I fully understand my noble friend's concern and I think it is something which he and I may have a number of discussions about as the Bill proceeds. I hope he will not be disappointed if I say that I have reached the conclusion, at least provisionally, that it would not be appropriate to write that condition into the Bill, for two reasons.
First, I think we should be reluctant in principle to compel a party to take advice if he or she does not wish to do so. There is a right not to be advised if that is the individual's choice. That is the objection of principle. The more practical objection is that, if the Bill were to provide that consent would be ineffective in the absence of advice, it would be necessary for the tribunal and other parties to the proceedings to ascertain in advance of proceedings what advice had been given and taken, by whom and with what qualifications, since otherwise the determination would be invalidated. That would entail either an unacceptable administrative burden on all concerned or a continuing uncertainty as to whether or not the determination was valid. But, while for those reasons I would not seek to include in the Bill a provision about advice, it does not follow that I would not wish to see parties strongly encouraged to seek competent advice before consenting.
The third situation is where the applicant is seeking relief to which he or she is clearly not entitled, either because it is of a kind which the tribunal has no power to give or because it is clear on the face of the application that there is no entitlement--for example, if the applicant has not been in the respondent's employment for the requisite length of time.
It is thus hoped to minimise hearings which are simply wasted and to clear the lists for genuinely contested cases. In each of these situations existing rights of appeal or rights to apply to the tribunal for a review of the determination are, of course, preserved.
In all these situations, what is proposed is that tribunals may be empowered in suitable cases to determine proceedings without a full hearing. It is not proposed to make that procedure mandatory; it would be for the tribunal to decide whether it was suitable in a particular case.
Clause 3 extends the situations in which a decision may be made by a chairman sitting alone. Perhaps I may interject here that, although in some of the circles in which I move the term "chairman" is now out of fashion, since it is used in statutes and in the Bill I propose to use it on this occasion.
Lord Archer of Sandwell: My Lords, I am among those who believe that a tribunal of three persons brings strengths and advantages to proceedings relating to employment rights and I hope that the tribunal will continue normally to be constituted in that way.
The Green Paper suggested that in certain cases it should be mandatory for a chairman to sit alone. That proposal is not in the Bill. It would still be open to a chairman to sit in a tribunal of three if he or she thinks it appropriate in a specific case.
Clause 3 specifies a number of additional situations where it will be open to a chairman to sit alone. They relate to cases where it is unlikely that there will be major disputes of fact or arguments about what is fair or reasonable. Perhaps the most important relates to redundancy payments, where the dispute is normally over the application of a formula or sometimes simply where there has been a failure to pay money which is clearly due.
I turn now to the provisions relating to alternative methods of resolving disputes. Clause 7 empowers ACAS to prepare a scheme providing for arbitration in claims for unfair dismissal. At present it has no power to concern itself with arbitration in disputes between individual employees and employers. It will then be for the Secretary of State, if she approves the scheme, to
I stress that no one will be compelled to submit their dispute to arbitration. This procedure depends on the voluntary agreement of the parties and the jurisdiction of the tribunal will be excluded only if the agreement comes about in the course of action by a conciliation officer or if it is done by way of a valid compromise agreement after independent advice.
I should also stress that the parties are not precluded, if they wish to do so, from submitting their dispute to a private arbitration not within the ACAS scheme as they may now; but, if they do so, the jurisdiction of the tribunal will not be excluded. This represents an important change from the proposals in the consultation paper. It was then proposed to enable parties to exclude the jurisdiction of the tribunal by referring the dispute to any form of arbitration. That proposal is now confined to arbitration within the ACAS scheme.
It is intended in the first instance to confine the subject matter of this provision to claims for unfair dismissal. As at present drafted, the Bill proposes to empower the Secretary of State to extend the provision to other forms of dispute and she would do so by an order subject to the negative form of parliamentary control.
It appears to me that there are two objections to that. The first is one of principle. The Council on Tribunals has long taken the view that a new jurisdiction should be created, where possible by primary legislation, and failing that by order subject to the affirmative procedure. What is proposed in Clause 7 is the creation of further jurisdiction.
Secondly, while your Lordships may think that arbitration may be eminently suitable to resolve some disputes relating to unfair dismissal, often more informally and more expeditiously than would be possible with industrial tribunals, that is not true of all types of dispute, where sometimes the legislative provisions are complex. A proposal to extend the option to other jurisdictions should be subject to full parliamentary control. Accordingly, I propose to move an amendment in Committee providing that any such order should be subject to the affirmative procedure.
One other provision, designed among other purposes to reduce the workload of tribunals, is found in Clause 13. It provides that in unfair dismissal cases, if an employee fails to avail himself of an internal procedure for appealing against dismissal, or if an employer prevents an employee from availing himself of such a procedure, that may be taken into account by the tribunal in deciding the compensatory award.
The purpose of that provision is to encourage parties to resolve the dispute at its source, where possible, in preference to complaining to the tribunal. That is a general principle which runs through many systems of jurisprudence. The question is asked, "Have you availed yourself of the more immediate remedies?"
But there are three safeguards in the Bill: first, the amount of any reduction or supplementary award is limited to two weeks' pay; secondly, the provision operates against an employee only if he has been notified in writing of the existence of the internal procedure; and, thirdly, the tribunal has a general discretion to take into account all the circumstances of the case. The tribunal will, of course, take into account the ACAS code of practice on disciplinary practice and procedures, as required by Section 207 of the 1992 Act. That code declares it good practice to give notice of disciplinary action in writing and the employee should at the same time be told of any right of appeal. It also indicates that management should seek to secure the involvement of employees at all levels in introducing or changing new disciplinary procedures.
Clause 1 of the Bill proposes to rename industrial tribunals as employment tribunals because that term conveys more clearly what their function is intended to be. Some of your Lordships may remember that in 1968 the Donovan Commission suggested a change of name to "labour tribunals" but their suggestion was never implemented. This appears to be a suitable opportunity to address the question.
One has only to glance at the provisions which now form the jurisdiction of industrial tribunals to see how far we have come since the 1960s. There are rights for which some of us in this Chamber were campaigning for many years. The pendulum has swung backwards and forwards but in many ways we are a more just community than we were 30 years ago. Yet, justice depends on the effectiveness of its procedures and the price of effective procedures is eternal vigilance. The Bill is designed to tighten some procedural nuts and bolts. I commend it to the House.
Lord Wedderburn of Charlton: My Lords, I congratulate my noble and learned friend on bringing forward this important measure and hope that the Government will find ample time for its examination. It is more than a privilege to follow him so directly in the batting. It had been suggested to me that, although this was a Friday, I might find myself placed further down the list as some kind of nightwatchman. But there is no need for time to allow more coverage of the many points which he has explained to your Lordships. I understand that the Bill has found a certain degree of broad consent from the TUC and the CBI, subject to certain caveats. Of course, nobody is perfect, as my noble friend would be the first to say. It is, of course, our task to detect and correct any defects.
However, it will be necessary when we come to Committee to look very carefully at the proposals for chairman-only hearings or, in one case, chairman plus one wing member instead of the full three. The presidents of the tribunals have highlighted, as key to the system, the tripartite nature of the tribunals. Perhaps I may interpose a comment on the statistics. My noble and learned friend is correct in saying that the number of cases has gone up sharply. But studies of the tribunals suggest that the increase in the number of cases owes as much, if not more, to the increase in the nature of the jurisdictions which have been added--especially, of course, the Wages Act--as well as to social reasons, when certain types of case are likely to emerge from social change, such as redundancy. In that respect, it seems to be more than arguable that the tribunals are dealing with the average unfair dismissal case today with level pricing, a charge for the tribunals' account, as it were, which is slightly less than it used to be 10 or 15 years ago.
The last major research exercise on the tribunals was the work of Professor Linda Dickens at Warwick in 1985. I shall come back to that in a moment. But the Bill is being introduced at a time when the Department of Trade and Industry itself has commissioned research in Manchester, at UMIST, under Professor Goodman on the relationship between the tribunals and in-house procedure clauses on unfair dismissal, the outcome of which could be extremely important to Clause 13. I sent the Minister a note about one or two matters but I am afraid that at the time I was too full of antibiotics to expand on that. If we could have his response on the position of the Manchester research sometime before Committee, it would be more than welcome.
We must remember that, since their creation in 1964, the tribunals have become what the Ministry of Labour then predicted one year later; a nucleus of labour courts for individual protection rights. In parenthesis, perhaps I may say how sad it is that we are the only jurisdiction among comparable countries that does not have a ministry or department of employment or of labour which focuses national attention upon employment and industrial relations as a whole.
The rights of the weaker parties in employment law now depend significantly on the maintenance of the integrity of those tripartite tribunals. In understanding this Bill, one special difficulty--I put this point to my noble and learned friend as a matter to be thought about before Committee--is that the memorandum which accompanied the Conservative Bill in 1996 gave all kinds of illustrations about matters which on the face of the Bill itself are obscure. The best example is the creation of a new kind of judge called "a legal officer" who will decide interlocutory issues. I believe that was first discussed by the Justice report in 1987. I am sure that your Lordships will know that interlocutory issues are frequently crucial in litigation.
Because the Bill tells us nothing about the qualification or nature of those legal officers, although the schedule says that they are to be paid, it is rather difficult to know how to discuss them. Can we discuss them with reference to the 1996 memorandum or not? The text is the same as in the Bill but, for the rest, they are mysterious figures, hidden away, their wellbeing as uncertain as the health of Schrodinger's cat.
There is also a special problem in relation to the proposal, which is surely the central and major proposal of the Bill, for alternative dispute resolution of unfair dismissal cases with the assent of both parties by way of arbitration under an ACAS scheme having binding effect. The 1996 memorandum on that contained an annex outline--rather an unsatisfactory outline--of a scheme. But, naturally, the Bill does not hold any such assistance for us. Perhaps we may have a similar scheme from the department before Committee. It would be useful because, first, a number of trade unions and some employers have objections to extending the new procedure of arbitration to discrimination cases.
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