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Session 1997-98
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Employment Rights (Dispute Resolution) Bill [H.L.]
  The Bill amends the law relating to the resolution of individual employment rights disputes.
  It renames industrial tribunals as employment tribunals, permits new procedural rules to be introduced to streamline certain of the procedures of tribunals and extends their jurisdiction.
  The Bill provides for the Advisory, Conciliation and Arbitration Service (ACAS) to draw up an arbitration scheme for the resolution of unfair dismissal disputes (with a power for the Secretary of State to extend this to other areas of employment law). It also amends the law relating to compromise agreements and dismissal procedures agreements and provides for an extension of the powers of conciliation officers.
  The Bill introduces measures to encourage the use by employees and employers of internal appeal procedures in cases of dismissal and makes provision about compensation in cases of unfair dismissal which involve disability discrimination.
  Clause 1 provides for the renaming of industrial tribunals as employment tribunals.
  Clause 2 amends the Secretary of State's powers to make tribunal procedure regulations. The regulations will be able to provide that proceedings before an employment tribunal may be determined without a "full" hearing where-
      (a) both parties have given their consent for the proceedings to be determined on the basis of written evidence alone;
      (b) the respondent has done nothing to defend the case;
      (c) it appears that the tribunal does not have the power to grant the relief claimed or that the applicant is not entitled to the relief he is claiming;
      (d) the case is bound to be dismissed because of the decision of a superior court; or
      (e) the proceedings relate only to a preliminary issue.
  Clause 3 extends the categories of case where an employment tribunal must consist of the chairman alone (unless he exercises the discretion to sit as a tribunal of three) to proceedings about-
      (a) the right not to suffer deductions of unauthorised or excessive trade union subscriptions;
      (b) an employer's failure to pay in whole or in part remuneration under a protective award;
      (c) the right to receive a written statement of employment particulars, the right to receive a statement of changes in employment particulars and the right to be given an itemised pay statement;
      (d) guarantee payments;
      (e) the right to remuneration where an employee is suspended on medical grounds;
      (f) redundancy payments;
      (g) an application for an employer's payment against the Secretary of State;
      (h) an appointment of an authorised person to conduct certain proceedings (under the Employment Rights Act 1996) where an employee has died and there are no personal representatives; or
      (i) a failure to pay compensation under regulation 11(5) of the Transfer of Undertakings (Protection of Employment) Regulations 1981.
  It also makes it clear that tribunal procedure regulations may authorise a chairman to hear proceedings of the types specified in clause 2, to carry out pre-hearing reviews and to hear and determine preliminary issues (including after hearing evidence from witnesses where the procedure regulations permit this).
  Clause 4 provides that a chairman may sit with only one other member where the parties present or represented at the hearing all agree.
  Clause 5 further amends the Secretary of State's powers to make tribunal procedure regulations. The regulations will be able to provide that an act which may be done by a chairman may be done by a legal officer unless it involves-
      (a) the determination of proceedings (otherwise than where the parties have agreed the terms of the determination or the person bringing the proceedings has withdrawn the case); or
      (b) the carrying out of a pre-hearing review.
  chedule 1 includes provision for the payment of salaries to legal officers.
  Clause 6 transfers jurisdiction in complaints against employers about wrongful deduction of trade union political fund contributions, or refusal to deduct trade union dues, from county courts (in England and Wales) and sheriff courts (in Scotland) to employment tribunals. Proceedings are to be heard by a tribunal consisting of the chairman alone unless he exercises the discretion to sit as a tribunal of three.
  Clause 7 will enable ACAS to provide, fund and promote a scheme for the arbitration of unfair dismissal disputes subject to the Secretary of State's approval. The scheme may be extended by order to other classes of disputes.
  Clause 8 provides that an agreement to submit a dispute to arbitration in accordance with the ACAS scheme will (if made after the intervention of a conciliation officer or in compliance with the requirements about compromise agreements) oust the jurisdiction of employment tribunals in relation to the dispute under the Sex Discrimination Act 1975, the Race Relations Act 1976, the Trade Union and Labour Relations (Consolidation) Act 1992, the Disability Discrimination Act 1995 or the Employment Rights Act 1996But an agreement to submit a dispute to arbitration otherwise than in accordance with the ACAS scheme cannot oust that jurisdiction.
  Clause 9 amends the description of persons from whom advice relating to compromise agreements must be sought if the agreement is to be valid. Such persons must be "relevant independent advisers" and amendments made by Schedule 1 define this term to include-
      (a) a qualified lawyer;
      (b) an officer, official, employee or member of an independent trade union who has been authorised by the trade union to give advice;
      (c) a person who works at an advice centre and has been authorised by the advice centre to give advice; and
      (d) a person of a description specified by order by the Secretary of State.
  Clause 10 clarifies the law relating to compromise agreements. It provides that either-
      (a) a contract of insurance; or
      (b) an indemnity provided for members of a profession or a professional body,
      covering the risk of a claim in respect of loss arising in consequence of advice provided about a compromise agreement will constitute sufficient cover for the agreement to be valid.
  Clause 11 extends the duties of conciliation officers to claims relating to statutory redundancy payments. It also provides that the Secretary of State will act as guarantor (in the same way as he already acts in respect of statutory redundancy payments) if an employer either will not, or (because of insolvency) cannot, pay to an employee a sum due under an agreement settling a dispute about a statutory redundancy payment which has been arrived at after conciliation or is a compromise agreement
  Clause 12 amends the law relating to dismissal procedures agreements. Such agreements will either need to provide for arbitration or at least to provide the parties with the right to arbitration on a point of law. An award made under a dismissal procedures agreement is to be enforceable like an arbitration award. The clause also provides for the Secretary of State to pay to the employee in a case where the employer is insolvent and has not paid the award an amount up to that which could otherwise have been awarded as the basic award for unfair dismissal
  Clause 13 is designed to encourage employers and employees to use internal appeals procedures. When determining unfair dismissal cases an employment tribunal will have power to reduce the compensatory award where an employee has, at the time of (or within a reasonable period after) the dismissal, been told about any appeal procedure provided by the employer but has failed to make use of the procedure. A tribunal will also be able to make a supplementary award to an employee where the employer does not allow the employee to use an appeal procedure provided by himThe tribunal is to take account of what would have been the likely outcome of any appeal under the procedure in assessing the amount of the reduction or supplementary award but in no case will its amount exceed the amount of two weeks' pay.
  Clause 14 provides for the tribunal to make a higher additional award to an unfairly dismissed employee who is not reinstated or re-engaged as ordered by the tribunal in a case where the dismissal is an act of discrimination within the meaning of the Disability Discrimination Act 1995. It also makes provision to prevent double recovery where compensation is awarded in respect of the same act under the provisions both of the Employment Rights Act 1996 relating to unfair dismissal and of the Disability Discrimination Act 1995
  Clause 15 introduces Schedules 1 and 2 which respectively make miscellaneous amendments and effect consequential repeals. Schedule 1 includes, in particular, a provision (in paragraph 17(2)) restoring the jurisdiction of the Employment Appeal Tribunal to hear appeals from employment tribunal decisions about breaches (or alleged breaches) of contract. That jurisdiction was inadvertently removed by the Industrial Tribunals Act 1996.
  Clause 16 provides that the Bill extends only to England and Wales and Scotland but provides that corresponding provision for Northern Ireland may be made by an Order in Council under the Northern Ireland Act 1974 subject to the negative resolution procedure.
 Financial effects of the Bill
  The Bill's provisions are not expected to lead to an overall increase in public expenditure.
  The operation of the ACAS scheme for the arbitration of unfair dismissal disputes and the appointment of legal officers will involve additional expenditure but these costs will be offset by savings resulting from the Bill's measures to improve the efficiency of tribunals and to reduce their caseload.
  Claims against the Secretary of State for outstanding basic awards for compensation ordered under a dismissal procedures agreement where the employer is insolvent would currently be paid on an "ex gratia" basis. Placing such payments on a proper statutory footing will therefore, in practice, make no difference to the amounts paid out, though it will enable the Secretary of State to recover any payments from the assets of the insolvent company. But any financial implication of these changes will be small as there is in fact only one dismissal procedures agreement currently designated - that of the Joint Industry Board for the Electrical Contracting Industry
 Effects of the Bill on public service manpower
  The provisions of the Bill will have no substantial impact on public service manpower. The Bill provides for the appointment of legal officers. But few are likely to be appointed in the near future: use of legal officers is to be the subject of a pilot study before it is decided whether to appoint them nationwide.
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Prepared 15 January 1998