Employment Bill

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Mr. Hammond: I beg to move amendment No. 25, in page 33, line 2, at end add—

    '( ) After that section there is inserted—

    ''34A Compensation for preparation time

    Appeal Tribunal procedure rules shall include provision for authorising an Appeal Tribunal to order a party to proceedings before it to make a payment to any other party in respect of the time spent by that other party in preparing his case and shall make provision for taxing or otherwise settling the amount of payment to be made or for fixed sums to be payable by reference to criteria set out in the rules''.'.

In Committee, the first clause of the Bill or a part of the Bill tends to be the subject of a rather lengthy debate, which I suspect is partly due to the ranging-shot principle. In debates on clause 22, we covered an awful lot of general ground that also applies to the whole of part 2. For that reason, I hope that we can make rapid progress through the remainder of this part.

The amendment is simple. I propose to add to the arrangements for employment appeal tribunals a provision on compensation for preparation time, mirroring, mutatis mutandis, the provisions in new section 13A in clause 22, which we have discussed. The Minister made the point that it is almost unheard of for people not to be legally represented at employment appeal tribunals, and I do not dispute that. However, he also said that the fact that a person was legally represented would not necessarily prevent them from recovering in-house preparation time costs. We had a debate earlier about the economics of using in-house support to reduce external legal bills. That would be to the ultimate good of the entire system, with the notable exception of lawyers.

I hope that the Minister will accept amendment No. 25 as a logical extension of the Government's framework, although I recognise that there will be fewer employment appeal tribunal cases than employment tribunal cases in which it would be appropriate.

Alan Johnson: The hon. Gentleman gets to the nub of the problem early on. Most applicants and respondents are not legally represented at employment tribunals, whereas practically everyone is at an employment appeal tribunal.

The Government do not agree with the proposal, although we have given it a great deal of thought. When we considered the changes to clause 22, we examined whether we should introduce the measures in clause 23 as well. The reason for the different treatment is our view that provisions for costs and preparation time awards should be appropriate to the nature of the tribunal. Proceedings before the employment appeal tribunal deal largely with points of law. As such, they require less gathering and preparing of factual evidence by the parties. The situation that we described in clause 22, in which workers sit around the kitchen table and put lots of effort into preparing their case, does not apply. Most are legally represented.

Another major difference is that litigants in person to an employment appeal tribunal can recover their costs, as in the civil courts. We dealt with that inconsistency in clause 22. A cost regime is already in place for the employment appeal tribunals; adding compensation for preparation to that regime is unnecessary.

The first part of the amendment, in which ''shall'' creeps in instead of ''may'', obliges the Lord Chancellor, who is responsible for the employment appeal tribunal rules, to include the provision in the rules. The amendment does not deal with the Secretary of State but the judiciary. In the same way that we saw no reason to bind the judgment of the Secretary of State, the Government see no reason to bind the judgment of the Lord Chancellor in the matter of employment appeal tribunal rules. We take the view that such matters can be safely left to discretion. For those reasons, I hope that the hon. Gentleman will withdraw the amendment.

Mr. Hammond: I have listened carefully to what the Minister said. I am pleased to hear that he has considered the argument for symmetry. The least persuasive part of his argument was that fettering the discretion of the Lord Chancellor was unthinkable. Some of us might regard even an illustrious person such as the Lord Chancellor as a mere politician rather than a haughty judicial personage. However, if the Minister has given the issue genuine consideration and reached the conclusion that it would not be appropriate, I am prepared to withdraw my amendment. Our noble friends tend to scrutinise and ponder such issues more deeply than we do, and I am sure that it will be discussed in the other place if others believe that we need to go around the loop again. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Hammond: I have just a couple of questions for the Minister; we have already dealt with many of the substantive issues. Clause 23 amends section 34 of the Employment Tribunals Act 1996, which allows the award of costs or expenses if:

    ''(a) the proceedings were unnecessary, improper or vexatious, or

    (b) there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings.''

The replacement wording in clause 23 says merely:

    ''Appeal Tribunal procedure rules may include provision for the award of costs or expenses.''

On the face of it, the primary legislation removes the constraint on the circumstances in which costs or expenses can be awarded. What is the practical effect of that? Does the Minister intend to reimpose the limitation by secondary legislation? It is an extremely poor general principle to amend primary legislation to make it more universal and then to reimpose precisely the same restriction by secondary legislation, which can be amended by further secondary legislation. It is a retrograde step. If it is not simply that and the Minister intends that the power will operate in a different way as a result of the change to the wording in the primary legislation, can he explain precisely how it will work?

Alan Johnson: I hope that the Committee will agree clause 23. It is important. It introduces the same ability for employment appeal tribunals to make costs awards against representatives and to prevent that award being clawed back from the client.

Let us be clear, we are not changing the basis for costs awards at the EAT. The wording is slightly different and the hon. Gentleman quoted it. It is

    ''the proceedings were unnecessary, improper or vexatious, or

    b) there has been unreasonable delay''.

Unreasonable delay would obviously apply more to the employment appeal tribunal than to the employment tribunal. We are talking about someone taking a long time to decide to go to an appeal. We see no reason to change that. These circumstances, which closely mirror the employment tribunals, are set out in primary legislation. There is no need to repeat that in the clause. We now want to make provision for wasted cost. That is the purpose of the clause.

Mr. Hammond: It is not clear to me where that is set out in primary legislation because the wording in section 34 of the 1996 Act is being replaced by wording that does not contain the phrase ''unnecessary, improper or vexatious''. Can the Minister tell me where in the primary legislation that limitation is placed on the power?

Alan Johnson: I wish that I could. The circumstances in which costs can be awarded in employment tribunals and in employment appeal tribunals are already similar in practice. As we are introducing new powers for both the employment tribunals and employment appeal tribunals it makes sense to set them out in legislation in a consistent way.

Mr. Hammond: That is good paraphrasing. The Minister seems to be saying in a nutshell that he is taking the limitation out of the primary legislation and putting it back in secondary legislation. It is a retrograde step to depend increasingly on secondary legislation.

Alan Johnson: We seem to have a point here that I will look into. If we need to change that on Report or at some other stage, we will. I will examine the point and give the hon. Gentleman a reasoned response.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24


Mr. Hammond: I beg to move amendment No. 34, in page 33, line 10, after 'such', insert 'fixed'.

The Chairman: With this it will be convenient to take the following amendments: No. 26, in page 33, line 10, after 'period', insert 'not exceeding three months'.

No. 35, in page 33, line 11, at end insert

    'or for such extension of such fixed period as the Tribunal may order'.

No. 32, in page 33, line 23, leave out paragraph (a).

No. 33, in page 33, line 28, leave out paragraph (b).

Mr. Hammond: The amendments seek to do several specific things. Subsection (1) allows the fixing of a time and place for a hearing to be postponed. Amendment No. 34 would insert the concept that such a postponement should be fixed. That is not to say that it should not be subject to later extension but that it should fixed when it is introduced. Employers have expressed concern—although I have no doubt that people on both sides will be concerned—that unscrupulous parties may seek to delay proceedings coming to a tribunal when there is no reason to do so. For that reason, I hope that the Minister will be persuaded by the amendments or tell us that it was always his intention for regulations to provide that a fixed period, rather than a general, indefinite postponement, should be allocated for conciliation. Any attempt to conciliate before reaching a tribunal is obviously positive, and no one would disagree with trying to encourage a conciliated settlement whenever it is possible. The amendment would ensure that postponement for conciliation does not become a mechanism for serial slippage.

5.45 pm

Amendment No. 26 would define the fixed period as a period ''not exceeding three months''. The Minister could provide in regulations for the appropriate period allowed for conciliation, or delegate the power to the tribunal or conciliation officer, but the period should not be longer than three months. To avoid the measure becoming a mechanism for slippage in bringing cases to tribunal, we must ensure that the initial period is relatively short. I am open-minded about whether three months is the right period, and I would like to explore with the Minister the concept of imposing a maximum delay limit.

Amendment No. 35 would allow for an extension of the fixed period if the tribunal orders it. We are working somewhat in the dark, because we do not know what the regulations will propose. Will the tribunal decide to postpone the hearing for conciliation—hopefully for a fixed period—or will there be a general presumption of a period of postponement? In framing the amendment, we did not know whether the decision to grant a postponement extension would return to the tribunal or whether the tribunal would be involved actively for the first time in granting a fixed and generally applied extension. Perhaps the Minister will tell us how the regulations will work.

To summarise, the amendments provide that the period of postponement for conciliation is fixed, short and can be extended only with reference to the tribunal.

Amendments Nos. 32 and 34 deal with a slightly different point. Amendment No. 32 would leave out subsection (3)(a), which gives the Minister the power to provide for exceptions to the general rule that the conciliation officer should be sent notice of tribunal proceedings. It is a probing amendment. I am not suggesting that cases should not be excepted from that general rule, but it is important that we understand what the Minister has in mind as exceptions and that he makes a case for discriminating against or in favour of—whichever way we consider it—a certain class of cases.

Amendment No. 33 would leave out paragraph (b). Those hon. Members who have been involved in Committee work with me in the past, of whom I count you as one, Mr. Amess, know that I am not entirely disinterested in semantics. Paragraph (b) seems to deal with a very semantic point, and I cannot understand what it is designed to achieve. The Employment Tribunals Act 1996 requires parties to be notified

    ''that the services of a conciliation officer are available to them''.

For those words, paragraph (b) substitutes

    ''of the availability to them of the services of a conciliation officer''.

I pored over that provision with my finest-toothed comb, seeking to establish the substantive difference that it will make, on which Parliament's time is being spent. However, I came to the conclusion that it will not make one iota of difference to the operation of the 1996 Act.

It was impressed on me early in my parliamentary career that the first principle of drafting legislation is economy. We must never do anything that does not need to be done and we should not use three words where two will do—I must admit that I do not always apply that rule to my speeches.

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