Employment Bill

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Mr. Hammond: I am grateful to the Minister for addressing the issues that were raised in the last short debate about consultation, but will he confirm that it is not envisaged that the scope of delegating power to the discretion of the president through directions will be any wider in relation to employment tribunals by virtue of proposed new subsection (2) than the areas currently covered by the directions in the employment appeals tribunal? Proposed new subsection (2) could mean—if it were taken to its most ludicrous extreme—that the employment tribunal procedure regulations said simply that the president of the tribunal may make directions as to procedure. If that is to be the case, we need to know.

Alan Johnson: I can give the assurance that the hon. Gentleman seeks on that point. The other important point is that the regulations will empower tribunal

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presidents to issue practice directions, which will be the subject of debate. The affirmative procedure will be the proper procedure for that.

Mr. Hammond: All that the affirmative procedure means is that the Opposition do not have to keep their eyes open as we would otherwise. We will still have only 90 minutes to debate the provisions. Although we will not be dependent on the Government's largesse in agreeing to the debate, the period for scrutiny will be short.

Let us be explicit. Is the Minister saying that the area delegated to directions made by the president under employment tribunal procedure regulations will be no wider than the area delegated to directions under existing employment appeals tribunal procedures?

Alan Johnson: Yes.

Mr. Hammond: I am grateful to the Minister.

Question put and agreed to.

Clause 27 ordered to stand part of the Bill.

Clause 28

Pre-hearing reviews

Mr. Hammond: I beg to move amendment No. 42, in page 34, line 31, at end add—

    '(2) In section 9(1) of the Employment Tribunals Act 1996, after paragraph (a) there is inserted—

    ''(aa) for enabling the Tribunal to strike out any case which is found by a review conducted under paragraph (a) above to be without merit and where in the opinion of the Tribunal, no purpose would be served in allowing the case to be determined at a hearing, and''.'.

The clause removes the expression ''preliminary'' from the reference to the review procedure in existing legislation. The explanatory notes state that the purpose is to be crystal clear about the fact that the review procedure can be the end of the line in some cases and does not always have to be preliminary to a full hearing. The history and examples quoted by various organisations suggest that that is a sensible route to take.

The explanatory notes make it clear that the pre-hearing review as a result of the changes introduced by the Bill can lead to the dismissal or striking-out of a case. That may be crystal clear to parliamentary draftsmen but to anyone else reading the Bill, it would be as clear as mud. The clause inserts powers

    ''for authorising an employment tribunal to carry out a review of any proceedings before it at any time before a hearing held for the purpose of determining them''.

It says nothing about striking out or dismissing a case at that review.

The amendment would make the purpose of the change to section 9 of the Employment Tribunals Act 1996 crystal clear by stating that there will be a power to enable the tribunal to strike out a case and clarifying the grounds on which it can do so. This is a probing amendment in the sense that I have set out my view of what those grounds should be. If the Minister's view is different, I should like to hear it. If he will not accept

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the amendment, I should like him to clarify how the grounds will be specified and how the provision to strike out a case will be written into the Bill.

The amendment states that a case that the review finds to be without merit could be struck out, where

    ''in the opinion of the Tribunal, no purpose would be served in allowing the case to be determined at a hearing''.

Brian Cotter (Weston-super-Mare): If I may anticipate the hon. Gentleman, would the pre-hearing review not need to have access to all the evidence and papers before turning a case down along the lines in the amendment?

Mr. Hammond: The hon. Gentleman is right. Perhaps he should not anticipate, because I was not going to mention that point and we are now all looking forward to him making a short speech about it when I sit down. His point does not relate to the thrust of the amendment, but it is interesting. It takes us back to an aspect of the conciliation issue that we touched on at our previous sitting, which you will be disappointed to have missed, Mr. Benton—[Interruption.] I see that not all Labour Members agree, although I have found our proceedings riveting. There may be a reason for that, but we can discuss it another time.

We discussed the extent to which documents needed to be discovered at the beginning of the conciliation process. The hon. Member for Weston-super-Mare (Brian Cotter) mentioned discovery in the context of a pre-hearing review, and he will want to explore that further.

The amendment may not be perfectly drafted, but will the Minister confirm that it raises an issue with which we must deal? Will he confirm that there will be a power to strike out a case on review and tell us how that power will be delivered? Will it come through regulations or does it exist elsewhere, in which case I have simply missed it? Will the Minister also give us an estimation of the basis for striking out a case? Will regulations set out the type of cases that can be struck out or will the tribunal be left with a large degree of discretion?

To give the Committee an understanding of the real issue, will the Minister tell us what estimates he has made of the likely number of cases that will be struck out as a result of pre-hearing reviews? Does he expect 5 per cent., 10 per cent. or 20 per cent. of cases to be struck out? The Committee would see the matter quite differently if the figure was 0.25 per cent., not 25 per cent.

I look forward to the Minister's comments and to returning to some of the issues once we have had the benefit of his words of wisdom.

Brian Cotter: I shall take the opportunity presented to me by the hon. Member for Runnymede and Weybridge (Mr. Hammond). I shall make the point again, because although the Minister will respond, it was directed at the hon. Gentleman. The hon. Gentleman has proposed a way to make it clear that if a case is found to be without merit, it could be ruled out. The concern is that it would be unsatisfactory if the pre-hearing did not have full access to the papers and the case was ruled out.

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Mr. Hammond: Do the hon. Gentleman and his party support the principle that cases without merit should be capable of being struck out at a pre-hearing? I accept that he wants to ensure that proper information is available, but subject to the that caveat, does he support the principle of striking out cases that have no merit?

Brian Cotter: It is an area of concern that they should be struck out. I am not absolutely happy that the tribunal would have all the evidence at that juncture.

Alan Johnson: I shall try to offer the hon. Member for Runnymede and Weybridge the words of wisdom that he asked for. We intend to amend the employment tribunal regulations to include a strike-out power at the pre-hearing stage. At the moment, the tribunal cannot do that because section 9(1)(a) of the Employment Tribunals Act 1996 implies that pre-hearing reviews are preliminary considerations. That term suggests that they must be followed by a full hearing, no matter what the circumstances.

Misconceived applications—in answer to the hon. Gentleman's question, that is application that have no reasonable prospect of success—can be struck out at the pre-hearing stage. Clause 28 removes the implication that that cannot happen because the pre-hearing is a preliminary consideration and that it must be followed by a full hearing. That is the important element of the provision. The hon. Gentleman also asked whether we envisaged the power being used to a huge degree. We do not envisage it being used other than in extreme cases.

We should not forget that tribunals still have the power to order a deposit. The deposit used to be £150, but we increased it in July to £500 by statutory instrument. Tribunals can still insist on a deposit, but the main reason we do not expect the power to be used frequently is that touched on by the hon. Member for Weston-super-Mare. Pre-hearings do not take evidence, so people are not able to exchange all details of the case. Although it will be a matter for regulation, it would be unwise to suggest that giving employment tribunals the right to strike out such cases at pre-hearings would mean that they would use it to a huge degree.

Mr. Hammond: Presumably the Minister has identified a certain percentage of cases where deposits are required, but that is an inadequate response in cases that are so futile that they ought to be struck out. What percentage of cases that require deposits would he envisage being struck out under the new powers?

Alan Johnson: I cannot give a percentage because there are so few cases. Of the 299 pre-hearing reviews held during 2000-01, none of which were struck out because the power did not then exist, only one that was won by the applicant ended up before an employment tribunal. The vast majority were withdrawn or settled before the hearing. We are not talking about huge percentages. We are talking about a tidying-up amendment, because we believe that employment tribunals should have the power to strike out cases that

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have no reasonable prospect of success, as well as having the power to order a deposit to be paid before a case goes to a hearing.

10 am

Mr. Hammond: I am slightly mystified. I presume that in proposing an amendment the Government are responding to a mischief that they have identified. The Minister seems to be telling us that he wants to give himself an additional power, but when asked what he will do with that power, he replies that there is no problem to address. I am therefore mystified about the motive for introducing the power.

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