Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill
1

A
Bill
To
Make provision about representation of and assistance to complainants in
discrimination proceedings before employment tribunals and the
Employment Appeal Tribunal; to establish and confer functions upon the
Tribunal Representation and Assistance Board; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Constitution and funding of the Board
1
Tribunal Representation and Assistance Board
(1)
There shall be a body known as the Tribunal Representation and Assistance
Board (referred to in this Act as “the Board”).
(2)
Schedule 1 (which makes provision about the Board’s constitution and related
5
matters) has effect.
2
Principal duties and functions of the Board
(1)
The principal duties of the Board shall be to ensure that assistance and
representation are—
(a)
available to all eligible complainants in—
10
(i)
proceedings to which this Act applies, and
(ii)
relevant activities preparatory to such proceedings,

so as to provide that there is equality of arms in those proceedings;
(b)
available to eligible complainants wherever practicable from accredited
bodies; and
15
(c)
provided to eligible complainants at the lowest cost commensurate
with the fulfilment of the objective set out in paragraph (a).
(2)
The Board shall have the functions of—

Bill 14 54/1

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill
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(a)
accrediting bodies and monitoring the provision of assistance and
representation by accredited bodies or otherwise in accordance with
the provisions of section 4;
(b)
securing the provision of assistance and representation in designated
areas by accredited bodies or otherwise in accordance with the
5
provisions of section 5;
(c)
issuing and revising codes of practice on the operation of this Act in
accordance with the provisions of section 6; and
(d)
promoting awareness of the provisions of this Act amongst persons
likely to be affected by them.
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(3)
The Board may, for any purpose connected with the performance of its
functions—
(a)
make proposals or give other advice to any Minister of the Crown as to
any aspect of the law or a proposed change to the law,
(b)
make proposals or give advice to any public authority as to the practical
15
application of any law,
(c)
undertake, or arrange for or support (whether financially or otherwise), the
carrying out of research or the provision of advice or information.
(4)
Nothing in subsection (3) is to be regarded as limiting the Board’s powers.
(5)
The Board may make charges for facilities or services made available by it for
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any purpose.
(6)
In this section—
“assistance” has its wider meaning;
“the law” includes Community law and the international obligations of
the United Kingdom;
25
“public authority” has the same meaning as in section 6 of the Human
Rights Act 1998 (c. 42) (acts of public authorities).
3
Funding of the Board
(1)
At least three months before the beginning of each relevant financial year, the
Board shall prepare and send to the Lord Chancellor an estimate of its funding
30
needs for that financial year.
(2)
An estimate prepared under subsection (1) shall specify the needs in relation
to each of the functions of the Board set out in section 2(2) and the overall
funding needs of the Board.
(3)
It shall be the duty of the Lord Chancellor to secure that there is paid to the Board out
35
of money provided by Parliament in respect of each financial year an amount that is
equal to or greater than the total funding needs of the Board contained in the estimate
relating to that financial year prepared under subsection (1).
(4)
In pursuance of his duty under subsection (3), the Lord Chancellor may direct—
(a)
the Secretary of State, and
40
(b)
an equality Commission,

to pay to the Board such amounts as may be specified in the direction.
(5)
In this section, “relevant financial year” means each financial year referred to
in paragraph 15(7)(b) of Schedule 1.

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill
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Accreditation and provision of assistance and representation
4
Accreditation and monitoring
(1)
The Board shall accredit bodies that may tender for the provision of assistance
and representation in a designated area under section 5.
(2)
The system of accreditation shall include provision for the monitoring of the
5
services provided by accredited bodies or otherwise and for the withdrawal of
accreditation from any bodies providing services of an unsatisfactory quality.
(3)
The Board shall set and monitor standards in relation to the provision of
assistance and representation by an accredited body or otherwise under
section 5.
10
(4)
Standards under subsection (3) shall in particular to be set so as to secure that
accredited bodies do not obtain or seek to obtain a profit from the provision of
assistance and representation under section 5.
5
Assistance and representation provided by accredited bodies or otherwise
(1)
The Board shall invite tenders for the provision in each designated area by an
15
accredited body of assistance and representation to all eligible complainants
in—
(a)
proceedings to which this Act applies, and
(b)
relevant activities preparatory to such proceedings.
(2)
Invitations to tender under subsection (1) shall—
20
(a)
be published in such form as the Board considers appropriate,
(b)
specify the period for which the functions specified in subsection (1) are
to be provided in a designated area,
(c)
require accredited bodies to provide such other information as the
Board considers necessary for the purpose of enabling it to come to a
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decision under subsection (3).
(3)
The Board shall (subject to subsection (5)(b)) select an accredited body to carry
out the functions specified in subsection (1) in a designated area from amongst
those who have responded to the invitation to tender.
(4)
Where an accredited body has been selected under subsection (3), the Board
30
shall—
(a)
make such arrangements as it considers appropriate for the purpose of
enabling the accredited body to carry out the functions specified in
subsection (1) in the designated area,
(b)
in particular, make arrangements for the payment to the accredited body of
35
such amounts as are reasonably incurred by that accredited body in carrying
out those functions, and
(c)
monitor the performance of those functions by the accredited body in
accordance with section 4.
(5)
Where—
40
(a)
no responses by accredited bodies to an invitation to tender are
received in respect of a designated area, or

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill
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(b)
the Board is not satisfied that it is appropriate to select any of the
accredited bodies that have responded to carry out the functions
specified in subsection (1) in a designated area,

the Board shall secure the performance of the functions specified in subsection
(1) in that designated area otherwise than by an accredited body, having regard
5
to its principal duties under section 2(1).
(6)
For the purposes of subsection (5), the Board may—
(a)
make such arrangements as it considers appropriate for the purpose of
enabling bodies or persons to carry out the functions specified in
subsection (1) in the designated area,
10
(b)
in particular, make arrangements for the payment to bodies or persons of such
amounts as are reasonably incurred by bodies or persons in carrying out those
functions, and
(c)
monitor the performance of those functions by bodies or persons in
accordance with section 4.
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(7)
Where the Board is satisfied that the performance of functions by an accredited
body or another body or person is unsatisfactory, the Board may terminate any
arrangement under subsection (4) or (6).
(8)
The Board shall designate areas for the purposes of this section (to be known
as “designated areas”), having regard to the desirability of ensuring that,
20
wherever practicable, the areas so designated are the areas for the time being
designated for the purpose of determining the jurisdiction of tribunals.
General provisions about the Board
6
Codes of practice
(1)
The Board shall prepare and issue codes of practice for the purpose of giving
25
practical guidance to accredited bodies and other bodies and persons carrying
out functions under this Act.
(2)
The Board shall deal in particular under subsection (1) with the determination
of whether or not a person is an eligible complainant.
(3)
The Board shall—
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(a)
keep any code of practice under this section under review, and
(b)
prepare a revised code of practice when appropriate.
(4)
Before preparing a code of practice under this section, the Board shall
consult—
(a)
the equality Commissions,
35
(b)
the Lord Chancellor, and
(c)
such other bodies and persons as appear to the Board to be appropriate.
(5)
The Board shall publish a code of practice issued under this section in such a
way as, in its opinion, is likely to bring the code of practice to the attention of
those interested.
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7
Agency arrangements and provision of services
(1)
Arrangements may be made between the Authority and an equality
Commission for—

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill
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(a)
any functions of the Board to be carried out by, or by members of staff
of, that Commission, or
(b)
the provision by that Commission of administrative, professional or
technical services to the Board.
(2)
Arrangements under subsection (1)(a) shall not affect responsibility for the
5
carrying out of the Board’s functions.
8
Annual report
(1)
As soon as practicable after the end of each financial year, the Board shall
prepare a report in respect of its activities during that financial year.
(2)
The Authority shall send each report under this section to—
10
(a)
the Lord Chancellor, and
(b)
the Secretary of State,

as soon as practicable after the end of the period to which the report relates.
(3)
The Lord Chancellor shall lay a copy of each report received by him under this
section before each House of Parliament.
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(4)
In this section, “financial year” has the meaning given by paragraph 15(7) of
Schedule 1.
9
Duties in relation to carrying out functions
(1)
The Board shall carry out its functions effectively, efficiently and economically.
(2)
In carrying out its functions, the Board must, so far as relevant, have regard to
20
the principles of best regulatory practice (including the principles under which
regulatory activities should be transparent, accountable, proportionate,
consistent and targeted only at cases in which action is needed).
10
Consequential amendments
Schedule 2 (which makes consequential amendments of other Acts) has effect.
25
Interpretative provisions
11
Proceedings to which this Act applies and relevant preparatory activities
(1)
This Act applies to proceedings—
(a)
before a tribunal in respect of a complaint under—
(i)
section 2 of the 1970 Act (disputes as to, and enforcement of,
30
requirement for equal treatment),
(ii)
section 63 of the 1975 Act (jurisdiction of employment
tribunals),
(iii)
section 54 of the 1976 Act (jurisdiction of employment
tribunals),
35
(iv)
section 17A of the 1995 Act (enforcement, remedies and
procedure),
(v)
Regulation 28 of the Religion or Belief Regulations (jurisdiction
of employment tribunals), and

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill
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(vi)
Regulation 28 of the Sexual Orientation Regulations
(jurisdiction of employment tribunals); and
(b)
on an appeal to the Appeal Tribunal arising from any decision of, or
arising in any proceedings before, a tribunal in respect of a matter
referred to in paragraph (a).
5
(2)
For the purposes of subsection (1)(a), “proceedings” before a tribunal includes
proceedings under a conciliation procedure prescribed under regulations
made under section 19 of the 1996 Act (conciliation procedure).
(3)
In this Act, “relevant activities preparatory to proceedings to which this Act
applies” means—
10
(a)
reaching a decision on whether to institute proceedings to which this
Act applies, and
(b)
considering actions as an alternative to the institution of such
proceedings.
12
Meaning of “eligible complainant”
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(1)
In this Act, “eligible complainant” means a person who meets each of the
conditions specified in subsections (2) to (5).
(2)
The condition specified in this subsection is that the person is—
(a)
undertaking relevant activities preparatory to proceedings to which
this Act applies in which he would be the complainant,
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(b)
making a complaint under one of the provisions specified in section
11(1)(a)(i) to (vi), or
(c)
instituting or pursuing proceedings on an appeal to the Appeal
Tribunal arising from any decision of, or arising in any proceedings
before, a tribunal in respect of a matter referred to in paragraph (b).
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(3)
The condition specified in this subsection is that the person is not—
(a)
making a complaint under one of the provisions specified in section
11(1)(a)(i) to (iv), and
(b)
receiving assistance under—
(i)
section 66 of the 1976 Act (assistance by the Commission for
30
Racial Equality), or
(ii)
section 30 of the Equality Act 2005 (c. 00) (legal assistance).
(4)
The condition specified in this subsection is that the person is not receiving
assistance from a trade union in making his complaint or instituting
proceedings.
35
(5)
The condition specified in this subsection is that the person has requested
representation or assistance or both.
13
Wider meaning of “assistance”
For the purposes of this Act, the wider meaning of “assistance” may include—
(a)
giving advice;
40
(b)
procuring or attempting to procure the settlement of any matter in
dispute;
(c)
arranging for the giving of advice or assistance by a solicitor, counsel or
advocate;

Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill
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(d)
arranging for representation by any person, including all such
assistance as is usually given by a solicitor, counsel or advocate in the
steps preliminary or incidental to any proceedings, or in arriving at or
giving effect to a compromise to avoid or bring to an end any
proceedings;
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(e)
any other form of assistance which the body giving the assistance may
consider appropriate; and
(f)
the payment of—
(i)
any deposit that may be required by a tribunal under regulations
under section 9(2)(a) of the 1996 Act (pre-hearing reviews and
10
preliminary matters),
(ii)
any costs or expenses that fall to be made under regulations under
section 13 of that Act (costs and expenses: tribunal),
(iii)
any costs or expenses that fall to be made under section 34 of that Act
(costs and expenses: Appeal Tribunal),
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(iv)
the reasonable costs of an eligible complainant in complying with any
order of a tribunal issued under rule 28 of Schedule 1 to the
Employment Tribunal Regulations other than a costs or expenses
order, or
(v)
the reasonable travel expenses of an eligible complainant for
20
attendance at proceedings of a tribunal or of the Appeal Tribunal in
respect of his complaint.
14
General interpretation
In this Act—
“the 1970 Act” means the Equal Pay Act 1970 (c. 41);
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“the 1975 Act” means the Sex Discrimination Act 1975 (c. 65);
“the 1976 Act” means the Race Relations Act 1976 (c. 74);
“the 1995 Act” means the Disability Discrimination Act 1995 (c. 50);
“the 1996 Act” means the Employment Tribunals Act 1996 (c. 17);
“accredited bodies” means bodies accredited in accordance with the
30
provisions of section 4;
“the Appeal Tribunal” means the Employment Appeal Tribunal provided
for under Part 2 of the 1996 Act;
“assistance”, when used with its wider meaning, has the meaning given
by section 13;
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“the Board” means the Tribunal Representation and Assistance Board
established under section 1;
“the Commission for Equality and Human Rights” has the meaning given
by Part 1 of the Equality Act 2005 (c. 00);
“the Commission for Racial Equality” has the meaning given by Part 7 of
40
the 1976 Act;
“designated areas” means areas designated in accordance with the
provisions of section 5(8);
“eligible complainant” has the meaning given by section 12;
“the Employment Tribunal Regulations” means the Employment
45
Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I.
2004/1861);
“the equality Commissions” means—
(a)
the Commission for Equality and Human Rights, and