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Mark Tami: That is a crucial point, because not only the employee but the employer must be aware of the procedures. The grievance procedure allows an employee to raise an issue and have it dealt with. The vast majority of cases do not result in a tribunal or in the employee leaving the company, but are resolved through the grievance procedure.
Perhaps I can give succour to those who have been concerned by some of the comments of Opposition Members. We should be trying to improve employers' access to advice that enables them easily to put in place written procedures, as well as training and upskilling that does not involve sending people away on a two-day course at immense expense. We have done work on that already, but we need to keep applying pressure to make it easier and simpler for employers. That is particularly important not only for small businesses, but for small organisations in the voluntary sector, which have limited resources.
Mr. Kevan Jones:
Does my hon. Friend agree that the thrust of the Government's approach in the Employment Act 2002 was to ensure that disputes are resolved in the workplace, and that it is having an effect? The Government are committed to ensuring that cases do not get to a tribunal, which clearly proves that they
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are trying to ensure that good employment practice is spread more widely, contrary to the ignorant and ill-informed views of the hon. Member for Shipley (Philip Davies).
That is the crux of the matter. My worry is that, if we impose an overarching, super-organisation at the top, it will go against that ethos. The principle of resolving disputes at the appropriate level, which the Government rightly support, may mean progressing into tribunal or into court. However, if we look at it as a pyramid shape, the vast majority of cases should be capable of resolution at the basein the workplacebefore they reach the system of tribunals and court hearings.
At court, one of the things that the judge will look at is whether dispute resolution has been tried. That is right and proper. He will look at an application poorly if one of the parties has been offered the option of alternative dispute resolution and said that they were not interested. That is absolutely right. There has been a fundamental change in the ethos and the way in which we deal with the issue.
Mr. Jones: If the applicant refuses to go through a company's formal disciplinary procedure, the application will automatically fall, even if it has good cause in terms of grievance. That flies in the face of the claim that frivolous and vexatious cases are queuing up to go before employment tribunals.
Huw Irranca-Davies: That is correct. It is worth drawing attention to one of the most instructive cases in this regard, the Burchill and Bullard case in 2005. In his summing-up, Lord Justice Ward made four specific points. One was that the defendants' belief that their case was so watertight that they did not need to resort to alternative dispute resolution was unreasonable. Secondly, in his opinion, their claim that the case was far too complex for alternative dispute resolution was "plain nonsense". Thirdly, the costs of alternative dispute resolution would have been a drop in the oceanwe have said it repeatedlycompared with the legal costs that were incurred by bringing it to that level. Finally, Lord Justice Ward said:
That is a fundamental challenge to what used to happen. Previously, there was almost a charter saying, "Get straight to the lawyers; take it straight to the highest level." There are now appropriate levels at which disputes can be dealt with.
That is a key point. The grievance procedure in many ways acts as a cooling off period. It stops people almost straight away bypassing everything else and going straight to lawyers. I know from my casework that once lawyers are involved, reasonable cases that could be resolved by other means often get
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very nasty and expensive. All employers, regardless of whether they are big or small, have grievance procedures enabling talks between them and employees. In the vast majority of cases, that results in a sensible outcome.
Huw Irranca-Davies: Indeed. It is vital to put on record the importance of looking at it as a process. It is not a one-size-fits-all approach. We are saying, in tune with what we have done in recent years, "Let us solve these issues, where we can, at the earliest possible level of intervention, without going through the courts." Lord Justice Ward said in his summation:
"Mediation has established its importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value."
There is a strong message there for the whole legal profession. In a debate such as this, it is tempting to indulge in scurrilous anti-legal profession stories, but, tempted though I am, it would be unfair to do so. As we all know, many legal practitioners do good work, especially at the edge, where they deal with some of the most vulnerable members of society. However, there are also those who are willing to exploit this area of law. Perhaps the Minister will say how we can prevent people who suffer from the present gaps in provision from becoming vulnerable to those who would take money from them, even though there was no hope of the case being taken further.
I applaud the aim of the Bill, which is to deal with what we might call equality of arms. Where two individuals or an organisation and an individual confront each other at any stage of a dispute they should have the same capability, expertise and skills on which to draw to present their case in the best possible way. The starting point is article 6 of the European convention on human rights, which has been incorporated into law in this country through the Human Rights Act 1998, with which the Legal Services Commission and the Department for Constitutional Affairs have a duty to comply. Article 6 establishes that people must have effective access to courts and tribunals for civil cases; that there should be equality of arms; and that there should be no disadvantage for either party, be it the person making the complaint or the small business manor the small voluntary sector organisationagainst whom the complaint has been made. The article allows that, sometimes, that can be achieved without legal aid and without resorting to solicitors and barristers, other than in exceptional circumstances.
In England and Wales, we already have provision for exceptional funding. Many of the cases that have been highlighted in this debate by hon. Members on both sides of the House have been peculiarly complex and challenging; they do not fit into the standard tribunal approach. In such cases, it is right and proper that there be a method of funding available to ensure equality of arms. I argue that exceptional funding meets that requirement.
Much has been said about how different provision in Scotland is. In fact, the Scottish system provides aid where the case is evidently complex.
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I regard that as very similar to the system of exceptional funding. Although there is a difference, it is not as great as it has been made out to be.
Huw Irranca-Davies: I suspect that my hon. Friend is correct. One of my questions for the Minister is about the extent to which she has identified deficiencies in the present system. I agree that the two systems are not that far apart.
Huw Irranca-Davies: Indeed there are, but they are deemed to be exceptional circumstances. They are extremely rare[Interruption.] My hon. Friend the Member for Bristol, East (Kerry McCarthy) tells me that we are talking about six cases in the past five years. Rightly and properly, there is access to funding in England and Wales, and our system is not that different from the one in Scotland.
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