John
Hemming: All parties are in agreement with the
Bill’s direction, which is towards clarity and ensuring that
issues are resolved at an early stage with the least
formality—although one does need formality at a certain point,
so that people know that there is a formal grievance. I ask the
Minister to recognise that there are different ways of achieving that
clarity and informality. It is when one gets the whole package,
including any departmental guidance, that one has what people have to
face. Even if it is not specified in the Bill, departmental guidance
that clarifies which code of practice to follow in which circumstance
is important. It is straightforward for a smaller business to look it
up and not to have to bring in legal advisers, even if some
organisations provide legal support. Clarity and simplicity are the
order of the
day.
Mr.
McFadden: It is right that we consider clause 3 in the
round, and the ACAS code in particular. The code is an important part
of the system, which will replace the 2004 procedures abolished by
clause 1. It is more principles-based than some previous ACAS codes,
because we have had an important dialogue with business and employee
representatives. Some respondents have said that they do not want a
lengthy procedural handbook that they have to cover, but that they want
to know in broad terms what they have to do to be
fair. The
hon. Member for Huntingdon asked whether tribunals have discretion in
this area. They do and that is one of the changes that we are making
from the 2004 procedures, where the elevation of procedures was more
automatic. The ACAS code that we have proposed is more
principles-based. The draft code has been circulated. It will allow
tribunals greater discretion in the varying of
awards.
Mr.
Binley: The Minister clearly recognises that vexatious
cases can be a problem. He points to a strengthening of the code. My
experience is that often, ACAS, and its code, have shied away from the
issue of vexatious cases in reality because it is fearful of being
labelled anti-employee or anti-employer. That is a real concern. Will
the Minister take that into account and genuinely consider
strengthening the code and the conciliation that follows in this
respect? That would take away much of the concern that small businesses
have about this
matter.
11.30
am
Mr.
McFadden: The hon. Gentleman makes a fair point about the
fear small businesses have of vexatious claims. The changes that we are
making will help in that regard. Part of the problem with the 2004
procedures was that they often placed the claimant—if I may put
it like that—on a fast track to tribunal, without going through
the kind of conciliation that could have solved the problem outside of
a tribunal. Later, we will consider ACAS and time limits on
intervention, which is another relevant issue. The system that the Bill
creates places greater emphasis on pre-claim conciliation. ACAS will
have more money to do that through the extra funding, and an expanded
helpline will help with that. We will go a long way towards meeting the
hon. Gentleman’s legitimate
point. I
return to the questions that the hon. Member for Huntingdon asked about
the code. The consultation on the code was with ACAS’s usual
stakeholders—not a term I always like, but I use it for want of
a better one. They include the business organisations, some of which
have been represented here, the trade unions and others in this field.
I understand that about 170 responses were received during the
consultation on the code. ACAS has a balance to strike because some
people’s responses will be that they want the code to cover
everything—to mention this, that and so on—and others
will be that they want less and less in the code. I think that ACAS is
right to go for a principles-based code because we are trying to reach
an end product that can be read and dealt with by businesses of all
sorts and sizes. We are talking about busy people so it is correct to
have something that is short, concise and principles
based. The
publication of consultation responses is a matter for ACAS. The normal
practice is that consultation responses are made available unless the
person who submitted the response requests
otherwise. Is
the code set in stone for ever? No, ACAS may revisit it. However, we
have spoken of the virtue of clarity. When the code is settled, laid
before Parliament and approved, I do not think that we will want ACAS
to revisit it any more than necessary. In that way, businesses and
employees will know what is involved and what is required of
them. The
hon. Gentleman asked various other questions, for example, whether the
size and resources of business could be taken into account. Yes, they
can. He also mentioned the worker-employee distinction. That
distinction is recognised in law, and the terms are used precisely. The
hon. Gentleman will be aware—this is not a debate for this
Bill—that the employment rights and the obligations attached to
a worker are different from those attached to an employee, and that
distinction exists in
law. The
new code is more principles based, and tribunals, employees and
employers are asked to have regard to it. It also contains a
discretionary power for tribunals to take into account such regard when
assessing awards, and to adjust awards by up to 25 per cent. if either
party has acted unreasonably in failing to comply with the code. I
emphasise that the power is discretionary; it is for employment judges
to apply depending on the case, without the rigidity of the previous
automatic link to the statutory procedures that we discussed earlier.
As we discussed in relation to the amendment that I
moved,
proposed new schedule A2 lists the enactments that apply to the clause
and to the power to vary awards. I commend the clause to the
Committee. Mr.
Djanogly: I made some other points that the Minister has
not mentioned, but I did make a lot of points. Therefore, I would be
most grateful if he would go away and look at what I said, and address
a letter to the Committee on some of those
points. Question
put and agreed
to. Clause
3, as amended, ordered to stand part of the
Bill.
Clause
4Determination
of proceedings without
hearing
Mr.
Djanogly: I beg to move amendment No. 13, in
clause 4, page 4, line 13, leave
out
‘only’.
The
Chairman: With this it will be convenient to discuss
amendment No. 12, in
clause 4, page 4, line 14, at
end insert— ‘(za) the
proceedings relate to a money dispute,
and’.
Mr.
Djanogly: This is a probing amendment, to open up this
important clause to wider discussion and perhaps
clarification. Michael
Gibbons’s 2007 report “Better Dispute Resolution: A
review of employment dispute resolution in Great Britain”
recommended that some cases before the tribunal should be dealt with by
a fast-track procedure. His emphasis was on the settlement of monetary
disputes on issues such as wages, redundancy and holidays, as the legal
points at issue were simple and would be resolved more quickly by
expert determination. However, in the debate in the other place the
matter got confused, and it is necessary to make it clear when a full
tribunal hearing is required and when a fast-track individual hearing
is appropriate. Specifically, there seemed to be confusion in the other
place about whether the Government intended the process to apply solely
to monetary
claims. The
balance that must be struck is between comprehensiveness, fairness and
cost. The aim of an abbreviated fast-track process must be to deal
quickly and fairly with those cases that do not need a full tribunal. I
support proposals for a system that, in the words of the Minister in
the other
place, “will
deliver swift and effective justice and help many claimants to receive
redress early, potentially relieving them from hardship and
uncertainty”. The
Minister went
on: “Respondents
will also benefit from having cases determined at an early stage,
freeing them to concentrate on their
businesses.”—[Official Report, House of Lords, 4
February 2008; Vol. 698, c.
487.] That is
all well and good, but care must be taken not to place an individual in
a weaker position for the sake of expediency. We need to limit the role
of single-member tribunals to dealing with those cases that are so
clear-cut as to be almost procedural. There is something worrying about
limiting a claimant’s right to a review by a full panel in all
but the most simple and incontestable cases.
If we are to
introduce a written consent process, as envisaged by proposed new
subsection (3AA) to section 7 of the Employment Tribunals Act 1996,
provision must be made to ensure that that cannot be abused. I am
especially concerned about the role of deemed consent to a
single-person tribunal. To that end, I would be grateful if the
Minister could make clear to the Committee the limits of the proposed
new subsection: the claims to which the fast-track process would apply,
and what form consent in writing to a single-member tribunal would
take.
John
Hemming: This comes down to the good old article 6
question of whether people are having a fair hearing. The bigger issue
that needs clarification is proposed new subsection (3AB). Logically,
if both parties agree that there should not be a hearing, there will
not be one. That is entirely fair. There is a point about fast track.
If we aim to resolve things prior to tribunal in the conciliation
process, one would hope that there was a fast track in initial
determinations to suggest such a resolution.
We see no
reason why the word “only” should disappear, although it
seems otiose in the circumstances, as the tribunal would have to be
given a power to determine something without a hearing. Therefore if it
does not have that power, it will not be able to determine it without a
hearing. That should be limited. The circumstances are reasonable, but
some clarity is needed under proposed new subsection (3AB) because
employers who feel that they have responded and are then told that
their response does not count would have a real problem. Perhaps the
Government should considering tabling an amendment on
Report. Dr.
Nick Palmer (Broxtowe) (Lab): I should like to say how
much I look forward to serving under your chairmanship, Mr.
Bercow. I appreciate the point made by the hon. Member for Huntingdon,
but the amendment does not seem to address the key issue. If there is
mutual consent or if one side has not bothered to put in a substantive
case, it seems obvious that the matter should be fast-tracked, entirely
independently of whether it is a money issue or something else. I take
the point made by the hon. Member for Birmingham, Yardley: we need to
be clear about the exact meaning of proposed new subsection (3AB)
because there should not be any doubt. We have sufficient trust in the
tribunal system to believe that a reasonably adequate request for a
hearing would not be dismissed purely on frivolous procedural
grounds.
John
Hemming: Does the hon. Gentleman agree that it is
particularly important to indicate to a respondent that their response
has not been accepted and that they could submit an alternative before
any written
determination?
Dr.
Palmer: That sounds reasonable to
me.
Michael
Jabez Foster: Indeed. The point has been made about how an
employer as a respondent has the opportunity to make his case. I ask
the Minister to look at the current procedural rules more generally.
Perhaps I can give him a short example of a local case that came
to my notice. The employer did not receive the notice in time, or so he
claimed. He sent something in slightly late—two days after the
final date. The rules currently say that he cannot be heard. The only
option was to go through the whole process with him sitting there
watching, but not taking part, and then subsequently appealing to the
Employment Appeal Tribunal to see whether there was another way. I do not know what happened as
a result of all that. But the draconian nature of the current rules,
which debar people from taking any part in proceedings, is unlike any
other jurisdiction. In every other part of the legal system, so far as
I am aware, by incurring a penalty or making a payment to the court or
whatever, there is a way back into the proceedings. Uniquely within the
tribunal rules, that does not apply. I ask the Minister to have a look
at that if he agrees that it is an
injustice.
Mr.
McFadden: The clause was indeed the subject of
considerable debate in the other place. That is understandable, because
it deals with a traditional part of the tribunal process, and perhaps
people are led to expect a full hearing with the tribunal chair and two
lay members—or wing members as they are sometimes known. The
question posed is whether that is always necessary in all jurisdictions
and in all cases. Earlier we discussed faster and perhaps less costly
mechanisms for resolving disputes, which is really what the clause is
concerned with. The question at the heart of amendment No. 17 is:
“If we are to have a system of written determinations or
determinations without a hearing, what jurisdictions should that
cover?”
11.45
am The
first point to make is that tribunal chairmen can already sit alone and
deal with certain jurisdictions, so that is not new. I have written
several times to hon. Members who have asked what jurisdictions I have
in mind. They are largely, but not entirely, the same as those
jurisdictions in which a tribunal chair can already sit
alone—unlawful wage deductions, breach of contract, redundancy
pay, holiday pay and minimum wage cases. The only difference is the
addition of holiday pay.
That is the
type of case to which we are referring, and the question at the heart
of the amendment is how we define that in the Bill. Our intention, if
introducing such a procedure, is to define in secondary legislation
those jurisdictions to which it would apply. Were such a system to be
introduced and prove successful, those jurisdictions might or might not
change over time in the light of experience. The Government’s
view is that it makes more sense to specify the jurisdictions and the
type of cases to which the procedure would apply in secondary
legislation. Also, the regulations and rules would be laid before
Parliament, which would allow us greater flexibility to amend the
jurisdictions in the light of experience while of course retaining
proper parliamentary oversight. That is a judgment about what needs to
be on the face of the Bill, and it is how we intend to
proceed. The
hon. Member for Birmingham, Yardley asked about proposed new subsection
(3AB). The secondary legislation consultation looked at default
judgments and how parties might have a way back into proceedings, a
point to which my hon. Friend the Member for Hastings and Rye also
referred. We are currently considering the responses to that and will
announce any changes we might make in due course.
In conclusion,
I believe that the type of jurisdiction is best defined in secondary
legislation. That would allow us the flexibility to make adjustments in
the light of experience if
necessary.
Mr.
Djanogly: I thank the Minister for his clarification on
the areas to which the clause is likely to apply. He said that that
would be finalised in secondary legislation. I will go away and think
about whether items of such importance merit being put on the face of
the Bill, rather than going through secondary legislation, and I might
well come back to that at a later stage. I take the point made by the
hon. Member for Broxtowe that the amendment only loosely makes the
point that I intended to make, but I raised it on a probing basis
because I thought it was important that we had a debate about the
fairness of the procedures whereby someone would effectively give up
their rights. I think that the hon. Member for Hastings and Rye and, to
an extent, the Minister recognised that. I am pleased that we have had
the debate and will think a little further on it. I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
4 ordered to stand part of the Bill.
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