The
Solicitor-General: Has the hon. Lady applied her mind to
what would happen in the case of a dispute between the claimant and the
representative, or to what would happen to costs in the classic
structure of an employment tribunal? Would they pass, or would they not
pass? Those are important details. Perhaps she has some answers; it
would be helpful if she
did.
Lynne
Featherstone: If I had as many legal advisers as the
Minister, I am sure that I would have a host of answers, but I am not
so supplied. However, after this Committee, I shall seek those answers
for her. I am sure that I can find them, but I do not have them to
hand.
I think that
the Minister knows that the argument is plain. My proposed system would
be more efficient, would make it easier for individuals to access
justice and would end the inequality that they suffer year on year. The
greatest problem with equality legislation is not the legislation
itself, which is often quite good, but people’s inability to get
it applied in a fair and timely fashion. There is very little in the
Bill that will address the extensive backlog of cases. That poses a
huge obstacle. Representative action would be a dramatic step change
and act as a greater deterrent to those who discriminate in employment
and who can make cold-hearted calculations on the cost of their
discrimination. If the employer knew that employees being discriminated
against— especially if the discrimination is
widespread—could take action fast with strong bodies to
represent them in the fight against the employer, the latter might be
deterred from discriminating in the first
place.
Mr.
Harper: The hon. Lady is conflating two points. She said
that those who discriminate would be deterred, if they thought that the
people against whom they were discriminating could take action fast.
That is the point about the resourcing and efficiency of the tribunal
system and the need for cases to progress through that system. The
second point—the one that references the new clause—is
about whether those being discriminated against could bring a
collective case. Those are not the same things. Even if representative
actions could be brought, the process used to take them through the
tribunal system could still get hugely backed up. The advocates might
be more effective, as the hon. Members for Ayr, Carrick and Cumnock and
for Stroud said, but progress through the system could still be slow.
They are two separate things. It will be helpful if the Minister breaks
those down when she responds to the
debate.
Lynne
Featherstone: Again, in a sense, I am arguing for both.
Were there to be representative action, that, in itself, would contract
the number of cases that had to go to the tribunal. It would also act
as a deterrent to an employer to know that the case could be
represented by the union or by the EHRC, which is a strong advocate. It
would work on all those
levels.
Mr.
Harper: I would like to pick up on one point. The
Solicitor-General has already asked how much the proposal has been
thought through. Is it really the case that, if we allowed
representative actions, we would reduce the number of cases? One
argument is that—many members of the Committee, including the
Minister, have said so—it would be difficult to bring a case,
and there would be many barriers. If we allowed representative
action—I am not necessarily arguing against it—would we
not increase the number of cases? If so, we could make the system more
difficult. I
ask about that only because I know—Committee Members will have
to forgive me, because I am doing this only from memory—that the
equal pay cases that have been brought, for example those related to
local authorities, have involved a significant number of people. They
have not exactly moved swiftly through the system. If we do not think
about the processes in the tribunal system together with the provisions
under the clause, we would be in danger of clogging up the system even
further. We have to take the two things together, and I hope the
Minister will do that when she responds.
Lynne
Featherstone: The hon. Gentleman makes a good point. That
is a call to arms both for resources and for the number of tribunals
that are able to process cases, but I do not think it is an argument
against representative action.
I do not want
to detain the Committee any longer. New clause 10 is one of the most
important proposals in the names of Government Members. With the best
will in the world, with the Equal Pay Act 1970 and with tribunals,
women are stuck in a queue so long they sometimes die before they get
there. I think the Minister has to answer that
question.
Ms
Abbott: I rise to support the new clause, which, as has
been said, is probably the single most important new clause in the
Bill. We have debated many clauses and amendments in the Bill that are
matters of principle, and we are none the worse for it. We have debated
many clauses and amendments, which, in the short run, would not have
much effect. Suppose that we had more black or ethnic minority
candidates, which I would want. We would be lucky to get more than two
or three new MPs out of it, given where we are in the current electoral
cycle. The point about the new clause is that it can transform lives,
potentially thousands of lives.
I say with
confidence that no member of this Committee has ever had the
experience, which thousands of my constituents have, of being a woman
bringing up a family on the salary from one or even two low-paid jobs.
They would not know or understand what a grinding, oppressive life that
is. We turn to those same families, the same female head of families,
and say that they are not good enough parents, they do not know where
their children are and they are not contributing to society, when we,
as the Government, could do something to address their immediate
economic
plight. The
arguments on representative actions are unanswerable, and I wonder what
the Solicitor-General has to say. They will help people who are the
most vulnerable and the least able, as individuals, even with the
support of their trade union, to go forward. They would address the
issue of low-paid women, and indirectly help to bring thousands and
thousands of children out of
poverty. We
can lecture the poor about their lifestyles, about being good citizens
and about parenting, but we can, in this Parliament, in this Committee
and in the Bill, do something to address the economic standards and
hardship of too many women in cities up and down the
land. 10
am
Mr.
Harper: On reading the new clause closely, I realised that
it would compel the Minister to make regulations to permit either the
Equality and Human Rights Commission or a registered trade union to be
the representative body. Does the hon. Member for Hackney, North and
Stoke Newington think that those are the only two groups that should be
allowed or should lawyers be allowed to do so, much as in the United
States with class action? Should it be just those two bodies? I do not
speak as a
lawyer.
Ms
Abbott: I am not a lawyer either. I do not want to address
the detail of the new clause; I am trying to address the underlying
principles, about which I feel
strongly. The Solicitor-General asked a Committee member how it would
work. In a sense, the Committee is trying to address the principle of
representative actions. We are quite happy if the Solicitor-General
wants to set out the practical problems.
The new
clause, which is probably the single most important new clause to the
Bill, should address the harsh reality of the people among whom I live
and whom I try to represent, as well as that of some members of my
family. My concern with representative actions is that the issue might
already have been traded away because of how antagonistic any clause of
this kind is to big
business. I
would not like to think that before the Bill came into Committee
unspoken agreements were made that the issue would not be touched
because it is too difficult for big business. Big business is
undoubtedly going through a difficult time, but ordinary low-paid women
are going through an even harsher one. If we, at this phase of the
Administration’s time in office, cannot address those
women’s issues, they are entitled to ask in any coming general
election whether we are really thinking of them and addressing their
position. I support the new
clause.
Mr.
Harper: I shall be brief. I want to put the issue that I
raised directly to the Minister. Obviously, we have been debating the
principle, but we are also speaking specifically to the new clause and
whether the Committee should include it in the
Bill. Subsection
(1) would specifically compel the Minister to make regulations to
permit only the EHRC or a registered trade union to take representative
action. I want to probe on that point, although she will obviously
reply on the clause specifically. If the EHRC and trade unions are to
be allowed to represent a class, should lawyers be allowed
also?
I ask because
the provision opens up a change in our legal system that would probably
generate widespread use of class actions, which do not tend to be
brought in this country to the extent that they are in the US.
Depending on the rules about funding such actions and whether they
would be no win, no fee, the provision could drive a significant
change—we could argue about whether that would be for good or
ill. We
have seen what happened with the move to no win, no fee in personal
injury cases, which made some significant changes. It has clearly had
benefits for individual claimants, but one could argue that it has
driven up the cost of insurance and caused cases to be brought, not
necessarily for good reasons, that would not have been brought
previously. We
could argue about that, but the provision would clearly drive
significant change. When the hon. Member for Ayr, Carrick and Cumnock
speaks to the new clause, she can say why she chose to make the EHRC
and the trade unions the only two appropriate organisations, but I
would like the Minister to comment on the Government’s views on
the new clause and the possibility of allowing lawyers to bring class
actions. Also—I
think the Minister referred to this—how would the new clause
work on things such as costs? One issue in employment tribunals is that
employers often are, or feel the need to be, legally represented while
those who bring the cases are not compelled to be.
However, in a significant representative action representing a class of
people, both sides would effectively be legally represented. That might
be appropriate as a way to bring balance to the situation, but I
suspect that it would drive up the costs of the actions
significantly. It
might be possible to argue that in bringing a representative action on
behalf of a significant number of people the cost per claim would be
lower, although the costs would be driven up. However, there would be
the issue that I raised in an intervention on the hon. Member for
Hornsey and Wood Green—whether the number of claims would be
driven
up. Those
are quite complex issues because—the Solicitor-General alluded
to this in her replies to the hon. Member for Hackney, North and Stoke
Newington—there are dangers in not thinking through and testing
how something would work in practice, and not ensuring that all the
pieces fit together properly. If representative actions are brought, as
the hon. Members for Ayr, Carrick and Cumnock and for Stroud would
like, but no one has ensured that the rest of the system works, or
thought through the costs or the workings of the tribunal process,
there will be a danger of gumming up the works—to the detriment
of everyone
involved.
Mr.
Drew: Does the hon. Gentleman accept that one reason many
people can never seek redress is that there is no mechanism, other than
belligerently pursuing their cause? All hon. Members will have
encountered people who ended up in an employment tribunal representing
themselves, not knowing at all about the system and losing their case
simply because they were inadequately prepared and could not make
proper representations. That is what the new clause is about; that is
why I think it is a matter of justice. I do not believe that it would
necessarily lead to a huge explosion in the number of new cases. It
would just mean that people were properly represented and could seek
the right
redress.
Mr.
Harper: The hon. Gentleman makes a good point—that
may indeed be the case, but there is a need for thought and analysis of
the likely effects. I know that to an extent they are unpredictable
because the thought process involves trying to think through the
different decisions that people could make. The question, I suppose, is
whether there would be significantly more cases or whether the success
rate would improve without the number being driven up significantly. To
some extent, research and testing could be done on that, but it is
obviously a judgment call. This needs to be thought through to
establish what the impact would
be. To
pick up the point that the hon. Member for Hackney, North and Stoke
Newington made, fairly large companies have resources at their disposal
and, even if they do not engage professional legal representation, they
have skilled human resources professionals who are well versed in the
relevant law, so there is some disparity in resources when an
individual brings a case against a large company without representation
and without the ability to fund it.
However, it
is worth thinking about the impact of employment tribunals on smaller
companies. The case has been made to me in my constituency that smaller
companies—not those that have necessarily done anything
wrong—fear the use of employment tribunals as a weapon by
disgruntled employees. Such employees effectively have nothing to lose,
because they need not fund professional legal representation and do not
get hit with costs, but the company might have to spend a significant
amount on defending itself—either on hiring professional legal
representation or in management time, which is a significant cost for a
small company. A large
company can send an HR person off to deal with the tribunal, and
perhaps that will not affect the business, but if a small
company’s owner-manager, or another senior person, is taken away
for a significant time, the power relationship is sometimes reversed.
Often, people settle cases that they think do not have merit because
the cost of pursuing them—
Sandra
Osborne: The hon. Gentleman is making a valid case about
small employers, but does not that happen now in individual cases
anyway? What makes him think that a group of people would make things
worse?
Mr.
Harper: I am simply responding to the quite proper point
about power imbalance made by the hon. Members for Stroud and for
Hackney, North and Stoke Newington. If we are to think the issue
through, it is also worth thinking about the impact on smaller
companies. The hon. Member for Ayr, Carrick and Cumnock is right: what
I described happens now. I was making the point that the insurers of
those companies often tell them to settle, regardless of the merit of
the case, because the cost of defending it will be
significant. I
am not sure—I was listening carefully to the hon. Member for
Hornsey and Wood Green and she was not sure—what the effect of
the measure would be. If it would drive up the number of cases, we need
to think about those smaller companies that are concerned about the
impact of employment tribunals. I am not saying that this involves all,
or indeed most of, the cases, but cases are brought to tribunals that
do not have merit and are being brought because the employee has little
to lose. Cases are brought for reasons that perhaps are not as
honourable as they might
be. That
is not to disparage the very many valid cases, but we must consider the
other side of the argument, particularly for those smaller companies
for which what I have described is a serious concern. Cases have been
brought to me in my constituency in which it is a concern. If we are
thinking through a significant change—a number of hon. Members
have said that it will be a significant change in the law—we
need to think through all the
consequences. John
Mason (Glasgow, East) (SNP): It seems to me that the
picture being painted by the hon. Gentleman is far too one-sided. We
have heard from hon. Members across the board about the problems
experienced by individual employees, who are often not well educated,
do not know the law and so on. They are often up against very difficult
employers, as I have seen myself. Yes, some employers might be in a
difficult position, but surely there is a basic wrong that needs
redress.
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