Equality Bill

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Mr. Harper: I am not saying that there is not. I made the points I did to present a balanced argument. I acknowledged openly that if an individual brings a case in relation to a large, well resourced company, there clearly is an imbalance in the resources available to the employee, if they are acting by themselves, and to the company. I was simply making the point that with smaller employers there is not necessarily a significant imbalance in resources.
Let us consider how employment tribunals work in terms of the cost position. Sometimes the relationship is altered because the individual does not have to pick up the cost. Because of the potential damage to the employer’s reputation and so on if they lost the tribunal—the potential award could damage their reputation—they might feel compelled to have legal representation. The other issue, which is more significant for smaller companies, is the management time required to deal with the case. Sometimes the power relationship is not in favour of the employer; it is the other way round.
I am presenting that case simply to give the Committee a balanced view, particularly for smaller employers. I was not saying that there is not an issue. Clearly, the issue that the hon. Members for Ayr, Carrick and Cumnock and for Stroud have highlighted is real. I am just saying that the Committee needs to think carefully about how we address it. We need to think through all the consequences.
Emily Thornberry: I am listening with interest to what the hon. Gentleman is saying, but it strikes me that it is slightly off the point. This is not a question of an individual employee vindictively taking a case against an employer. The essence of it is class actions. It is about a group of people and things that affect a group of people. The examples he is giving may be examples in other circumstances, but absolutely not in this one. There may be other problems with class actions, but what is being described is not one of them.
Mr. Harper: I obviously did not make myself clear. I mentioned the argument about cases being brought that perhaps do not have merit simply to make the point that for smaller companies the balance of power and resources between employer and employee is not necessarily completely out of line as it is—several hon. Members quite properly said this—in the case of an individual employee against a large company. That is the only point that I was seeking to make.
I illustrated that point with examples of cases that have been brought to me. I was not trying to say that with representative actions one would have a lot of people bringing cases without merit. The hon. Member for Islington, South and Finsbury is right that if a significant number of people were bringing a case, people would not bring meritless cases for personal reasons, because clearly there would be a representative group only if there was some shared cause. In fact, the number of meritless cases being brought might be reduced. I was simply saying that we must think of the costs on smaller companies, because the balance is not necessarily out of line.
I have made the points on what would happen about the number of cases and how the matter would be dealt with. The final point, which we have already alluded to, concerns the impact on the tribunal system. I think there is general agreement that the tribunal system is not working as well as it should. I do not know whether that is a resourcing question or a process question about how the tribunals work and whether getting the system to work better using existing resources would allow us to process more cases.
We have to consider not only the clause, but how the system works. I hope the Minister will do that.
10.15 am
The Solicitor-General: My three colleagues make a powerful case for representative actions. If I may add to the broader argument levelled by my hon. Friend the Member for Hackney, North and Stoke Newington, the general view now seems to be that the single most important thing in further reducing child poverty is equal pay for women. She has hit an important nail on the head.
All three of my colleagues powerfully argued their case, which was not spoiled by the allegation from the hon. Member for Hornsey and Wood Green that, “It is easy to introduce these things. We can’t think why the Government don’t just up and legislate.” That attitude reflects the point made by my hon. Friend the Member for Islington, South and Finsbury, who noted how long the Liberal Democrats have been out of government and that they have no idea what steps have to be taken before sensible provisions that will meet this case can be brought into play. The analysis by the hon. Member for Forest of Dean pinpointed some of the things that the hon. Lady simply had not thought about.
There are a lot of problems with the proposals. Who would be a representative body? One possible way forward would be to allow a tribunal to certificate bodies as appropriate representatives, either for one case or as a generality. That might mean that the measure is too narrow in who it says could be representative.
The way we deal with costs is important. The hon. Member for Forest of Dean made the important point that if a representative can mobilise 2,000 people to bring an action against a business, the business might, if it is not sizeable, simply capitulate, with right or wrong never having been determined. That issue has to be balanced so that justice is not undermined.
John Penrose (Weston-super-Mare) (Con): To pursue the Minister’s point about certificating potential new representative bodies, I was reminded that two consumer affairs bodies—Which? and Consumer Focus—are authorised to make super-complaints on behalf of generalised groups of consumers, rather than a group of named individuals. Is that the sort of thing that the Minister is talking about or is it too generalised and widely drawn? Would a group of named individuals need to be identified by whichever named representative organisation was certificated in the way she described?
The Solicitor-General: The hon. Gentleman puts his finger on another problem that has to be resolved. Do we have an opt-in mechanism for the people who would be represented, so that the representative body had to get everybody’s case, everybody’s signature and everybody’s consent before it could go forward? Alternatively, should we have an opt-out mechanism, so that if the tribunal certificated, say, the commission to take a case in a particular work environment, every worker there would be deemed to have opted in unless they opted out?
Which? used provisions in relation to the high, inflated prices of replica football kit and won a significant victory, although it was not prepared to take any more cases because the process was incredibly complicated. That was not quite the system that we are looking at here, but there has been the ability to deal with things in that way. It is another way to deal with things that is not linked to employment.
We need to look at a range of issues—costs, who represents whom, whether people opt in or out, and how disputes are resolved between a claimant and a representative. I agree completely with my hon. Friends that, as discrimination and equal pay are systemic, it is onerous to expect an individual—they are often poor, pretty well by definition, and alone—who happens to have been wronged in the first place to have the fortitude and the backing to sustain an action that takes a long time. That seems inappropriate and not a sensible way to pursue systemic problems in this century.
Mr. Harper: The Solicitor-General said that the actions take a long time. Have the Government given any thought—the review was mentioned earlier—to whether it is possible to speed up these cases? Is that a resourcing issue or an issue of processes?
The Solicitor-General: I can assure the hon. Gentleman that there is a lot of reflection on and consideration of how the tribunal system works. Obviously, over the past few years the relative trickle of cases has suddenly grown into a massive flood, pretty well overwhelming the resources that were reasonably predicted to be needed and resulting in the logjams with which we are all familiar. There is obviously a need to deal with those in some different way, but the proposal would be a sensible way forward if we could work out the technical problems.
Instead of having several hundred complainants pursuing one employer, one after another—even if they could be put together for some cases—a representative could decide the issue once and everybody’s damages could be worked out subsequently.
Ms Abbott: I am listening very carefully to my hon. and learned Friend. I am glad that she understands where I am coming from on the new clause, but will she say more about the technical difficulties as she sees them?
The Solicitor-General: They are pretty well as I have said. The muddle that the Civil Justice Council is putting forward—a proposal for the whole of the civil courts and not specifically for any sector—relies on what happens in the courts outside the tribunal system—namely, the winner takes the costs. In such cases, the costs move, as it were, with the action, but tribunal costs are different. A first glance at the CJC proposals shows that they would not fit the tribunal system at all, but it is not impossible to change things round to make them practical.
It seems to us that of all kinds of court case, discrimination and equal pay cases beg for a group action provision.
Emily Thornberry: What lessons can we learn from America? Presumably, the Americans have been having such actions for some time, so can we not learn from them?
The Solicitor-General: My hon. Friend really will frighten the horses if she talks about American class actions, because they are very much prey to the kind of hazard mentioned by the hon. Member for Forest of Dean. A person can be used as a hammer, sometimes unjustifiably, so we have to be more subtle and work to get things right.
We are looking at the CJC report. Despite what the hon. Member for Hornsey and Wood Green suggested, it reported only in November 2008. I must tell her—I do not know whether she has tried to read the report—that it makes “War and Peace” look like a magazine, and it is complicated. I have waded through it, being an anorak, and there are a lot of things that we need to tackle. However, the Government Equalities Office has also done a report on applicability to those specific kinds of case. We feel more positive about that report than about some aspects of the CJC report.
We said that we would consult on any proposals we make, so the hon. Lady will have to be a little more tolerant. She sees that as time wasting, but we see it as a sensible step before making what would be a significant change to the English legal system.
Mr. Harper: I am grateful to the Minister for setting the case out so well. Can she update the Committee on a timeline? I recognise that such things have to be done with care because they would be significant changes, but can she tell the Committee broadly when those proposals might be available and over what period the Government are likely to consult?
The Solicitor-General: I do not know why the hon. Gentleman had to spoil the end of my speech—I was just about to answer those questions. He knows I am teasing.
We will quite shortly be able to come to conclusions on whether and how we can go forward. We will consult if, as I hope, we say that we intend to go forward and if the consultation is positive. Again, a consultation has to be meaningful.
10.25 am
The Chairman adjourned the Committee without Question put (Standing Order No. 88).
Adjourned till this day at One o’clock.
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