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Lord Haskel: The Government fully support these necessary but minor technical amendments.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 7:
After Clause 2, insert the following new clause--
("In section 7 of the Employment Tribunals Act 1996, after subsection (4) insert--
"(4A) Employment tribunal procedure regulations may make provision for representative proceedings to be brought on behalf of a number of persons having the same interest in proceedings in respect of an alleged contravention of any of the employment provisions of the Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995 or in respect of an equality clause within the meaning of the Equal Pay Act 1970.").
The noble Lord said: I have already spoken at some length on Amendment No. 7. In response to what has already been said, I wish to make one or two further comments. Amendment No. 7 comes well within the object and purpose of the Bill which, as I understand it, is to promote efficiency in industrial tribunals provided that the procedures adopted are fair and workable. As I have sought to explain, Amendment No. 7 does not seek to impose any procedure on an industrial tribunal. It simply seeks to empower the Secretary of State--after the working parties have reported--to be able, by subordinate legislation, to introduce appropriate representative proceedings regulations in whatever form the Minister then thinks fit. It is important to have that power included in this Bill so that this rather urgent matter can be dealt with thereafter. I hope the Committee does not think that the speech therapists' case was in any way unique. There have been many others. The ghastly mess of the coal board case comes to mind in which I was not involved. I have acted on behalf of employers as well as employees. I can assure the Committee that we are engaged in a game of snakes and ladders on both sides with plenty of snakes and not many ladders.
My concern in putting this measure before the Committee is that we should have a power in place which can be used and modified in the light of the findings of the working groups. Many years ago Professor F.M. Cornford wrote a marvellous guide for young academic politicians in which he referred to the doctrine of the unripe time; that is, the doctrine that one should not do today what one knows to be right because at some unspecified time in the future one might get round to doing something about that. I have not heard anything to suggest that the time is not ripe to allow
I do not seek to divide the Committee on this matter, but I hope that the Government and the noble and learned Lord, Lord Archer of Sandwell, might reflect further before the next stage to see whether an appropriately vague power can be included which will not prejudge the precise form of representative procedures but will at least enable them to be introduced as the justice of the situation demands in the light of the findings of these various working parties and those of other worthy workings of the mill. As I said, I do not seek to divide the Committee on this point or press the matter any further. I shall not move Amendment No. 7.
Clause 3 [Hearings etc. by chairman alone]:
Lord Wedderburn of Charlton moved Amendment No. 8:
The noble Lord said: This amendment has been grouped with Amendment No. 9. This is the territory, as it were, not of a full hearing but of a hearing by the chair alone. I use the vernacular of all who are under 25 as their generation has come to know the chair as something other than a piece of furniture. I appreciate that noble Lords have not yet arrived at this desirable level of converse, but the term gets one out of the sexist problems when using the word "chairman" or, as in our committees, the phrase "my Lord Chairman" when a noble Baroness presides.
The problem of a chair sitting alone worries a number of people who are concerned with the work of tribunals. The amendments ask my noble and learned friend and the Minister about the principles on which we are extending the jurisdiction of chair alone. Are there principles underlying the movement? Some people argue that the movement towards a chair alone relates to the cost of the wing persons. I do not say that myself, but it is a concern.
The move is to keep out of the territory of chair alone Section 163 concerned with redundancy payments and enforcements, and subsection (4) of the clause concerned with the enforcement of small sums--up to four weeks' compensation--which workers may receive under the scheme introduced to implement the directive of 1977 which begat the TUPE regulations of 1981. I shall not say that again; I put it more easily. Subsection (4) is the way in which in the last resort one enforces one's compensation for failure by the employer to meet his obligations under the transfer of undertakings regulations.
I can see arguments one way and another. However, the amendments are put forward with the ambition that my noble and learned friend or the Minister will tell us on what principles we are extending the chair alone jurisdiction. In some circles that is seen as a derogation from tripartism. The industrial tribunals--they are now to be called employment tribunals--in many ways have been a good example of tripartism at work, with a legal chair, an employee or union representative on one side, and an employer representative on the other. The
Lord Archer of Sandwell: Not for the first time, my noble friend Lord Wedderburn and I are shoulder to shoulder. I yield to no one in my support of tripartism. It is their tripartite nature on which the tribunals' enviable reputation is founded. Nevertheless, there are jurisdictions in which the role of what we call lay members--I am in no way disrespectful; I simply distinguish them from legal chairmen, and I use that word following the statute--is less relevant. Typically those are technical cases, and ones which may turn more on law than on fact or judgment about what is reasonable or fair. The Bill proposes to make some fairly minor additions to the categories in which a chairman may sit alone, although he will have power in an appropriate case to decide that he will sit in a full tribunal of three.
My noble friend's amendments refer to three of the additions: Sections 11 and 163 of the Employment Rights Act 1996; and Regulation 11(5) of the Transfer of Undertakings (Protection of Employment) Regulations 1981. The Committee may think that each of those jurisdictions is eminently suitable to be determined under the sit alone provision.
Section 11 provides that where an employer has failed to provide a written statement of employment particulars, or written notice of any changes in them, or an itemised pay statement, his employee may apply to an industrial tribunal. In such cases the issue is whether a party has received something in writing to which he is quite clearly entitled. There are unlikely to be any disputes about the facts. However, if during the proceedings any factual issues arise, the chairman may well use his discretion to bring in two lay colleagues.
Section 163 of the 1996 Act provides that a tribunal may hear proceedings relating to the right to and amount of statutory redundancy payments. The principle there is that the issue to be determined is essentially straightforward in nature, in the vast majority of cases. It is nothing more than simply ensuring that an employee's entitlement is correctly calculated and that he has received it. If factual questions emerge, again the chairman is directed to use his discretion to sit as a tribunal of three.
I hope that the Committee will consider that the principle is fairly clear, although one has to consider each jurisdiction on its merits.
Amendment No. 9 in effect deletes subsection (4) of the clause which refers to regulation 11(5) of the 1981 regulations. That is the regulation which allows an employee to complain to a tribunal on the ground that he or she falls within a category of employees who have been given an award of compensation--it is sometimes called a protective award--for the failure to inform and consult employees' representatives about the transfer of
I stress that the Bill does not seek to alter the position relating to proceedings under regulation 11(1)--that is, proceedings in which a protective award is being sought in the first instance. They should always be heard before a full tribunal. They will generally involve subjective judgments about the operation of information and consultation procedures--all the matters about which my noble friends are so knowledgeable. Clearly it is right that lay members should form part of the tribunal in those circumstances.
What Clause 3(4) seeks to do is to allow a chairman to sit alone in cases where a protective award has already been awarded under that procedure but the employer has not paid it. So there are just two questions for the tribunal to consider: first, is the applicant an employee of a description to which an award has been made; and, secondly, has the employer failed to pay the money? Again, those are straightforward questions. I hope that my noble friend will feel that they are exactly questions on which there are unlikely to be issues of fact or questions of what is fair and reasonable, when either it was a debt-collecting procedure or there is a question of law. That is the procedure which it is intended to follow.
Page 3, line 5, leave out ("11, 163 or").
5.45 p.m.
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