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On Question, amendment agreed to.
Clause 23, as amended, agreed to.
Clause 25 [Right of employee not to be unfairly dismissed: Great Britain]:
Clause 26 [Right of employee not to be unfairly dismissed: Northern Ireland]:
Lord Clinton-Davis moved Amendment No. 98:
On Question, amendment agreed to.
Clause 26, as amended, agreed to.
Clause 27 [Tribunal hearings etc by chairman alone]:
Baroness Miller of Hendon moved Amendment No. 99:
The noble Baroness said: I beg to move Amendment No. 99 and speak also to Amendments Nos. 100 to 102. These are identical amendments to paragraphs in Clauses 27(1) and (2). Clause 27(1) relates to the constitution of an employment tribunal for certain purposes of this Bill under the Employment Tribunals Act 1996, and Clause 27(2) relates to employment tribunals in Northern Ireland.
The Bill provides for the tribunal for those purposes to consist of a chairman sitting alone. Each of the four amendments provides for either party to be able to request that the tribunal should consist of three persons. Clause 27 deals with complaints against an employer for failing to allow access to records under Clause 11 and appeals against enforcement and penalty notices under Clauses 19 and 22. The Government may claim that they are following the precedent set by the Trade Union Reform and Employment Rights Act 1993 for cases where the input of lay members was considered less
The very success and popularity of the tribunal system created a problem that had to be solved in what I believe was a very unsatisfactory way. However, I agree that it was the only practical solution. It may well be that with experience of the operation of the new Act it will be found that extra tribunal members have to be appointed and trained because of the volume of work that it generates. We shall have to wait and see.
In the Notes on Clauses it is stated that cases dealt with under the sit-alone provision usually turn on legal issues rather than disputes about the facts. We disagree with the Government on whether cases arising under Clauses 11, 19 and 22 are more likely to involve legal issues than factual ones. We believe that they are more likely to be factual than legal, or at least to have a greater factual than legal element. Did the employer fail to produce some or all of the records that he was required to? Did he fail to give the employee some or all of his right to inspect? Did he refuse access to such person as the worker may think fit? Did he fail to comply with an enforcement notice? Has the time for an appeal against it expired?
I agree that in appeals under Clause 22 the permitted grounds are much more legal than factual. Nevertheless, they contain a substantial factual element as well. The important point is not whether we or the Government are right but the perception of the parties. An employer may well feel aggrieved by being bombarded with threatening notices that he believes are unjustified, or he may be threatened with drastic penalties when he believes in all good faith, and reasonably, that he has complied with them. Similarly, an employee may feel aggrieved that he has not received his full entitlement and that his employer has used all kinds of obstructive tactics against him. In either case one party or the other will want his day in court. Where the issue is one of fact he will want the satisfaction of having been heard by a form of jury.
One cannot rely on a single chairman exercising a discretion as to whether to enlarge the tribunal. Human nature being what it is, most chairmen with the qualifications that they need simply to be appointed to the post will feel themselves perfectly capable of handling cases on their own. Pressures on chairmen to clear their list will discourage them from adjourning to call in lay assessors cases that have started and have already taken time to reach the top of the list.
Courts, whether they be the mighty High Court of Justice or simple employment tribunals, exist for the benefit of litigants, not for the convenience of the judiciary--even less for the financial problems of the Treasury which has to pay judges. It is not for the Government to decide how judicial matters in these cases should be handled. If a litigant believes that his case deserves a full tribunal and makes a claim for one early enough in the proceedings then justice demands that he should have one and not be left with a grievance that he has not had a fair hearing.
It is perhaps relevant to note that under Section 4(3)(e) of the Industrial Tribunals Act 1996 parties who face a three-person tribunal can opt for a chairman sitting alone. In those cases, the parties in effect are given a choice. There is absolutely no reason why parties in cases under this Bill should not have a similar right; or why they should suffer a lesser right.
These simple amendments serve only to improve the working of the Act. They do not detract from the principles of the Bill. I urge the Government to accept them.
Lord Haskel: I listened carefully to what the noble Baroness said. However, the parties to a dispute already have the right to ask for three persons to hear the case, but it is the chairman who decides. The Employment Rights (Dispute Resolution) Act deals with this matter in some detail. It was a Private Member's Bill introduced by my noble and learned friend Lord Archer. He made it clear that the Government are committed to the tripartite nature of the tribunal system. Despite the noble Baroness's comments, perhaps I may take this opportunity to repeat that commitment. The two lay members can and do make a valuable contribution through their experience of employee relations in the workplace. This is much appreciated and in my opinion underpins the value of industrial tribunals.
The kind of cases where such workplace experience is particularly valuable are those involving, for example, unfair dismissal or victimisation. Other clauses in the Bill protect workers against such victimisation for asserting their rights under the Bill. Complaints to tribunals on such grounds must be heard by a tribunal of three. There is no discretion for the chairman to sit alone in these cases. This rightly reflects the existing practice in relation to matters of this sort, where the two lay members can bring their own experience to bear.
However, as the noble Baroness said, there is a different level of cases where, in my view, the role of the lay members is less relevant. These are typically technical cases and cases which hinge upon a point of law. The chairmen of those tribunals are always legally trained. There are three types of cases which Clause 27 adds to the "sit-alone" tribunals. The first such case relates to a complaint by a worker that his employer has failed to produce relevant records to enable the worker to check, for example, that he has received at least the rate of the minimum wage. It seems to me that this question is essentially a straightforward matter of fact. Either the employer has produced the records in question; or he has not. It seems unlikely that there would be dispute on that score.
The second such case relates to an appeal by an employer against the imposition of an enforcement notice by an enforcement officer. To succeed in such an appeal, the employer needs to show that the officer had no reason to serve the enforcement notice--for example, because the worker in question was self-employed; that there had not been any underpayment of the minimum wage; or that the specified underpayment was incorrect.
The question here is essentially, in my view, a matter of technical legal judgment. The decision which the tribunal will be called to make will rest on whether those criteria are met in the case in question.
The third type of case which Clause 27 adds to the "sit-alone" list is an appeal by an employer against the imposition of a penalty notice for failure to comply with an enforcement notice. The grounds for successful appeal in this case are similar to those for appeal against an enforcement notice--and in my view turn essentially on technical, legal issues.
In theory, the amendments which the noble Baroness has tabled would not prevent these three types of cases from being heard by the chairman sitting alone. This is because the effect of the amendments would be to make it compulsory to convene a tribunal of three, if either of the parties requests it. The consequence would therefore be to remove the chairman's discretion to decide whether to convene a tribunal of three. There is flexibility in the system which Clause 27 establishes, and in the whole system of "sit-alone" provisions which Clause 27 supplements. In every case where the chairman is required to sit alone, he retains discretion to decide to convene a tribunal of three. We feel that it is satisfactory to leave that to the discretion of the chairman. The existing legislation--the Industrial Tribunals Act, Section 5(4)(c)--makes clear that the chairman must have regard to any views of the parties before exercising his discretion to convene a tribunal of three--but the decision remains the chairman's. These amendments would remove the chairman's discretion. We have absolutely every confidence in the expertise of the chairmen of these tribunals.
In practice, the amendment would probably compel the three members of the tribunal to sit in nearly every case of the type covered. That is not necessary or desirable. That is the purpose of providing the chairman with the discretion which these amendments seek to take away. With that in mind, I hope that the noble Baroness will withdraw her amendment.
Page 17, line 4, leave out from beginning to ("and").
Page 20, line 30, at end insert--
("(6) The Department of Economic Development may by order repeal subsection (5) above and this subsection.").
Page 20, line 37, at end insert (", unless either party requests that the tribunal be composed of three persons").
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