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Lord McCarthy: My Lords, will the noble Lord tell me then which survey he is using? He is making policy. He says that the surveys to which we have been given access are not a basis for policy so he must have some other secret surveys that we still do not know about.
Lord McIntosh of Haringey: My Lords, that is a conspiratorial view of history which is not worthy.
I said no such thing. I propose now to say what that survey says. The survey comprised interviews with applicants to employment tribunals, both employees and employers. It asked what happened before the relevant case came before the tribunal. Some 62 per cent said that there had been no meeting. The survey did not say why that was. That question was not asked. As I say, 62 per cent said that there had been no meeting and 37 per cent said that there had been neither a meeting nor a written communication nor any other form of communication between the employee and the employer. That is all it says. It makes no further claim than that.
Lord Wedderburn of Charlton: My Lords, does my noble friend therefore not agree with the proposition—as I take it he does not—that over three in five of the applications to tribunals come from applicants who have not attempted to resolve the problem directly with their employer in the first instance? Those are not my words but those of the Minister in another place who introduced the Bill as a central reason for stopping these applications.
Lord McIntosh of Haringey: My Lords, I challenge the view that it is a central reason for stopping the applications. As regards the word "attempted", I cannot tell from the wording of the survey whether such attempts took place or not. I imagine that in a large number of cases if a meeting had been attempted it would have been achieved, or certainly if written communication had been attempted it would have been achieved. I do not believe that significant numbers are involved in that regard. This is a distinction without a difference. Frankly, the issue of this survey has been taken as far as it can be taken. It has little significance in policy making terms and I do not think that we should spend any more time on it.
Of course, there are all kinds of reasons why there should be no communication between employees and employers. As Judge Prophet said, that could be because some people left employment before they had an opportunity to start any communication. That is a legitimate reason for not entering communication. I am not saying, and the Government are not saying, and have never said, as the noble Lord, Lord Razzall, claimed we had said, that 62 per cent of cases could have been resolved outside tribunals. That is not the case that we are making. We are making the case that communication between employees and employers is greatly lacking and that if we could find ways to encourage communication between employees and employers that would be to the benefit of employees and employers and may also have the effect of influencing the number of cases which come before tribunals.
I turn to a matter where I hope that the noble Lord, Lord McCarthy, and I will be more in agreement. He gave a number of reasons for the increase in tribunal activity, in particular the increase in the jurisdiction of tribunals and the fact that there is no alternative to tribunals with what he described as the collapse of collective bargaining. The noble
Lord, Lord Lea, referred to the new rights which employees have which can be put before tribunals. The noble Lord, Lord Lea, also referred to the Deakin and Morris research. All of those are good reasons—which are not and cannot be influenced by this Bill—why there has been an increase in tribunal activity. However, that is not a reason for our failing to do what we can—that is what we are trying to do in the Bill—to achieve settlement outside tribunals. I believe that any fair and objective judge of this debate will also come to that conclusion. I am not saying—
Lord Wedderburn of Charlton: My Lords, will my noble friend allow me to make a legal point?
Lord McIntosh of Haringey: My Lords, I hope that I may be allowed to finish this point. I am not saying that there are not possibilities of amending the legislation in Committee which may make a difference to its effectiveness. However, I hope that the noble Lords, Lord Wedderburn, Lord McCarthy and Lord Lea, will agree that what we are trying to do is the right thing.
Lord Wedderburn of Charlton: My Lords, I am most grateful for those last few words on which we shall ponder deeply. I interrupted my noble friend only to be quite sure about the position. Does he accept that now still, as the Government accepted in their Routes to Resolution document and in the background paper which preceded it, the five reasons given by Dr Burgess in his research carried out for the department are still the five reasons which basically are the cause of the steady and regular increase of applications to tribunals? I accept that and I am sure that my noble friend should. I hope that he does.
Lord McIntosh of Haringey: My Lords, there are many reasons why there have been increases in applications to the tribunals. I have no doubt that the research of Dr Burgess and the Deakin and Morris research and the Earnshaw research and all of the other research which has been carried out have made positive contributions to that. My point about all of those is that the object of this exercise is not to impose any restrictions on access to justice through the tribunal system. That is the fundamental principle which must be accepted here. We are trying, first, to improve what happens between employees and employers. If we are doing it in the wrong way, I have no doubt that my noble friends Lord Wedderburn and Lord McCarthy will seek to show us how to do it better. We shall listen with respect, as we always do, and we shall seek to come to a proper judgment.
It was also claimed—by the noble Lord, Lord Razzall, in the first instance—that we are jumping the gun with regard to the taskforce. The noble Lord, Lord Sharman, claimed that we are jumping the gun in relation to the Leggatt report. The taskforce simply does not have those terms of reference. It is concerned with the operational efficiency of the tribunal system and, therefore, could not deal with the matters dealt
with in the Bill. The Leggatt report—the noble Lord, Lord Sharman, had to wait a year for a response to his own report; therefore he knows what I am talking about—concerns unifying all the tribunals, and it may take a considerable time to come to fruition. I do not believe that he would wish that to happen.
Lord Sharman: My Lords, I thank the Minister for giving way. Is he aware that I have not yet received a reply to my report?
Lord McIntosh of Haringey: My Lords, I saw it a month ago. I am completely astonished. I believed that it came through on a normal public mailing. I apologise to the noble Lord. Certainly a late draft is available and I shall inquire into its status.
I wanted to say a brief word to my noble friend Lord McCarthy about ET1. I believe that he would also wish me to say a word about ET3. We have no objection to the wording of ET1 and no particular objection to the wording of ET3. There is no desire to make any of them more complicated. But ET1 and ET3 are usually in application at present and we believe that, by prescribing them, we can bring them into use in every case. We consider that to be an advantage. A minor problem in relation to ET1 is that it is not available by electronic means, but I am sure that that can be overcome without major difficulty. In any event, the taskforce is looking at the application form. Thus, a further stage is taking place in relation to that.
I turn now to the issue of ACAS. A number of noble Lords believe that there is somehow a diminution of ACAS's powers, influence and contribution in what is proposed in the Bill. Certainly the statutory three steps do not comprise competition to the ACAS code. They are not intended to do so. They do not replace the ACAS code; they simply provide a bedrock. They provide what can be provided within the context of legislation. Legislation must be considerably more precise, more definitive and more unchallengeable in the courts than a code of practice.
We have the greatest respect for the code of practice but it does contain a very large number of words such as "reasonable" and "normal". We need both the code of practice and the statutory bedrock. There is no intention whatever by either ACAS or the Government to weaken the ACAS code—I say that to my noble friend Lord Lea—or certainly—I say to my noble friend Lord Gladwin—to make the ACAS code statutory. I say to the noble Lord, Lord Rotherwick, that the ACAS funding is not at issue in this Bill. If more funding is required, no doubt that can be discussed.
I shall say a brief word about unfair dismissal. Again, I disagree with those who claim that the Bill brings about a reversal of the Polkey judgment. I disagree with the noble Lords, Lord Razzall and Lord Moynihan, on that point. The "no difference" defence does not guarantee that an employer acted reasonably. Dismissal will still be unfair if an employer behaves unreasonably.
My noble friend Lady Turner raised the valid and interesting point about harassment and violence. She is, of course, right to say that it would be wrong for us to demand a complaint to employers in harassment or violence cases. Those will be dealt with in regulations under Clauses 30, 31 and 33.
My noble friend Lord Borrie brought up the issues raised by Judge Prophet about staying the tribunal rather than changing the penalty. We want these procedural changes to take place before a matter comes to a tribunal rather than when it is at the tribunal. What happens at the tribunal is, indeed, a matter for the taskforce. But the point here is that we are not requiring applicants to take up their grievances first.
The only changes that are being made—I say this to my noble friend Lady Turner in particular—are not a widening in the cost regime in general but changes to particular aspects of paid representatives and case preparation. My honourable friend Alan Johnson made it clear that he will consider a limit on compensation for case preparation if that is necessary. I believe that that should answer the claim in relation to double recovery.
I turn to the issue of gross misconduct and the modified procedures on gross misconduct. My noble friend Lord Gladwin and the noble Lord, Lord Razzall, both want investigation to be carried out before a dismissal takes place. I have had to dismiss people for gross misconduct by saying, "Just go. Get out. Clear your desk and be out in half an hour", because the situation was desperate and staff morale would have been destroyed if I had not done so. But, of course, not all gross misconduct results in instant dismissal. Clearly when it does not, it is desirable and necessary that an investigation takes place.
I believe that I can give my noble friends Lord Borrie and Lord Gladwin the assurances that they want on the matter of public interest disclosure. First, most whistle-blowing, as the Public Interest Disclosure Act provides for, is not in the form of a grievance between an employee and an employer. Nevertheless, the Bill and the accompanying regulations will ensure that there is no conflict with the Public Interest Disclosure Act.
With regard to the issue of "employees" versus "workers", the definitions of both those are in the Employment Rights Act 1996. There is a government review of employment status in process. Meanwhile, we did not consider it advisable to use the concept of "workers" here rather than "employees" as we are, for example, trying to match paternity regulations, which are based on employees, with maternity regulations, which are also based on employees. We should encounter problems if a different definition were used.
With regard to equal pay questionnaires, the issues raised were those of confidentiality. I do not deny that they are significant issues but they are no different from those which have already been raised in race
discrimination, sex discrimination and, above all, disability discrimination regulations. I do not believe that there is any new cause for concern.I was astonished by some of the things that were said from the Opposition Benches about union learning representatives. I believed that we had all agreed that the improvement of skills in the workplace was a priority for improving productivity in this country. The offer of trade unions to participate in that by providing, as they already have done, 3,000 union learning representatives, even when they do not get time off from work, seems to me to be an offer which should not be looked at askance. The Bill only says that the time off should be compulsory; it does not say that trade unions must provide union learning representatives. Of course, none of the employer organisations is unequivocally in favour of the representatives, but nor are the trade unions. This is a perfectly reasonable compromise.
I do not disagree with what was said by the noble Baroness, Lady Sharp, with regard to what is provided for in last year's Pre-Budget Report. Clearly we shall continue to pursue those matters. They were pursued in the November PIU report on training and learning and they were in our election manifesto. We shall not let them drop. The advantage of pursuing them here and now is that consultation was carried out by the Department for Education and Skills in May last year and we have an opportunity to bring the measures into force.
On fixed-term working, it is claimed that we have here gold-plating in the sense that we include pay and pensions. I agree that including pay and pensions is not in the directive, but in doing so we shall not be alone in Europe. Clearly, it is important that we should provide equal treatment for fixed-term employees as is provided for in the directive, not just for those in universities, but also for those in all sectors of employment. I understand the concerns about successive contracts, but surely the most important point is equal treatment, which is provided.
I am sorry that I have broken all the rules, but with interruptions, I have tried to answer questions. I look forward not to a two-sided debate, but a multi-sided debate in Committee and at later stages of the Bill. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Grand Committee.
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