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Baroness Turner of Camden: I rise to support this amendment. A number of us feel a bit suspicious of what may happen if a very simple form, which ET1 is at the moment, is somehow passed over to a government department for redrafting. Some of us have experience of some of the forms which have had to be completed by claimants in the field of social insurance. We often find them very complicated and they sometimes look like an obstacle to people obtaining benefits. There seems to be nothing at all wrong with ET1. It is a very simple form that can be filled in by people with very limited educational attainments and perhaps those with language difficulties. We want to know why it is necessary for it to be redrafted at all; it has operated quite well for a number of years and there seems no reason at all for the provisions in Clause 25.

Baroness Miller of Hendon: I, too, would like to agree with Amendments Nos. 84 and 86. They are based on a similar principle to my later Amendment No. 89, which relates to Clause 27. I am not sure if these two amendments in fact go far enough, in so far as the Law Society has represented to me the view that these matters should not be dealt with by the Secretary of State but exclusively by ACAS or the president of the tribunals. I agree most strongly with the sentiment in those two amendments.

The noble Lord, Lord McCarthy also spoke to Amendment No. 85, which I would not accept—or, to phrase it differently, the amendment would need considerable explanation before I could understand it. It seemed to me to be saying that an applicant, who

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would always be the employee, need not comply with the detailed dispute procedure laid down in Schedule 2. I may not have understood that correctly but that is what it seemed to be saying. I thought, perhaps incorrectly, that Schedule 2 was introduced by the Government to replace their original proposal that the employee should pay costs if he or she lost, which seems to be a compromise position that the Government have found themselves in, and which should be accepted as it is. However, perhaps I do not understand that amendment.

Lord McCarthy: Will the noble Baroness tell me which particular bit of Schedule 2 she is concerned about?

Baroness Miller of Hendon: My concern was not about a particular part. It seemed to me as I read it that the applicant need not comply with the details of the dispute. I said that I was not sure I understood it, and if the noble Lord, Lord McCarthy, wishes to explain it to me, then he may do so. He may not feel that that is necessary. I certainly support Amendments Nos. 84 and 86. I would need more convincing about Amendment No. 85, but it is not for me to agree to or otherwise; it is a matter for the Government.

Lord McCarthy: The noble Baroness, Lady Miller of Hendon, appears to want to help. We cannot say precisely what the applicant will be required to answer in the new ET1. This is our difficulty and that is why we have an amendment.

As I tried to say when I moved the amendment, what the Minister said may be true. At one stage, he said that he wanted this only because he had to get it on e-mail and you cannot get ET1—I do not know why, one can get everything on the e-mail or on the Web—on the Web. Another time he said that some ET1s were different from other ET1s. He wants to standardise it. Why? I do not know why he wants to standardise it. They are not very different. What does it matter?

We do not know. We know what people say. We know what Judge Prophet says. He says one could use this in order to block access to the tribunal. I am not saying that that is what they want to do. I will say, however, that the CBI still seems to think that it can get 40,000 cases out of this. It also wants the Government to introduce a review and to say in a couple of years' time that if the number of cases is not going down, they will in fact introduce further legislation.

I want to know what the Government think and whether they have given such an undertaking to the CBI. We do not know. We do not know precisely what will be on the form. That is why we have tabled the amendment. We are saying that the general limitation should be placed on what we are asking the employee to say. He wants to discharge his side of the enterprise. Once he discharges his side, if the employer does not discharge his side, the process moves forward. It is the employer's fault because the employer has not filled in the questionnaire. We want the applicant to be able to discharge his obligations—very easily and as easily as he can now do it with ET1. The simple formula we

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have come up with is that the most that he has to do is to make "statements of honest belief". They do not have to be right. He does not have to get the schedule right. He does not have to be correct about law; he has to be correct to his honest and best belief.

The main test of that will be what is on his contract of employment. If he can point to the procedure that the employer has given him and say, "I've done all that", he is through. That is the purpose of the amendment.

Lord Wedderburn of Charlton: My noble friend Lord McCarthy puts the point very clearly and is obviously right. When the Minister responds, will he make reference to the matters that flow from this? Two things occur to me. First, Clause 25 is, as it were, the hinge of the apparatus of the Bill. This involves the form—whatever it is to say—that the employee must put in to initiate proceedings. That relates to Clause 33, in which, of course, he can be prohibited from presenting a complaint if he has not done what Clause 33 wants; which is mainly, as my noble friend rightly says, the completion of the necessary steps in Schedule 2. If the form is going to ask him to guarantee that he has completed the step under Schedule 2, it should, in our submission, be on the basis of "honest belief".

Secondly, although other amendments could not be grouped with this amendment or with Amendment No. 85 in particular—I do not want to upset the Minister's very large file in any way—they relate to matters arising in subsequent amendments. I mention especially Amendment No. 192, in relation to which we shall say that the explanation of the effect of relevant statutory procedures should be put into the written particulars by the employer, which the employer is obliged to give under Section 1 of the Employment Rights Act 1996 and which he has been obliged to give since 1963. I hope that my noble friend will not consider this to be an isolated amendment. Amendment No. 85 is absolutely central to the practical machinery of what will be put through if the Bill is enacted as it is and if the particulars ask him to say something about his position in relation to Schedule 2.

5.15 p.m.

Lord Gladwin of Clee: I just happen to have a copy of the ET1 application to an employment tribunal. It is a straightforward and simple document and I shall be interested to know why there is an intention to change it.

I am concerned about two matters, which have already been referred to by Members of the Committee. First, the DTI is not an infrequent party at employment tribunals—that is true—and it is questionable whether the ET1 and ET3 forms will be the products of someone who is not infrequently a party. I believe that a big question mark hangs there.

Secondly, this matter is simple but it is not prescribed. I suppose that at some point—I am sorry that the noble Baroness, Lady Gardner, is not here—most applicants fill in one of these forms, but it is not unusual to see them filled in rather skimpily. I had one

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today—my late arrival was due to the fact that I was at an employment appeal tribunal—where the continuation page went on and on. Therefore, I am worried about what is intended by taking these powers under this part of the Bill. However, I return to my concern about the Secretary of State having responsibility for doing that.

Lord McIntosh of Haringey: Clause 25 appears to me to be extremely wide-ranging. It seems that, under the terms of the clause, one could make quite dramatic changes in the form. However, I am sure that that is not what is intended. Rather than pursue what might be done under certain circumstances but which the Government have no intention of doing, it might be better if I were to respond to the amendment before us.

Before doing so, I should say that Clause 25 has been subject to scrutiny and consultation. In particular, the Council on Tribunals, which has the overarching responsibility as the statutory body responsible for keeping under review the constitutional workings of tribunals, including employment tribunals, was content that the use of revised forms should be mandatory. It made no comments about consultation. ACAS also responded to various points in the consultation paper but did not suggest that it should be consulted on the prescribed forms and documents.

More recently, this matter has gone before the House of Lords Delegated Powers and Regulatory Reform Committee. The department told the committee that the Secretary of State would be eligible to make provision in regulations on the basis of existing powers. However, in order to have the flexibility to make changes quickly and to make minor changes to the wording and layout of the forms, which would not necessarily justify the making of a statutory instrument but which would make the forms more user-friendly, it is considered helpful for the Secretary of State to have the power to prescribe forms under the regulations. The regulations will make provision about publication of any requirements prescribed by the Secretary of State in this way in order to ensure that the forms are readily available to those who are likely to need them. The Delegated Powers and Regulatory Reform Committee made no comment, adverse or otherwise, on that submission.

I turn to the question of consultation. I can give an absolute assurance that the tribunal presidents will be consulted—that is asked for in Amendments Nos. 84 and 86. I can also give an assurance that ACAS will normally be consulted. Clearly there may be occasions when a swift or minor adjustment to the form is required, but that will not be the normal situation and ACAS will normally be consulted. Of course, there will also be consultation with the Council on Tribunals.

We do not normally spell out on the face of a Bill who should be consulted. That is largely because, if one includes one person on a list but excludes someone else, it is assumed, perhaps wrongly, that the people who are not on the list will not be consulted. However, there is no difference in relation to the substance.

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Amendment No. 85 is concerned with the new statutory dispute resolution procedures. The intention here is to ask applicants not about the law, or about what is going to happen in the future or anything of that kind, but what procedures they have used. That will simply involve placing a tick in a box. There is no question whatever of them being asked to guarantee. That would imply somehow that penalties would be applied if they said anything wrong. Clearly applicants do get things wrong when filling in the forms. Sometimes, in the worst case, the applicant will state on the form, "I was unfairly dismissed" and the response will state, "No, you weren't; you were fairly dismissed". That does not get one very far and one has to make further inquiries. Those further inquiries could be made by letter or telephone, as happens now. No change is proposed to that.

I am interested in the point made by my noble friend Lord Gladwin about the DTI being a party. Of course, he is right to say that the DTI can be a party to tribunals. But how could it seek to further its own interest as a party to proceedings by the way in which it framed the questions in the form? Surely the DTI's interest is in ensuring that a reasonable explanation is given about the complaint in order that the other party can understand it. Of course, we want the form to ask questions such as whether the applicant has discussed the problem with his employer. We shall deal with that point when we reach Part 3 of the Bill.

So far as I can see, the DTI has no interest in distorting the form. Only a tiny proportion of claims—fewer than 2 per cent—involve the DTI. If an assurance is required that it will not be led by those 2 per cent of claims then I am very happy to give that assurance.


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