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The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): The amendment of the noble Baroness, Lady Miller of Hendon, seeks to ensure that parties will have to give written consent to proceeding with a determination without a hearing, rather than attending a full oral hearing on their case. I am happy to be in a position to reassure that, as stated in the Explanatory Notes accompanying the Bill, the Government fully intend that such content must be received from both parties in writing before it is possible for the right to an oral hearing to be waived. It is important that neither party should be able to pressgang the other into pursuing a determination without a hearing rather than attending an oral hearing. We do not believe that it is helpful to include such detail on the face of the Bill, however. We believe that that is better set out in regulations.

The only exception to a requirement for consent will be where a respondent has failed to take advantage of his opportunity to defend the case. In such uncontested cases, the specific content of the respondent to a determination without a hearing would not be required, as he would have lost the opportunity to have a say in how the proceedings should be determined.

The Government have clearly laid down their intended implementation of the clause both in the Explanatory Notes, and on the record in the other place. In addition to the requirement for both parties to give their written consent, they will have to seek independent advice from a third party on the consequence of consenting. Such advisers will include ACAS officers and those who may advise on compromise agreements.

Furthermore, the final decision on whether or not a determination can be made without a hearing will lie with the tribunal. If the tribunal chairman believes that an oral hearing is in the public interest or is otherwise not appropriate, he may override the parties' consent if he wishes.

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The use of determinations without a hearing will be used as part of the fast track for the consideration of tribunal claims, which was consulted on in Routes to Resolution and which received broad support. The Employment Tribunal System Taskforce is studying the fast track as part of its consideration of improvements to the management of caseflow and case management. Any recommendation the taskforce makes on the use of determinations without a hearing will be taken into account before the regulations are drafted. There will be full consultation on the regulation and I hope that this will be of some comfort to the noble Baroness.

I turn to Amendment No. 88. It would provide that where a party failed to attend the hearing, the tribunal would, without hearing oral evidence or considering written submissions, find for the party who did attend. While it is clear that it is undesirable to have cases that progress to tribunal only to have one party fail to attend, I do not believe that the method that that amendment suggests is the best way to deal with such situations.

If a case were uncontested—that is, the respondent had failed to engage in the process at any stage—the tribunal, under the Employment Tribunal Rules of Procedure, may make a determination based on the applicant's evidence alone. Following the implementation of this clause, under such circumstances the applicant would also have the option of requesting the tribunal to make a determination without a hearing based on written submissions and without any contribution from the respondent. The respondent would have failed to take advantage of his opportunity to have a say in how the proceedings are determined by failing to submit his ET3 response form. Those are the ways in which applicants can receive a determination in a case that is not contested. They both contain some consideration of the merits of a case even though a respondent has failed to engage in the process in any way.

The amendment of the noble Baroness, however, deals not with such cases, as I understand it, but rather with circumstances in which the respondent has engaged in a process to a certain degree—perhaps even fully—but one of the parties cannot attend the tribunal on the date arranged. Where the party is ill or abroad on that date, they would be covered by the "reasonable excuse" caveat in the amendment. But what about the small employer who cannot attend for business reasons? If an employer had engaged fully in the process from receipt of the ET1 through conciliation for setting of the date for oral hearing but then had strong business reasons for failing to attend the tribunal on that day, it is unlikely that the tribunal would consider that a reasonable excuse and, under this amendment, would automatically find against the employer without consideration of any papers or the hearing of oral evidence.

There is no precedent for the determination of a case without the consideration of any evidence whatever and I believe it would be a dangerous path down which to venture. It would also allow applicants to succeed without having to make out their case before the

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tribunal. I hope that the explanations that I have given will allow the noble Baroness to withdraw her amendment.

Amendment No. 90 requires tribunals to dismiss or strike out proceedings unless they have a reasonable prospect of success. It is too draconian to allow no room for the use of existing deposit procedure, which is still intended to be the main weapon against cases that appear to have no reasonable prospect of success, striking out cases intended to be used only for those cases that are hopeless.

Moreover, we do not want tribunals to have the power to hear evidence at pre-hearing reviews. Such reviews are intended to be relatively quick and based on the contents of the originating application and notice of appearance, any representations in writing and any oral arguments advanced by the parties. If evidence were to be heard the review would take longer, thereby nullifying its value; that is, it would be more like an ordinary hearing. For that reason, I cannot accept the amendment and urge that it be withdrawn.

Baroness Miller of Hendon: I am comforted by what the Minister said on Amendment No. 87. If he is saying that the Explanatory Notes explain that what I am asking for can happen, that, so far as I am concerned, is perfectly satisfactory.

I am not so content with what the Minister said about Amendment No. 88. It uses the phrase, "failed without reasonable excuse", and the tribunal has the discretion either to do that or to adjourn to a later date. My amendment takes care of that. I hope that the Minister will look at that again.

I think that I accept what the Minister said about Amendment No. 90, but I shall read his comments with care. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 88 not moved.]

Clause 26 agreed to.

Clause 27 [Practice directions]:

[Amendment No. 89 not moved.]

Clause 27 agreed to.

Clause 28 [Pre-hearing reviews]:

[Amendment No. 90 not moved.]

Baroness Miller of Hendon: I am sorry, I have not spoken to Amendment No. 89.

The Deputy Chairman of Committees (Lord Lyell): We have moved on.

Baroness Miller of Hendon: I have missed my opportunity.

The Deputy Chairman of Committees: I hope that the noble Baroness will have another opportunity to discuss that amendment. I do apologise.

Baroness Miller of Hendon: That is quite all right. In my haste to get out, for obvious reasons, I overlooked the amendment.

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6.15 p.m.

Lord Wedderburn of Charlton moved Amendment No. 91:

    Page 35, line 6, at end insert—

"(aa) for authorising an employment tribunal to strike out an originating application—
(i) in the circumstances provided for in rule 15 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.I. 2001/1171); and
(ii) where the application manifestly discloses no reasonable grounds for bringing the claim,
but so that no application shall be struck out on the ground only that the tribunal considers the claim to be based on weak grounds.""

The noble Lord said: This is the first of some amendments where, to put it generally, individual employment protection law intersects with collective issues. I say that because, although we can say that most of what we are concerned with in the Bill is, of course, employment protection legislation and regulations as they affect the individual employee, nevertheless it is quite impossible to keep distinct individual employment protection and collective industrial relations as between organised employees and trade unions or, indeed, those in groups outside trade unions and their employers.

The amendment concerns the interlocutory injunction which the High Court can grant against industrial action. The reason the problem arises is partly through the rules that apply to this court order against collective action, which can be granted on the basis not of a proven course of action or proven liability on the part of, in effect, the union, but where the employer or third party has shown that there is the likelihood of a liability in a trade dispute in the defendant calling for industrial action. That is to say, where perhaps the ballot has not been properly held or where for some reason that is so.

This intercepts with the problems both of striking out and of what is to follow in subsequent amendments. As far as striking out is concerned, which is what the amendment is about, there is no more serious step to take on the part of a court or tribunal than to strike out the application or claim of a claimant. Clause 28 would so amend the law, as the Minister has made plain in another place, that it would allow the tribunal on a pre-hearing review to strike out an originating application.

Our amendment suggests that this nuclear response to a claim should be specifically described and defined in its possibilities under the Bill. The amendment suggests that an employment tribunal should be allowed to strike out a claim from an employee in two sets of circumstances.

The first are circumstances which are already in the employment tribunal rules and which this amendment would apply to pre-hearing reviews under Clause 28. Perhaps it is convenient if I briefly summarise what those are.

A claim can be struck out at the moment under Rule 15, which is mentioned in the amendment, in five situations: first, where there is notice of withdrawal of

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a claim—that is obvious; secondly, where the parties agree it should be withdrawn as struck out—that is obvious; thirdly, where the application is scandalous, misconceived or vexatious; fourthly, where the applicant or respondent has conducted proceedings in a manner that is scandalous, unreasonable or vexatious; and, lastly, where there has been want of prosecution—that is obvious.

We have no objection to the new pre-hearing reviews applying in those situations. They are well understood and we think that the power should go that far. However, we think that should be said in the Bill and not left simply vague, as at the moment, as was explained in another place by the Minister, to whom I shall come.

We also think that it is not unreasonable that an application which discloses no grounds for the claim, which is usually expressed as "no reasonable grounds", should also come within the power of striking out. I understand that that far, we are at one with the Government. However, what we object to is what is said in the Explanatory Notes. I do not know on the basis of what advice these notes were concocted but I quote them. The Explanatory Notes say about this clause:

    "Although rule 15 of the main Employment Tribunal Rules of Procedure permits the strike out of certain cases, including weak cases"—

I pause to say that Rule 15 does not say, "weak cases"; quite the opposite. I continue with the quotation. Although that is so,

    "it is arguable that the current rules do not allow the strike out of weak cases at a pre-hearing review. At present the power to strike out is limited and rarely used".

And then it goes on:

    "The objective"—

that is, the objective of this clause—

    "is to limit the number of very weak cases reaching a full hearing by confirming the tribunals' power to strike cases out at this stage in the process".

There are two or three problems with very weak cases and weak cases. First, to know whether a case is weak, as opposed to disclosing no cause of action, you have to engage in some sort of assessment of the claim and the defence. It is absurd to suggest that weak cases should be the subject of a striking out at this stage, especially in a pre-hearing review. And our amendment states,

    "that no application shall be struck out on the ground only that the tribunal considers"

—and, I interpose, considers at a pre-hearing review, because that is what the clause is about—

    "only that the tribunal considers the claim to be based on weak grounds".

I am glad to see that my noble and learned friend Lord Falconer of Thoroton has joined us because he will be, I am sure, the first to admit that sometimes cases which appear to be based on weak grounds succeed—if they have good enough counsel, that is. The suggestion made in the Explanatory Notes is quite wrong and that is why the amendment is being moved.

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As a matter of fact, if it were not for the Explanatory Notes, I am not sure that we would have thought that the Government would dream of suggesting this. But they do and they go on to cite three cases where they think the strike out power should be available. I refer to page 18 of the Explanatory Notes. They say, first:

    "Cases in which the facts have already been litigated and the applicant has no fresh or different evidence but insists on pursuing the case".

I would not object too much to that. Secondly, they state:

    "Cases where the facts are not in dispute but the interpretation placed on those facts by one party is clearly wrong".

Perhaps I may interpose a comment: this is typical of the drafting of parts of the Bill and Explanatory Notes. They are written by people who seem to think that they can impose a formula and it will apply itself naturally to the facts.

Whether a case is clearly wrong is a matter of legal interpretation. If it means, of course, that there are no reasonable grounds for such a claim and it manifestly lacks a cause of action, that is within our amendment. But what the tribunal considers to be wrong about the interpretation in law of a set of facts in a claim can be the matter—and should be the matter if parties wish to argue it—of argument.

The third example which is given in the Explanatory Notes, is:

    "Cases in which a party's application is not itself sufficient to lead to a successful outcome for him".

However, they then add,

    "and the party has stated at pre-hearing review that no further evidence or witnesses will be called".

I appreciate that, if he is not going to give any evidence, it might be easy to say that he could not win, but once again the tribunal should not have power simply to strike out—I insist on italicising the words "strike out"—or to use the nuclear weapon against the claim simply because it thinks it is not sufficient to win.

Here it is of some importance to note what the Minister said in another place on 13th December because I believe that our amendment is in fact what the Minister appeared to intend. He says, speaking of a tribunal, and I quote:

    "It should have the power to strike out the case at that stage"—

that is, at a pre-hearing review—

    "if it believes there is so little chance of success that it is not appropriate even that a deposit should be paid"—

which of course does apply to weak cases—

    "and the case heard. That it does not is an anomaly in the system. We are not making a radical change. We are tidying up employment tribunal procedures. It is questionable whether there was ever an intention to prevent employment tribunals from striking out cases at the pre-hearing stage".

Obviously there was because that is why the Bill would allow them to introduce that. The Minister continued:

    "However, the reference in the Bill to preliminary consideration implies that there must be a full hearing, irrespective of how unreasonable and misconceived the case is.".—[Official Report, Commons, Standing Cttee F, 13/12/01; cols. 114-115.]

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Perhaps we do not have the words quite right; I am always willing to believe that. But we say that where the application manifestly discloses no reasonable grounds, the tribunal should have power to strike it out. That is, if you like, the High Court rule. I have put in the word "manifestly" for a very simple reason and that is that the Explanatory Notes have so muddied the water by talking about weak cases that it is very important that the Bill should be absolutely clear on this and that we should know what the Government intend. I believe that my honourable friend the Minister in another place meant that; I believe that that is what our amendment says. I beg to move.

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