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Lord Wedderburn of Charlton: I begin by thanking the Minister for this unusual disclosure of the statistics on the matter. He has saved researchers a great deal of work and I shall read Hansard with interest. However, they relate to a very small number of cases out of 130,000: 234, of which 48 deposits were paid, two are not yet decided and four struck out. We are talking about a minute number. That does not suggest there will be a need to increase the deposit. I forget exactly what the figures for 1999-2000 proved—I am terribly sorry—but one case proved something. That is such a small sample that to have it as the basis for retaining a power to increase deposits with one small exception seems unreasonable. The exception, of course—and it is astonishing to hear this from the Government—is in case there is rather serious inflation. I have the greatest confidence in my noble friends and am sure that they will pursue policies that will not increase inflation. I am astonished to hear the Minister say that there is a serious risk that that course of events might require an increase in deposits. If that were so, this would be another case in which the matter should not be dealt with by regulation and the Secretary of State should
not have the power to secure an automatic increase in deposits. Deposits are a very serious matter for a worker. He may be told, "Yes, you can come to a tribunal. We think your case is weak; £500, please". If there is a little inflation, it seems that the sum could be £1,000. That is unreasonable. The Government must explain to parliament exactly why they are doing that and they must face amendments, conditions or qualifications, especially if they are the cause of the inflation because they failed in their policies. However, they would put the cost on the poor old worker who has what is thought to be a very weak case. That is not very reasonable and I hope the Government will reconsider this matter, because deposits are still a matter for discussion. I appreciate that they are relatively new. However, we have now got some figures for the past two years—they are down to one case and two cases, and we will think about the matter again. I hope the Government will also think about it again. It is not obvious that there should be a power by regulation to increase deposits. With that, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
6.45 p.m.
Lord Wedderburn of Charlton moved Amendment No. 93:
- After Clause 28, insert the following new clause—
The noble Lord said: In this amendment, we come to the relationship between individual employment claims and collective issues. The Minister indicated to me very kindly that I mis-addressed at one point Amendment No. 91, and I apologise to the Committee for doing so. I now address Amendment No. 93.
Amendment No. 93 concerns the question of interlocutary injunctions. The interlocutory injunction is a device whereby an employer or a third party can obtain an order from the High Court, banning the organisation of industrial action, not where there is a clear case that he has the right to do so but where, on the authorities since the Ethicon case in 1975, there is what Lord Diplock called, and I quote,
Where there is a possibility and a serious issue, and where the balance of convenience, as the courts put it, is on the employer's side, the High Court may well, and probably will, issue an injunction. That jurisdiction interacts with the new provisions which were introduced in the Employment Protection Act 1999 in
Where the industrial action is protected, the new Act in 1999 introduced a new rule about individual employment law on unfair dismissal. It is usually summarised by saying that for six weeks an employer may not dismiss an employee by reason of the industrial action without fear, or without liability, of an unfair dismissal. As a matter of fact, that does not do justice to the section, because there are some other twiddly bits, as a student once said to me, in the section. However, it is a fair summary, I think my noble friend will accept, of what we begin with after the 1999 Act.
The question therefore arises: if the employer obtains, or indeed has grounds to obtain, an interlocutory injunction, and he is minded to dismiss an employee by reason of the strike action—it happened recently at a well known dispute in Carnarvon in Wales, where it has given rise to a great deal of difficulty—is the individual employee still protected during his six weeks?
This was confronted by the new Employment Tribunal Regulations 2001, Statutory Instrument 1171, by the introduction of Rule 9 in Schedule 1. Rule 9 says, and I summarise, that where this situation arises, the tribunal may adjourn the proceedings where specified civil proceedings have been brought until such time as the interlocutory proceedings—strictly, we no longer speak, I suppose, of interlocutory proceedings in the Rule of the Supreme Court, but I quote the phrase from the rule—arising out of the specified civil proceedings have been concluded.
So, while the interlocutory claim goes on to judgment, the worker may find that his claim for unfair dismissal is adjourned. In fact, my understanding is—my noble friends with experience in this matter will correct me if I am wrong—that most tribunals regard it as proper to adjourn the unfair dismissal proceedings until judgment is given in the interlocutory proceedings in the High Court for an injunction.
The amendment does not challenge that. Personally, I regard it as unfortunate that a worker should have to wait during proceedings, which may conclude merely on the basis of a serious question to be tried for his protection, to know whether he has protection under the 1999 Act in the six-week period of protection. The issue will arise in later amendments whether six weeks is adequate and whether it should be confronted.
What this amendment goes to is a later part of Rule 9 in the Employment Tribunal Regulations. It states:
Interlocutory injunction cases can take some time. I know it is a long time ago, but in the leading case of Stratford v Lindley in 1964 the proceedings were begun on 3rd February 1964 and were concluded in the House of Lords on 28th July of that year. Other cases have taken much longer. In the Merkur case of 1982 they extended from 23rd July 1982 to 21st April 1983. It should not be thought that interlocutory proceedings are necessarily quick.
Even last year, one of the London Underground cases against the National Union of Rail, Maritime and Transport Workers took over a month to reach a decision in the High Court itself. You may say that a month is not six weeks, but during that month the worker concerned did not know what his status was. Even if he has to wait for the first judgment, why on earth should he wait for the appeals? It was not clear in that case whether there would be an appeal or not, it was thought there probably would be. Therefore, it is virtually impossible to advise such an employee during the proceedings on appeal in interlocutory injunction cases.
Therefore, as regards the point of interaction—which comes up very centrally on the Bill, because the Bill is concerned with employment protection rights and especially unfair dismissal rights—will the Minister reassure us that the Government will think about this matter? We hope that they will think about it not merely in the review of collective issues which we are told is going to come, but think about it now. It concerns real people who are dismissed from their jobs, who do not take back a wage the next week and who are made to wait for the natural proceedings of our courts on appeal when there have been other proceedings launched in the High Court for injunctions against their trade union. Indeed, it may not be their trade union; it could be that they have joined the industrial action without being members.
My noble friends and I suggest that it is a matter of justice that this rule about appellate proceedings on interlocutory cases on industrial action injunctions should be reviewed, and we hope that the Minister can give us some assurance that it will be. I beg to move.
"DISMISSALS IN CONNECTION WITH INDUSTRIAL ACTION
In rule 9(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.I. 2001/1171) all the words after "delict;" shall cease to have effect."
"a serious question to be tried",
or, as others have put it, where there is the likelihood or a serious issue as to whether the defendants have not observed all the particularities of the law in this respect. Of course, in the organisation of industrial action, that now includes not merely pursuing a trade dispute but observing all the detailed requirements of the ballot and notices under the 1992 Act.
"The interlocutory proceedings shall not be regarded as having concluded until all rights of appeal have been exhausted or the time for instituting any appeal in the course of the interlocutory proceedings has expired".
I fully appreciate that that would be the average lawyer's understanding of proceedings in the High Court for an interlocutory injunction. You have to wait for the appeals. But in this case the person who is
being made to wait, and the person who is being deprived of protection, is the employee who, by hypothesis, has been unfairly dismissed.
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