Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Sainsbury of Turville: This amendment concerns the way that tribunals process claims of dismissal which result from industrial action. The Employment Relations Act 1999 makes it unfair to dismiss employees for taking part in "protected" industrial action unless it lasts for more than eight weeks. Industrial action is protected where an employee is induced to take it by his union and the union, in doing so, complies with the legal requirements governing the organisation of such action.

The employment tribunal rules provide that a tribunal may adjourn proceedings where civil proceedings have been brought challenging the legitimacy of the industrial action. The rule provides

18 Mar 2002 : Column 180

that the period of adjournment extends until the interlocutory proceedings arising out of the civil proceedings have been concluded. In particular, Rule 9(2) of the Employment Tribunal Rules specifies that interlocutory proceedings are not to be regarded as having been concluded until all rights of appeal have been exhausted or the time for bringing an appeal in the course of the interlocutory proceedings has expired.

The amendment would do away with that part of Rule 9(2). It would mean that tribunals could not adjourn claims while an appeal was heard in the civil courts or while an appeal might be brought. The effect of the amendment would be to introduce a considerable degree of uncertainty. It is futile for tribunal proceedings to continue, let alone conclude, when the courts may subsequently decide that the industrial action is legitimate or, as the case may be, is not legitimate after all. This would involve the tribunals and the parties to the claim in a pointless waste of time. If the courts were to decide on appeal that the industrial action was not legitimate, the applicant's claim for unfair dismissal would fall and the time the tribunal had spent on the claim would be wasted.

If, on the other hand, the court of first instance held the industrial action to be unprotected, but on appeal it was held to be protected, the amendment could result in a tribunal dismissing applications that should have been admitted and held to be unfair. I cannot believe that Members of the Committee would approve of that result.

We accept that there is an interaction here, and I believe that we accept that that can have an impact on the applicants. But it is difficult to see how one can resolve the issue until the final proceedings have taken place on whether or not the industrial action is legitimate.

Although I recognise that Members of the Committee may have tabled this new clause in order to ensure that tribunal cases are not unduly delayed because of actions in the courts, I cannot accept it because it seems to be a recipe for confusion for all the parties involved.

Lord Wedderburn of Charlton: I am grateful to the Minister for not pointing out the glaring inadequacy of my presentation of the amendment. I always used to say in seminars, "Never quote a section unless you've got it in front of you, especially after six o'clock at night". I should have referred not to six weeks but eight weeks, and I should have referred to Section 238A. I have a feeling that I referred to another section. I take the opportunity to apologise immediately to the Grand Committee. It obviously vitiates my presentation of the amendment.

The Minister says that my proposal would lead to confusion. It might be difficult to apply, but it would not lead to confusion for those who are unfairly dismissed; it would give them a remedy.

We meet these situations sometimes. The courts construct these rules of procedure, and the people who suffer—the Minister seemed satisfied with that—are

18 Mar 2002 : Column 181

those who have been unfairly dismissed. The eight, not six, weeks will run out; the other conditions of Section 238A will not apply; a person will be unfairly dismissed; and the case will be adjourned. Now, under the new clauses in the Bill, especially Clause 33, people may find that they lose their ability to go to a tribunal.

The Bill hangs together. One cannot discuss this matter without looking at Clause 33, but the Minister made no reference to that. People will be prohibited from presenting a case to a tribunal if they have not done everything that Clause 33 requires. That is the reason why this becomes very important. I entirely appreciate the difficulties which the Minister very reasonably pointed out in relation to our amendment. I hope that he will look at the matter again; we certainly shall. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

Lord McCarthy moved Amendment No. 94:

    After Clause 28, insert the following new clause—

Not less than 30 days before—
(a) making regulations, or
(b) prescribing or prescribing requirements in relation to any form or matter,
under this Part, the Secretary of State shall publish a draft of his proposals."

The noble Lord said: We must take in two amendments here—Amendments Nos. 94 and 200—because Amendment No. 94 does for Part 2 of the Bill what Amendment No. 200 does for Part 3; otherwise they are identical.

We are seeking to insert a new clause which concerns the publication of the draft regulations 30 days before,

    "making [those] regulations, or . . . prescribing or prescribing requirements in relation to any form or matter",

connected with those regulations.

I have said several times thus far that what is meant by "publication" differs from one case to another. Who is supposed to be told about these matters and who is supposed to be consulted? In this case, we are suggesting that there should be the widest circulation possible because the regulations will be published and we are covering all the central controversial provisions in the Bill. My noble friends and I have tabled significant amendments only to Parts 2 and 3. We are going along with Parts 1 and 4. Therefore, we are asking that all 20 or so clauses, every single one of which depends upon regulations, should set the context or make a definition so that people know what they will be facing. We have already discussed much of that but we shall be discussing it again at great length, for example, when we reach Clause 33.

I turn to the regulations which the Minister will not be putting on to the face of the Bill—at least, thus far he will not do so. The Minister will not tell us a great deal about what will be in the regulations—at least, thus far he has not done so—and he will not let us see

18 Mar 2002 : Column 182

them. We are saying that the Minister should at least allow everyone to see them 30 days before they are brought into force.

I do not want to continue with this matter further, although I may do so if the Minister does not accept the amendment. However, I should have thought that the issue was self-evident. Indeed, as he sometimes does, the Minister may well say to me, "Well, of course we are going to do that", and that is why I shall not continue further. The difficulty with the Bill—it has many difficulties—is that so often it appears to be terrifying but then ceases to be terrifying because the Minister says, "When you see the regulations, you will realise that it will not hurt". Sometimes he sounds like King Lear:

    "I will do such things,—

What they are yet I know not,—but they shall be The terrors of the earth". At other times he says to us, "Not at all, not really; you'll hardly notice it". If the Minister will not amend the provision, perhaps it will be possible to see the regulations 30 days before he brings them in. I beg to move.

Lord Sainsbury of Turville: The employment procedure tribunal regulations which are intended to be covered by Amendment No. 94 are subject to the negative resolution procedure and must lie before both Houses of Parliament for 21 days before taking effect.

In addition to the statutory requirement to consult the Council on Tribunals, we normally consult the main bodies representing employees and employers, including small employers, lawyers and other representatives, well in advance of the employment tribunal procedure regulations being made so that we can take account of their views. We have already made clear our intention to conduct a full public consultation on the changes to the regulations which will result from the Bill.

Likewise, in producing forms which may be prescribed by the Secretary of State outside of the regulations, the Employment Tribunal Service will, on her behalf, consult the tribunal presidents as well as normally consulting tribunal users and other relevant bodies, including ACAS. Sometimes it may not be necessary to consult more widely than the presidents where, for example, a quick, minor tweaking of the form is required. Those most affected by changes of any significance will be aware of them and will have had the opportunity to comment on them long before they take effect. Therefore, the amendment is unnecessary.

So far as concerns Amendment No. 200, the Government also intend to conduct a wide public consultation on drafts of the regulations to be made under Part 3 of the Bill. These are the regulations to be made under Clause 31, which is concerned with adjustment of awards, under Clause 32, which is concerned with consequential adjustment of time limits, and under Clause 33, which is concerned with complaints about grievances. The consultation will ensure that the regulations achieve clarity and are comprehensive without being over-prescriptive. In

18 Mar 2002 : Column 183

particular, there will be pre-consultation with such people as the tribunal judiciary, ACAS, employer and employee organisations and employment lawyers.

Therefore, those most affected by the regulations will be made aware of what we have in mind and will have ample opportunity to comment before the regulations take effect. They will be subject to the affirmative resolution procedure. Accordingly, the amendment is unnecessary and I that it and Amendment No. 94 will be withdrawn. Even the threat of the noble Lord, Lord McCarthy, going on about this at some considerable length cannot persuade me to accept the amendment.

Next Section Back to Table of Contents Lords Hansard Home Page