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The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton): I shall deal with the amendments first, and then deal with the point of principle that was raised by my noble friend Lord McCarthy about human rights material. In dealing with the specific amendments, I hope I will be able to answer the questions that have been raised by my noble friend Lord Wedderburn.
As my noble friend Lord McCarthy said, under Clause 33, certain complaints cannot be presented to a tribunal under the Bill unless they meet a number of conditions, which are related to the statutory grievance procedure. We refer to these conditions, if I may, as the "admissibility criteria", which are set out in subsections (2) to (4) of Clause 33.
Two of the criteria have time limits within them. Amendments Nos. 147 and 148 seek to change those time limits. However, both my noble friend Lord McCarthy and my noble friend Lord Wedderburn have said quite frankly that the reason that they tabled the amendments is to try to elucidate an explanation from the Government about what the bases are of the chosen time limits.
The first criterion, at subsection (2), stipulates that the employee must have sent a Step 1 communication to the employer, setting out his or her grievance. The second criterion, at subsection (3), states that at least 28 days should have passed following the sending of that communication, before a complaint can be presented. Amendment No. 147—the first of the three amendments—seeks to halve that time limit to 14 days. Why did we set the 28 day period? Not because the CBI asked us to; there is no particular research that says that 28 days is the right course. In setting the 28 day period, we had to balance two considerations. First, we did not want to set a period that was too long and which would unnecessarily delay an employee's access to the tribunal system. We think that 28 days is not too long to wait. Secondly, we wanted to ensure that there was a sufficiently long period to provide a window of opportunity for the parties to try to resolve their differences between themselves.
Within our proposed 28 day period, it should be possible in many cases—obviously, however, I accept that this is not possible in every case, as my noble friend Lord McCarthy rightly said—for the parties to meet at least once and to establish a dialogue. They may also take other steps, outside the statutory procedure, to try to clarify and unravel their problems. In our judgment, a 14-day period would be too short. It would give inadequate time for the parties to work through issues before legal action is taken. We know that the making of a tribunal application can create new tensions and distrust between employer and employee. It often makes it more difficult for parties to find a solution to their difficulties for themselves. That is ultimately a matter of judgment, not of science. Our judgment was informed by discussions with the TUC, the CBI and others. We believe that on balance it is the correct one.
Lord Wedderburn of Charlton: I am most grateful to my noble and learned friend, who has explained how the Government considered the matter. Did they consider that what they call "their problem" for the employer and employee would involve a number of cases in which an unreasonable employer—there would be a number of cases, perhaps a minority—has subjected a worker to a detriment? My noble friends may perhaps be better able than I am to think of an example. Let us take a case in which an employer has unfairly and improperly set the employee on a course on which he gets no more overtime. Perhaps that has been going on for some weeks, after which the employee might say, "That is a breach of his contract of employment. You have treated me in a way that's unfair. So I write you a letter". Then the situation goes
on. If it is an unreasonable employer, he may well not come to an accommodation and give the employee overtime working.Have the Government considered what happens to the worker during those 28 days, when his income is reduced? Is it the Government's intention that workers should remain in the position of detriment and disadvantage? Of course, it is not their intention that they should remain at a disadvantage. My noble friend hopes that there will be a settlement, but I have cited a case where there plainly will not be a settlement. There are such cases. Why should the worker suffer because the Government have plucked a figure out of the air with no research? They have had plenty of opportunity to carry out some research on this matter. I honestly believed that I did not know about a piece of research which existed. They have carried out no research and they are going to subject workers to a detriment for 28 days because they consider that to be the right period. Is that really the position?
Lord Falconer of Thoroton: It is the position. Ultimately, it is a matter of judgement. In considering the correct period, the Government and those advising them have sought to take a balanced view in relation to all sorts of cases, as my noble friend Lord Wedderburn very frankly accepted, not with a view to prolonging unnecessarily detriment but with a view to trying to promote the use of grievance procedures to resolve settlements. In some cases, the effect of promoting the use of the grievance procedure in this way will be to bring the detriment to an end more quickly than would otherwise have been the case.
I turn to Amendment No. 148, which seeks to change the time limit set by subsection (4). This stipulates a time limit within which the Step 1 action should be taken. Perhaps I may again explain the thinking behind subsection (4), which I believe is the purpose of the amendment. At present, tribunals will accept an application if it is made within the normal time limit for making applications so long as the complaint falls within the tribunal's jurisdiction. In most cases, the normal or original time limit is three months. However, as a consequence of Clause 33, such previously admissible applications will no longer be accepted by tribunals if the applicants have not first sent a Step 1 communication to the employer or waited for the 28 days, as I have already mentioned. We want to give individuals a chance to retrieve the situation; in other words, we want to give them scope to make a second application which meets the new admissibility criteria where their original one did not.
To achieve that outcome, we recognise that it will often be necessary for the tribunal to grant an extension of the normal time limit within which an application should be made. Under Clause 32 the Secretary of State has the power to make regulations enabling tribunals to grant such extensions. We envisage that the time limit would normally be extended from three to six months.
However, extensions potentially create problems. An extension might mean that the employer would remain in ignorance of the employee's concerns for a
long time; for example, as long as five months could go by before the Step 1 letter is sent. In our view, that is too long. Obviously, memories of the event which gave rise to the grievance might fade. The passage of time might make it more difficult to find a solution. Therefore, we have set a third criterion at subsection (4) which deals with this issue. It requires the employee to have taken the Step 1 action within the first month of the extended time limit for making applications. In most cases of this kind, that would mean that the employee should have taken the Step 1 action within four months of the event which gave rise to the complaint.Amendment No. 148 seeks to extend that by a further month. As I have already indicated, and for the reasons given, we believe that that is too long. The later a grievance is aired, generally the harder it is to resolve a problem. The Bill is about encouraging dispute resolution. We do not believe that this amendment is compatible with that objective.
I do not take the view that we would somehow be rushing the employee in any way. Members of the Committee should remember that this criterion will come into play only where the employee has already sent an inadmissible application to a tribunal; in other words, he has already set out his complaint in writing. It should therefore be an easy matter for the employee to set out the grievance again in the form of a letter to the employer.
Finally, I should point out that subsection (5) enables tribunals to be given scope to use their discretion when applying this third criterion. We know that there may be circumstances where it might take some time for the tribunal to decide whether the Step 1 action has been taken. There may be some administrative delay. Importantly, it might take time for the tribunal to decide whether the employee should be exempted from the need to send the Step 1 letter. In either case, a tribunal might not decide that an application was inadmissible until four months or more had elapsed. We would envisage providing that in such circumstances the tribunal should not apply the subsection (4) criterion.
That brings me to the final amendment in this group—Amendment No. 149. This amendment gives the tribunal discretion to disapply the first two criteria as well if it considers it just and equitable to do so. The amendment will create new uncertainty. It would lead to extra processing by the tribunal system. Almost inevitably, it would greatly increase the number of preliminary hearings that needed to be held to decide whether an application was admissible. In fact, I believe that it would be necessary in all cases in which either criterion was not met. How else could the tribunal be satisfied that it was just and equitable to prevent an application from being made?
The criteria that already exist in the Bill are simple to understand. In most cases, they should be easy to apply. We recognise that there may be special cases in which, in the interests of fairness, employees should not be required to send the Step 1 communication. In particular, the exemption would apply to cases in
which violence or severe harassment has occurred or may result. The exemptions would be set out in the regulations. Tribunals would need to decide whether an exemption should apply, where it is claimed. In difficult cases, we will be giving discretion to the tribunals to decide whether the exemption should apply.Also, as I have explained, we shall be ensuring that people who have made an inadmissible application can come back with a second application at a later stage. We are not closing off all access to the tribunals; far from it. There is therefore no need in our view to give this extra discretion to the tribunals.
I turn to the point raised by my noble friend Lord McCarthy about the human rights issue. The noble Lord read paragraph 24 of the 12th report of the Joint Committee on Human Rights, which deals with the point about primary and secondary legislation. I refer noble Lords to paragraph 29 of the same report, which states:
- "We conclude that the Secretary of State is entitled to take the view that the interference with access to the tribunal which the new version of clause 33 might cause would not be likely to impair the very essence of the right of access to a tribunal, and would therefore be unlikely to give rise to a violation of Article 6(1) on this ground".
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