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Lord McCarthy: The Minister is not dealing with paragraph 24.
Lord Falconer of Thoroton: I am not; I want to deal with the matter overall.
Lord McCarthy: I want a response to paragraph 24. These matters were drawn to the attention of each House. Paragraph 29 has nothing to do with paragraph 24. Having drawn the matter—that is, that this issue should not be left to subordinate legislation—to the Minister's attention, will he deal with it in the Bill?
Lord Falconer of Thoroton: It is for the Committee to decide whether my noble friend Lord McCarthy is right. It is irrelevant if the Committee, having referred to the process issue, concluded in relation to the substantive issue that there was likely to be no infringement of human rights. The noble Lord, Lord McCarthy, might regard that as the more important of the two issues—the other being the process issue. That is a matter entirely for the Committee to judge. The one point at which I should certainly take issue with him is that the matter is "irrelevant".
On my noble friend's point about the process issue rather than the substantive issue, I certainly respect the view of the Joint Committee on Human Rights, but it is not always practicable to put provisions in primary rather than secondary legislation simply because the former course would demonstrate ECHR compatibility, which in fact the committee thinks is demonstrated anyway. That is the position in this case.
We want to consult properly on the detail of the procedures contemplated by Clause 33 before making regulations. To put those details on the face of the Bill would remove part of the procedure into primary
legislation. That is not necessary, particularly when the committee said in relation to Clauses 29 and 30 that it broadly thinks there is compatibility. With respect to my noble friend, his point does not have that much force.Turning to an entirely different subject, this may be a convenient moment for the Committee to adjourn for the Statement on Consignia. The Committee will resume immediately after the Statement. The noble Lord, Lord Goodhart, has now been speaking for three minutes, and I know that certain Members of the Committee are involved.
[The Sitting was suspended from 4.1 to 5.7 p.m.]
Lord Gladwin of Clee: Before my noble friend Lord McCarthy replies, I want to ask the Minister an unfair question. Will there be a definition of "present" in the regulations?
Lord Falconer of Thoroton: I understand that the employment tribunal regulations establish what constitutes presentation. There have been many cases about that, to which I am sure my noble friend alludes. One should not present a complaint to an employment tribunal; the presentation of a complaint is a legal concept in many other employment Bills. The matter has been frequently discussed in cases, and I think—I shall have to check this—that it is referred to in the Employment Tribunal Rules of Procedure. Perhaps I may write to my noble friend about that.
Lord Wedderburn of Charlton: Perhaps my noble and learned friend will take on board the fact that the regulations refer to presenting an originating application. That was the thrust of my noble friend's question.
Lord McCarthy: On Amendments Nos. 147 and 148, the Government say that they have no evidence and no research and that they do not know why they gave the figures; however, they did so. On Amendment No. 149, they said something about the matter being uncertain. To whom would it be uncertain? We are trying to get not certainty but a small window of chance for the applicant. If that is uncertain, that would be unfortunate. However, no one wants to know about that.
I take the Minister back to what he said—or rather, what he did not say—about paragraph 24 of the report of the Joint Committee on Human Rights. I do not want to go into paragraph 29. That paragraph was not discussing what was in paragraph 24. However, let us not argue about that.
Paragraph 24 recommends three things. First, it wants the provisions of Clause 33(5) to be included in the Bill. It states that it makes it more difficult if they are not on the face of the Bill; therefore, it would be easier if they were. It also seeks to establish whether those provisions are compatible with convention rights. Secondly, it says that if they can be put into the regulations, they can be put on the face of the Bill, so why does the Minister not put them on the face of the Bill? Thirdly, it says that it would facilitate the certainty and assessment of proportionality if that was
on the face of the Bill. Those are three assertions—statements or, in a way, arguments—for putting the matter on the face of the Bill. Paragraph 25 states:
- "We draw these matters to the attention of each House".
Amendment, by leave, withdrawn.
[Amendments Nos. 147A to 149 not moved.]
Lord McCarthy moved Amendment No. 149ZA:
- Page 38, line 3, at end insert—
The noble Lord said: The amendment is a very small attempt to get a little flexibility. It is, in effect, an attempt to advance fairness criteria—that, in effect, is what that part of the ERA refers to. That does not involve a question of discretion. The previous amendment sought to give the tribunal an element of discretion.
Our argument involves saying, "Suppose that there is prima facie evidence that comes to the tribunal that the employer has in fact acted in a way which is demonstrably unfair—that there is malice or bias or quite clear evidence of a legal right that is not being granted". Surely it should be the case that because of some technical reason, or accidental reason, that the applicant could not fulfil the terms required by the schedule, the tribunal should be able to say, "In these circumstances, we think the employer has not acted in fairness and therefore we should admit the case to a hearing". I beg to move.
Lord Wedderburn of Charlton: The type of case to which the amendment refers might be as follows. An employee working in a workplace of, let us say, 20 workers is aggrieved because his contract has been broken by the employer in some way that is detrimental to him. We could say that he has not been paid his wages or that there has been an illegal deduction from his wages. However, being a careful sort of chap, he gets written statements from all other 19 employees to say that they know that that is the case. He then goes one further and he gets an affidavit from his friend, who happens to be a local solicitor—officer of the court—showing that it is as near as one can prove a certainty, or it is at any rate likely, that the case is open and shut.
The amendment uses the word "likely" because it adopts the standard of proof that is used in cases of interlocutory injunction in which the High Court will give an injunction in a trade dispute argument. If that is good enough for making an injunction against a union, we thought that it could be the standard of proof required, whereas a serious question to be tried must be proved by affidavits and written statements.
Indeed, I venture to suggest that were the worker to be shut out such a case would not be found attractive in Strasbourg. I submit to the Committee that this is a small, confined, precise but persuasive amendment.
Lord Falconer of Thoroton: The amendment seeks to empower the tribunal to dis-apply the relevant time limits where the employee's complaint relates to unfair dismissal and in the view of the tribunal it is likely that the employer acted unfairly. I assume the purpose, rightly, is to ensure that in these cases, the employee can access the tribunal system as early or as late as he chooses.
Perhaps I may make one point absolutely clear right from the outset. It is not our intention to apply the admissibility criteria to most unfair dismissal cases. My honourable friend Mr Alan Johnson made that absolutely clear, repeatedly, in another place. Dismissals should be processed via the relevant dismissal and disciplinary statutory procedure. It is, therefore, entirely inappropriate to expect the employee thereafter to initiate a grievance on the dismissal in order to access the tribunal system.
Lord Wedderburn of Charlton: My noble and learned friend appreciates that he has just said that the amendment will apply in the case of a grievance which arises out of such a situation. It is not an attempt to apply it to unfair dismissal as such.
Lord Falconer of Thoroton: The point I am making is very important. In the vast majority of unfair dismissal cases the admissibility criteria do not apply. There is one category where we expect that it will; namely, in cases of constructive dismissal. I assume that the example of my noble friend Lord Wedderburn was one in which there was unlawful deduction of wages and the employer had not sought to dismiss.
If he explicitly dismissed, there would be no problem anyway. If, however, there had not been a dismissal and the issue was whether it was a constructive dismissal, the point that is being made by this is that in addition to collecting the 19 witness statements—to which my noble friend referred—the employee might sensibly write a letter to the employer raising the problem. In that case, provided that 28 days have gone by since he sent the Step 1 letter, he would not be debarred from making the unfair dismissal point.
We believe that there is good reason to apply the time limits to these cases. First, in many instances, the sending of a Step 1 letter, as I have described, should be the first time the employer is acquainted with the employee's complaint. We should give the parties the opportunity to sort out their problems before a tribunal application is made. In our judgment, as we have said in an earlier amendment, 28 days is the right length of time for this. Secondly, I see no justification
There is another problem with the approach suggested in this amendment. It rests on the need for the tribunal to reach speedy assessments of the strength of the employee's case. I cannot see how that can be done quickly without a preliminary hearing to assess the employer's response. In fact, it might take more than 28 days to reach such difficult decisions. If so, this approach might lead to greater delays in accessing the tribunals. I hope that in the light of those comments, my noble friend will consider withdrawing his amendment.
"(4A) Nothing in subsection (3)(b) or (4)(b) shall affect a complaint in respect of which the employer is in the view of the tribunal at the time of communication of the complaint likely to have acted unfairly under the provisions of section 98(2), (4) or (5) of the Employment Rights Act 1996 (c. 18) (general)."
5.15 p.m.
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