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Lord Falconer of Thoroton: As I understand the amendment, subsection (6A) is saying that where the employer has not completed the statutory procedure, he shall not be allowed to enter an appearance and defend the proceeding. I am not sure whether subsection (6B) is intended to apply only where he has not completed the statutory procedure.
Lord Wedderburn of Charlton: Yes, where (6A) applies.
Lord Falconer of Thoroton: Therefore, it is not a situation which would apply only where he has failed to enter an appearance. There also has to be the failure to comply with the procedure.
Lord Wedderburn of Charlton: My noble and learned friend is right to the extent that the new subsection (6B) begins where subsection (6A) applies. Subsection (6A) applies in the circumstances set out.
Lord Falconer of Thoroton: Namely, the failure by the employer to complete the procedure. The way in which my noble friend puts it is that this would be "even-handed evil". He says that if the employee is debarred where he has not completed the procedure, so should the employer be debarred by parity of
reasoning. Parity of reasoning would equal not being able to defend, just as the employee cannot bring the proceedings.There are two answers to that. First, the employee is not debarred where he has failed to complete the procedure. He is debarred only where he has failed to send the Step 1 letter and wait for the 28 days to pass. The way it has been put in argument is "complete the procedure", so it would not be even–handed at all. Secondly, we do not believe in any event that it would be appropriate to debar the employer from defending because the purpose of the tribunal is to deal with disputes that have not been resolved. The purpose of Clause 33 is to promote resolution of these disputes by, where there is a grievance, the employee at least beginning the grievance procedure.
We do not accept the basic detailed premise because completion is not the same as simply Step 1 and the 28-day period. Secondly, in any event we do not think there is parity in the way that my noble friend puts his case. In the light of that, I would ask my noble friend to consider withdrawing both amendments.
Lord Wedderburn of Charlton: I shall, of course, since the Government object, have no option but to withdraw the amendments. However, my noble and learned friend points out a way in which the amendment should have been longer. We have tried to keep our amendments as short as possible—like our debates. It is true that it would be better to say that where an employer has not complied with the procedure, and where a certain period has passed, the Government would have 28 days; or where they have not complied with it, or after whatever period has passed, the employer should not be allowed to defend.
It seemed to me that my noble and learned friend accepted that if we had got it right in terms of the delay period, there would be a parallel.
Lord Falconer of Thoroton: No, I did not. I again failed to make myself clear. First, I made the point about completion of procedure as opposed to one step only. Even if that point had been dealt with, the proposal would not be the right way to deal with the problem. Those were my two separate points.
Lord Wedderburn of Charlton: I concentrate on the second argument. The first point is a matter of wording and the right time period. If we had got that right, it still would not be appropriate. Why is that? It would not be appropriate because then our amendment would be precise and even-handed. If you stop the worker from bringing a case, within which is the proposition that you stop the worker from winning his case because he does not do what you want, you will not stop the employer from bringing his case because it does not do what you want. That is all there is to it. The words of the amendment could no doubt be improved and I am very grateful to the noble and learned Lord for improving them.
The second argument he deploys is surely little less than bizarre, except—and I have to say this and I hope that my noble friends will note it—it be on the
philosophy of Part 3 of the Bill. I refer to the fact that workers will suffer and employers will not because there is a desperate need to prove to somebody—whether it is the CBI, I do not know—all these dreadful hearings at employment tribunals are going to be stopped. That is what lies behind it, and the only way you can stop that is by being unfair to workers. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 153:
- Page 38, line 15, at end insert—
The noble Lord said: In moving Amendment No. 153, I speak also to Amendment No. 155 to which my noble friend Lady Turner of Camden in particular will also speak.
Amendment No. 153 is in our view very important. I am advised by those who are most experienced in the administration of employment tribunals that it is a matter which already causes some concern even as the procedure and practice of tribunals stand now.
It raises this point. When a worker communicates—in the future, I suppose, on the necessary form, or at the moment in any sort of writing—with a tribunal office in his locality, or as near as he can get to his locality, the decision about what to do with his originating application is often taken by the secretary of the local tribunal.
I would like to read the dominant rule in Schedule 1 of the Employment Tribunals Regulations which is of particular importance here. It is Rule 1(3):
That cannot possibly be the situation in regard to the prohibition in Clause 33 against presenting a complaint because that does not operate with the proviso unless the applicant wishes in writing to proceed with it. The prohibition is absolute within the terms of Clause 33(2), (3) and (4).
Practice at the moment has given rise to a certain amount of concern amongst a number of tribunal chairmen about—to put it neutrally—the burdens
As I understand it, this will not at the moment be improved by the intervention of any legal officer—a strange being introduced previously in earlier legislation by this Government into employment tribunal practice. We have not heard much about legal officers. One question I want to ask of the noble and learned Lord is: how many legal officers are there and what are they doing? Will they play a role in communicating the fact that the application or complaint is prohibited from being accepted?
The amendment refers to the secretary forming an opinion—and he is bound to be the first person who forms an opinion—that the complaint or originating application is in breach of Section 33. It may be that my noble and learned friend does not like the words,
In that event, some very complex, difficult questions of law and fact—mixed questions of law and fact—will arise. Of course, we cannot tell exactly what the evidence will be because we do not know what the new forms are going to be like. This shows the interaction between Clause 25 and Clause 33. If we knew what the new form was going to be like, we could say, "Well, if they see he has answered the question this way or that way, they might have an initial view"—"they" being first of all the secretary and then, I imagine, inevitably, the chairman. Someone is going to have to speak on behalf of the tribunal to say, "You cannot enter the doors of this tribunal with this complaint".
No more serious prohibition of access to justice can be imagined. I do not care whether the condition is sending a letter or sending a copy of the letter or standing on one's head! Whatever the condition is, it is a prohibition on access to justice. Therefore, in our view, the decision should be that at least of the chairman. We have not asked for a pre-hearing review in all such cases, although my prediction is—and my noble and learned friend will know this very well; he has been instructed in simple cases of this sort more times than he has had breakfast—if you get instructed in such a case and you are told you cannot present your
It might be a little fairer, at the very minimum, if the person who took this all important decision about whether the portals of justice are open or closed were at least the legally qualified chairman of the tribunal itself. It is simply in quest of that fairness of procedure that this Amendment No. 153 is moved. I beg to move.
Baroness Turner of Camden: An amendment to which I had intended to speak—Amendment No. 155—is grouped with Amendment No. 153 because they deal with a very similar issue. As we know—we have been discussing it all afternoon—Clause 33 purports to set out the conditions under which an employee may not present his claim to a tribunal. Amendment No. 155 is very simple. It requires that where the relevant subsections apply and the applicant is not permitted to present a complaint, the chairman of the tribunal must notify the claimant and also set out the reasons for the decision.
It hardly needs to be said that a person who has got as far as attempting to put his case to a tribunal is very seriously committed and very seriously concerned. Such a decision is not taken lightly. In an earlier debate, the noble Baroness, Lady Gardner, who I am sorry to see is not in her place this afternoon, said that sometimes people do not turn up. However, I am sure that the noble Baroness would agree that that is comparatively rare. Generally, people are most concerned about their case, sometimes to the point of being totally obsessive about it. That being so, it surely follows that, if they are not permitted to have their day in court, individuals should be entitled to have the reasons set out and for that to be done authoritatively. In my opinion, the appropriate person to do so is the chairman. I hope that the amendment will commend itself to the Minister.
"( ) In the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.I. 2001/1171) in Schedule 1, after rule 6 there shall be inserted—
"(6A) Where the Secretary is of opinion that the originating application or other complaint is in breach of section 33 of the Employment Act 2002, he shall give notice to the applicant of this opinion and the reasons for it only after obtaining a decision of the chairman that his opinion is correct.""
"Where the secretary is of opinion that the originating application does not seek, or on the facts stated therein, cannot entitle the applicant to a relief which a tribunal has power to give, he may give notice to that effect to the applicant stating the reasons for his opinion and informing him that the application will not be registered unless he states in writing that he wishes to proceed with it".
So what the secretary can do at the moment is reply to the communication which purports to be presentation of a complaint and say, "It seems to me that this is not something that you ought to press and I am not going to register it for the moment". But he has to do so if the applicant then states in writing that he wishes to proceed with it.
"in breach of section 33".
It should perhaps read,
"is prohibited under section 33".
Then the secretary gives notice to the applicant of that opinion only after obtaining the decision of the chairman that he is correct. The amendment states that for a very good reason. We are discussing a communication which says that a tribunal has no jurisdiction to accept the presentation of a particular complaint. Perhaps my noble and learned friend will clarify the following. If this is not a matter of jurisdiction, it is at any rate a matter of enforceability. The tribunal is to say to the applicant, "You may have a complaint but it is not enforceable because you cannot present the complaint", which is a materially different way of putting it.
5.45 p.m.
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