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Lord Falconer of Thoroton: I hope that I can put my noble friends' minds at rest. It is not the intention of the Government or the Bill that the secretary should be able to take the final decision on whether a complaint is barred by Clause 33. Ultimately, that must be for the tribunal to decide, although it may be a decision which a chairman can take on behalf of the tribunal.
Where the tribunal—whether sitting together or via a chairman—makes such a decision, we do not envisage that an appeal could not be made to the employment appeal tribunal. We believe that it should be appealable to that tribunal on the usual grounds. It would obviously be absurd if a special procedure were required in relation to that.
Equally, in certain circumstances, we do not consider that it would be wrong for a tribunal or the secretary to a tribunal to write to an applicant and point out that his or her application may be in breach of Clause 33 or that it does not comply with Clause 33. Where that type of advice is given, we do not believe that it would be necessary for the secretary to refer to the chairman or to the tribunal. However, I accept the basic point underlying the remarks of both my noble friends Lord Wedderburn and Lady Turner that a decision in relation to barring under Clause 33 should be taken by the tribunal.
I also accept in principle the point made by my noble friend Lady Turner in Amendment No. 155 that, where a decision to bar is made, normally one would expect a reason to be given for the barring. It is inconceivable that a reason would not be given in such a circumstance because it is such an important decision. I do not know whether one needs to spell that out in regulations, but I imagine that one does not spell out in regulations that in every single interlocutory or similar application reasons need to be given. In those circumstances, it is simply assumed that a chairman will give reasons. I hope that my noble friends' minds are set at rest by the fact that procedurally the principles that we are adopting in relation to this matter are very similar to those that underline the two amendments.
Lord McCarthy: In that circumstance, can the Minister say why he cannot accept Amendment No. 155 and place this issue on the face of the Bill?
Lord Falconer of Thoroton: I do not believe that it is either appropriate or necessary to do so. Where regulations deal with procedure, which they do in relation to the employment tribunal, it should be dealt with in so far as it is necessary to do so there rather than here.
Lord Wedderburn of Charlton: I understand what my noble and learned friend says. As I understand it, it will be made clear, at least in an amendment of the employment tribunal regulations schedule on the Rules of Procedure, whether they are technically regulations under this section. Obviously, from what he says, I take it that that must mean that there will be some addition; otherwise, under the existing rules that I read out the position of the secretary would be quite absurd. It would suggest that the employee would have a say in whether or not the case should proceed. Obviously, that will not be the case here—the tribunal will decide. I am delighted to hear that. However, I doubt whether that will result in less work for the tribunals and less cost to the respondent. I do not believe that the CBI will be very pleased to hear this.
If the tribunal reaches such a decision—this is the logic of Section 32 as it will be, Clause 33 as it is—the respondent will manifestly have to be told. My noble friend was right—the matter could be subject to an appeal to the employment tribunal. Every time that a prohibition is pronounced under Clause 33, there could be an appeal to the employment appeal tribunal. I am not sure that that is good news to my noble friend
Lord Gladwin, who is, of course, a lay member of the EAT. However, it is good news to me and, as it were, it is good night to the amendment, because I accept the spirit in which my noble and learned friend has addressed it. There will be regulations setting this out and it will be made clear that reasons will be given. I do not regard this in any sense as being a victory for the amendments. It has just shed a little more light on the situation. We are delighted that advisors who are trying to gear up for this new world of prohibition will have a little more information on which to begin drawing up their agenda. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 154:
- Page 38, line 15, at end insert—
The noble Lord said: The amendment states that, where a complaint could give rise to the remedy of interim relief, Clause 33 should not apply to it.
Interim relief is an important remedy. It is exceptional, because the employment tribunal has the power to maintain an applicant in his or her employment pending the hearing of an unfair dismissal claim. I immediately say that that could therefore apply to a case that is an unfair dismissal claim on the one hand, including a grievance claim on the other.
It arises if the applicant is making a claim. The reason for dismissal could be related to trade union membership or activities, a position as a health or safety employee representative, including working time purposes, a position as a trustee of an occupational pension scheme, the making of a protected disclosure or the exercise of rights relating to trade union recognition and de-recognition. It also applies now—after the 1999 Act—to cases that raise the exercise of the right to be accompanied at a grievance or disciplinary proceeding. Section 12 of the 1999 Act makes the question particularly relevant here, because it applies to grievances as well as discipline.
If a worker claims that interim relief could apply and he is processing a grievance at the same time, the tribunal has to make certain other requirements. It has to be certified by relevant persons as being a suitable case and the tribunal must look at it quickly because it must be lodged within seven days. That is much quicker than most of the time limits which the Government consider appropriate in regard to the clause.
The tribunal can then make an interim order, either of reinstatement or re-engagement—I take the two together—and, if the employer does not attend the hearing or refused reinstatement or re-employment, the tribunal can make an order for the interim continuation of a contract of employment. That is a very important jurisdiction and it can arise in regard to
In Committee in another place, the Minister, Mr Johnson, said on 18 December:
The problem of interim relief has been highlighted by the recent case of Parkins v Sodexho Ltd [2002] IRLR 109. In that case, Mr Parkins was an employee of Sodexho, when he was summarily dismissed. He claimed that he had been unfairly dismissed because he complained about a health and safety matter—which does happen—because he had made what is now called a "protected disclosure", and that he had been dismissed in breach of contract as well as improperly as a health and safety representative.
The question of interim relief arose and the EAT—to whom the matter had to be appealed because the tribunal considered there was no power to grant interim relief—in effect held that that was not correct, although on the facts, it remitted the case to another tribunal to decide certain issues that arose. The case has already given rise to a considerable amount of comment in regard to the application of interim relief, especially in connection with protected disclosures. They are the subject of a later amendment, which was tabled by my noble friend Lord Borrie, to which we shall come. It is, therefore, a matter of some importance to make it clear that where interim relief—that important remedy for workers who are unjustly treated on the list of grounds that I have set out—can be given the remedy of relief on the complaint that they wish to bring in regard to a dismissal in connection with which a grievance procedure might have to be operated under Clause 33. In that case, we submit that the prohibition should not apply. I beg to move.
Lord Falconer of Thoroton: This important amendment gives me an opportunity to explain the position. It concerns the interaction between the admissibility regime and the established system of interim relief. Speed is of the essence where interim
As I have already made clear, with one exception, we do not intend the admissibility regime to apply to cases of unfair dismissal. Because the admissibility regime will not generally apply to unfair dismissal cases, it would not interfere with the system of interim relief. The exception to that rule concerns the case of constructive dismissal. In relation to the decided case in the employment appeal tribunal, to which my noble friend Lord Wedderburn referred in his argument, there will be no impact at all because the admissibility criteria would not apply to it. That is because, as I understood from the extract my noble friend read from the case, it was not a constructive dismissal case but a summary dismissal case. Therefore, there would be no problem.
However, we recognise that the issue my noble friend raises in connection with interim relief has significance in relation to the constructive dismissal case. In devising our detailed proposals on the application of the admissibility regime to constructive dismissal cases, we will be mindful to avoid limiting access to interim relief in those particular cases, which are limited in number, where it is currently potentially available. This means that we will consider making special provision for this category of case when drafting the regulations under this clause.
I hope that in the light of those reassurances my noble friend will feel much reassured.
"(6C) This section has no application to a complaint by reason of which the tribunal does or could entertain an application for interim relief."
"We might want to allow for a delay in the disciplinary procedure should an employee under notices of dismissal make an application to a tribunal for interim relief while the procedure is taking place".—[Official Report, Commons Standing Committee F, 18/12/01; col. 181.]
I expect my noble and learned friend to say that in regard to disciplinary procedure, regulations, which are the delphic fount of all wisdom under this Bill, will tell us that something like that might happen. However, it is important to know whether a similar provision will be made in regard to the application of Clause 33. No one seems to have told the Minister in another place that the problem could arise where a disciplinary dismissal also gave rise to a complaint under a grievance procedure. I read in a previous sitting the paragraph in the ACAS code that points that out. ACAS knows very well that grievances and disciplinary procedures are not mutually exclusive.
6 p.m.
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