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Lord Razzall: Before the Minister replies, could he perhaps also answer the question I would like to put, which may be the same question in similar form? If an employee has failed to comply with the statutory procedures under Clause 31 his or her award will be reduced, and under Clause 33 he or she will be prevented from making a claim. Is the Minister saying that if employees are required to raise grievances internally, have failed to comply with the statutory procedures but detriment thereafter ensues, under no circumstances will those clauses be applied against that employee?
Lord McIntosh of Haringey: I did not say, "prevented from making a claim". This is a common misunderstanding. There is no possibility of preventing people from making a claim. We say that when the admissibility criteria apply there has to be a letter and there has to be a wait of 28 days. Once those very minimal requirements have been gone through there is no question of preventing anybody from making a claim. Indeed, if a claim is made which is not
admissible, that can be corrected by overcoming the objections to the claim and the claim can then be made subsequently.
Lord Wedderburn of Charlton: I repeat my question to the Minister: which section?
Lord McIntosh of Haringey: I said that currently there is protection against detrimental treatment on a range of specific grounds, mainly set out in the 1996 Act. I do not have the facilities to go back to all legislation. On that matter I will have to write to the noble Lord, Lord Wedderburn.
Lord Wedderburn of Charlton: I appreciate that but I must protest that the Government come to this Committee and reject an amendment which is quite specific and which adds a normal remedy for workers who are victimised. The Minister says there are remedies already. When I ask him where they are, he does not tell me; he is not prepared for it. He does not come with a section, he does not come with an Act. I am not asking him to survey hundreds of years of legislation. He mentioned the 1996 Act; I assume he knew where to find it.
Lord McIntosh of Haringey: What I said was that currently there is protection against detrimental treatment on a range of specific grounds mainly set out in the 1996 Act, but not necessarily only in the 1996 Act. The noble Lord, Lord Wedderburn of Charlton, is entitled to an answer, but I cannot give him an answer off the cuff, and I have offered to write to him.
Lord Wedderburn of Charlton: It is not a question of giving an answer off the cuff; it is central to the argument. I must protest again. I am sorry. The Minister looks bored and fed up. I can well believe he is fed up because he has made a case which he cannot substantiate. If one says to workers "You have a remedy already", one must tell them, or at least their advisers, where it is. The Minister says it might be in some other Act. Which other Act? If it is in the 1996 Act, which section?
Lord Razzall: May I dare to suggest that the Minister should reflect on what the noble Lord, Lord Wedderburn of Charlton, has said, perhaps before we get to Report stage, and provide us with the answer to the question the noble Lord has put and in the meantime the amendment should be withdrawn?
Lord McIntosh of Haringey: Before the amendment is withdrawn, I have undertaken to write to the noble Lord, Lord Wedderburn of Charlton, already. I will copy the letter to everyone else who has taken part in the Committee, and my letter will include a reflection on the matters that I am asked to reflect on.
Baroness Turner of Camden: Before the Minister sits down, would he perhaps look again at the two new Sections 47D and 104C that we are proposing? The Minister said that he sees nothing wrong with the drafting of the new sections, nor do I get the impression from him that he is anything other than
sympathetic to what I was saying. I would be pleased if he would be good enough to look at these two new sections again before Report to see whether any steps can be taken to meet the arguments that we have put.
Lord McIntosh of Haringey: Certainly, and if the noble Baroness, Lady Turner of Camden, would like us to have a meeting with Professor Bob Hepple on the subject, we would be happy to do that as well.
Lord Razzall: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4 p.m.
Lord McCarthy moved Amendment No. 168:
- After Clause 33, insert the following new clause—
The noble Lord said: I am in a hinterland between Clause 33 and Clause 34. Clause 33 has gone, but not quite gone.
This amendment is another example of what they call "a probing amendment" in this place. I did not know about probing amendments until I came to this place. If I understand what they are for, they are where one does not know any more than the Government seem to know why something has been done or not done. Without knowing what the answer will be, because one is puzzled and perplexed one tables what is called a "probing" amendment.
What we are probing is the absence of ACAS in this new system. The Government say—and I want to quote from them subsequently in the Government response to Routes to Resolution—that one of their central objectives is the promoting of conciliation. After all, conciliation comes before a hearing and is the way in which, as the Government say, a very substantial number of settlements are in fact arrived at, or workers abandon their claims for various reasons. The Government want to promote conciliation. Of course they do; it is much cheaper than hearings, and it can work quicker than hearings. It might also provide better remedies than hearings. It may after all, if it works quickly enough, provide re-employment or reinstatement. One does not know what conciliation can do. The Government want to promote conciliation, I see that.
Why, therefore, is it absent from this period when the 28 days run? If one looks at the words of the amendment, noble Lords will see what we propose:
We have some guidance in that regard. On 8th December, the Minister in another place said:
The Government's response to Routes to Resolution contains a strange page and a bit about the promotion of conciliation. One fundamentally disagrees with almost every part of that. It says, for example, that the ability to have a fixed period of conciliation and a period when there is not conciliation will promote conciliation. I cannot see why that is. It states that as a form of conciliation, which it is not,
The interesting thing is what the response says about conciliation as it sees it. It admits that three-quarters of tribunal claims are settled or withdrawn before a tribunal hearing takes place—presumably, it gives conciliation credit for a significant part of that. It goes on:
"AVAILABILITY OF ACAS CONCILIATION
Where a complaint is communicated to a tribunal but section 33(2), (3) or (4) prohibits its presentation to that tribunal, then notwithstanding that section, the communication shall be treated as an application falling within section 19 of the Employment Tribunals Act 1996 (c. 17) (conciliation procedure), and regulations shall provide for a copy to be sent to a conciliation officer together with such other information as will assist that officer to bring about a conciliated settlement of the claim, and for the Secretary of the tribunal to send to the applicant and the named respondent a notice of the availability of the services of a conciliation officer."
"Where a complaint is communicated to a tribunal but section 33(2), (3) or (4) prohibits its presentation to that tribunal"—
we are in the dead period—then, notwithstanding that section, it states,
"the communication shall be treated as an application falling within Section 19 of the Employment Tribunals Act 1996".
That section authorises ACAS to come in in all other ordinary tribunal cases, after the application has been sent. The parties are told that ACAS is sent a copy and that there is a possibility of conciliation. They are told what it does and if applicants say that they want to get into the conciliation process, that is it. They get a telephone call and the process begins. Why is that taken up during this period, if the aim is to promote settlements?
"The applicant should be required to complete at least one step of the procedure, the sending of the written complaint, before the tribunal can admit an application. In addition, a period—say, four weeks—should elapse after the step one letter".—[Official Report, Commons Standing Committee F, 18/12/01; col. 195.]
At that point, I thought that the Minister would go on to talk about conciliation, but he continued,
"has been sent before an application can be admitted".
He went on to explain the reason for that. It is that that,
"ensures that the parties have time to begin discussing the grievance, which should ensure that the grievance is at least aired and clarified before an application is made. If the dialogue proved productive, I would expect many potential applicants to defer submitting their tribunal application beyond the end of set period while the procedure was used more fully".
Why can they not have help during that period? After all, ACAS specialises in the discussion, elaboration and clarification of agreements. It specialises in trying to get the parties to see that they have some area in common and in narrowing the area of difference and not promoting a specific settlement, because that would be mediation. It hopes that the parties will come to see that there are some grounds for a meeting or that one side or another wants to give in. That is what it is all about. Why should that not happen during this period if the Government want to promote a settlement that is not a settlement using the tribunal?
"if you broaden the scope of compromised agreements you promote conciliation".
You do not; you provide a substitute for conciliation. It continues:
"We should promote the use of alternative dispute resolutions",
but it says nothing further about that.
"In many of these cases, the tribunal would have wasted time and effort on these claims, which would have been better spent on claims which do require a determination".
I suggest that that sentence is absolute nonsense. It asserts that the tribunal would have wasted time, but that is not the case because literally, this arises before it gets to a tribunal. If anybody was wasting time, it would be ACAS. Perhaps they really meant to say, "In many of these cases, ACAS will have wasted time", or, "In many of these cases, the tribunal might have wasted time". How do they know? What is the evidence that tribunals or ACAS are going around wasting time, which would have been better spent on cases that require a determination. I do not think that they understand the first thing about conciliation or that they appreciate the way it works. I do not think that the people who wrote the government response know the difference between what happens when the parties get together and argue (that is one process), when ACAS comes in and conciliates (that is another process) and at the appearance at a hearing (that is a third process). Those are discrete and different processes and they are the reason why, if it works, people get something out of the system. My question is a simple one: during this period, when you condemn inaction for 28 days unless the parties can reach a settlement with themselves, why do you exclude a process that most people would say can solve most of the disputes? I beg to move.
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