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Lord McIntosh of Haringey: There is no question of prohibiting access. We are saying that in order for an application to be admissible it has to pass some very minimal criteria. We are talking about writing a letter and we are talking about waiting 28 days. When there
is a failure to meet the admissibility criteria, there is no debar or prohibition on the employee from applying to the tribunal a second time.
Lord McCarthy: This is why I say that the Government do not answer questions. They never answer questions. The question is a simple one. Why not allow the employee to go to ACAS in the usual way? What damage does it do? Why should he wait 28 days? What assistance would that be? If ACAS cannot solve the matter, he will have to wait 28 days. If the Government want to facilitate settlements, in the name of God why cannot that be put on the face of the Government's Bill?
Lord McIntosh of Haringey: Because we want first to encourage settlements of the kind which nearly all settlements are—that is, settlements between employer and employee—and we want to do that first.
Lord Wedderburn of Charlton: The Government want to promote settlements but in order to do that they do not send the case to the conciliation officer in the normal course of things. Conciliation officers help settlements. Has not the Minister met a few? Has he not talked to them about what they do? Of course they are not present in all settlements, but I am surprised that the Government under-rate the value of ACAS conciliation officers. They are enormously important in promoting settlements. We are trying to help the Government here. Why are they so resistant?
The Minister must understand that there are people who say that these perfectly reasonable and sensible amendments are resisted because the CBI will not have them. That is what people way. If we are left without any rational argument for rejecting them, we will have to listen to those people more.
Lord McCarthy: We must bring the matter back on Report. We cannot let this go here. I believe that the Government are simply being obstinate. Let them to go ACAS; let them ask ACAS; and let them tell us what ACAS says in particular about this part of the Bill. What do they think the conciliation officer does on the telephone? What do they believe the first question is? The conciliation officer rings an applicant—that is the usual way—and asks, "Where have you got to?" If the applicant says, "We've had a settlement"—God knows the organisation has enough work to do—he says, "Do you think we can help?". No one is getting in the way of domestic settlements; why the hell should they? I urge the Government to think about it, and we shall come back to the issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 169:
- After Clause 33, insert the following new clause—
The noble Lord said: I fully appreciate that Amendment No. 169 is a somewhat technical amendment. It posits a situation where,
An employee alleges that an unlawful act has taken place for which he wants a remedy but he is not able to present the complaint. In the general law, an act which is a breach of duty, in particular under a statute but generally, is capable of being unlawful means for the purposes of a general common law.
This is a complex area but I hope that I may summarise it accurately in the following way. Unlawful acts can be relied upon by a person whose business, trade or employment is interfered with by a person in an action in the High Court, or, indeed, county court, for damages and perhaps even an injunction. In other words, it is not an action in the tribunals but it impacts upon that because here the employee is alleging—by hypothesis, for the moment we assume that it is correct—that it is an unlawful act on the part of the employer. However, he cannot present that to the tribunal. In other words, this is an act by the defendant in respect of which his right is unenforceable. Whether he goes a second time is not within the purview of the argument. I am talking about a case where he does not. The Minister's confidence that every worker will go a second time is perhaps an important message to trades union advisers. However, in this case there is, by hypothesis, an unlawful act which is unenforceable.
Unlawful acts include not only a breach of statute but also a breach of contract. That arises under the Bill since the House of Lords decision in Rookes v Barnard [1964] Appeal Cases 1129. According to Lord Justice Dilhorne in the case of Department of Transport v Williams [1993] in The Times of 7th December in the Court of Appeal, it also includes the breach of any statute.
Here a breach of contract arises if it amounts to a failure to operate the procedures properly because Section 30 of the Act will make it so. It is also a breach of the statute because Schedule 2 and Section 29 require it to be operated. Therefore, we have a case that falls strictly within the doctrine, with an exception. Where the employee suffers damage therefrom, he can sue in tort—that is, "t", "o", "r", "t", which usually gets spelt, but not in Hansard—for
Without going into the very complex case law that governs this point, the essential ambiguity in the law is that the cases do not make it wholly clear whether an unenforceable act of an unlawful kind is still actionable under this doctrine. It is my submission that the better authorities suggest that the action would still lie in the ordinary common law courts. All that the amendment does is to clarify that ambiguity, if there be one, and to state that where the unlawful act is unenforceable, it remains—I quote the amendment—
Lord McIntosh of Haringey: I shall not make a point about the word "prohibition"—my noble friend generously anticipates what I shall say. I will only say that, rather than prohibiting applications on a permanent basis, the proposed regime will apply in ways that will ensure that employees have a second opportunity to make an admissible application, if their first was inadmissible.
The issue is about whether an illegal act somehow becomes lawful. Clause 22 is about the circumstances under which employees may have access to the tribunal system. Of course, there have always been conditions limiting access to the tribunal system. Most notably, applications must generally be made within a specific time limit. Clause 33 adds new conditions—it is not a legal question, but a political question. We think that the conditions are both reasonable and proportionate, and we think that they bring significant benefit to both parties in encouraging mutual dialogue before an issue has to go to a tribunal. That is an issue of policy, however, and not an issue of law. The issue of law is that there are already conditions limiting access to the tribunal and Clause 33 adds to them.
However, what Clause 33 does not do is to change the underlying employment rights themselves. When an employer has infringed those rights, that infringement does not of course become lawful simply because the employee has not—or has not yet—been able to challenge the legality of the employer's action before a tribunal.
In that sense, Clause 33 operates in the same way as the existing time limits on making applications to a tribunal. The tribunals can already refuse to accept an application that is out of time. When they do so, an unlawful act does not become lawful as a result, but it means that the employee cannot seek a determination or remedy from the tribunal for the alleged unlawful act. We do not have provisions of this nature that apply to the existing law on the time limits and there is no reason to suppose that they will be necessary in this context either.
Lord Wedderburn of Charlton: I am grateful to the Minister for his reply and for not making too much about our use of the word "prohibited", which is quite accurate, but which he does not like. I make these comments only: the case of two applications is irrelevant. I am concerned with the application. I am not concerned with time-barred claims; limitation of action. Limitation of action is a quite different juridical category. I am not concerned with policy questions, other than making the law clear. I do not understand why this is such a high political issue. I thought it was an issue that arose from the case law, which the Minister has not discussed. I refrain from citing the case law on unenforceable rights. They leave a slight question mark, which is in all the books. I thought that the amendment might clarify the matter. The Government, for reasons I still do not understand, will not have it, but there is nothing to do at this stage but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
"COMPLAINTS PROHIBITION PROVISIONS
(1) Where an employee is prohibited from presenting a complaint to an employment tribunal by reason of section 33, the following provisions shall apply.
(2) A breach of duty or unlawful act under a jurisdiction specified in Schedule 4 by any party named as respondent or otherwise in the complaint, shall constitute and remain, if proved before a court or tribunal, an illegal act or unlawful means for the purposes of any enactment or any rule of law notwithstanding the prohibition."
"an employee is prohibited from presenting a complaint to an employment tribunal by reason of section 33".
In view of what the Minister said, he will not like the word "prohibited" and he may prefer the situation to be described without that word. I cannot think why he does not like the word "prohibited". But under subsections (2), (3) and (4) of Clause 33 as it now is, the employee,
"shall not present a complaint to an employment tribunal".
Therefore, perhaps we can rephrase it with the words "arising in that situation".
"an illegal act or unlawful means for the purposes of any enactment or any rule of law notwithstanding the prohibition".
That is, notwithstanding the fact that the employee cannot present a complaint to the tribunal and enter the doors of its jurisdiction. I beg to move.
4.30 p.m.
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