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Lord Wedderburn of Charlton: My Lords, before my noble friend sits down, did I hear him aright? It is difficult to discuss the new form without seeing at least a skeleton of it. Is he saying that the new form will provide sufficient information for the number of interlocutory order hearings to be reduced by an estimated 25 to 30 per cent? If that is the case, the amount of information provided by the form will surely be quite extensive.
Lord McIntosh of Haringey: My Lords, I did not say interlocutory hearings; I said interlocutory orders—which is a very different thing. An interlocutory order is sending the parties orders for further and better particulars of their case. In other words, it is an inquiry. It is very different from a hearing.
Lord Gladwin of Clee: My Lords, before my noble friend sits down, do I understand him to say that the new ET1 and ET3 forms will be the subject of consultation? I assume that that means consultation with the parties. When will the parties have access to the draft new ET1 and ET3?
Lord McIntosh of Haringey: My Lords, I can answer the first question. Yes, of course, there will be consultation with interested parties. That will include the CBI, the TUC, the Law Society and the tribunal judiciary. As to when that will occur, I do not have the information now. If I can get hold of it, as soon as I do so I will write to the noble Lord and others who have taken part in this debate.
Lord McCarthy: My Lords, I must be very careful what I say. I find the noble Lord's speech alarmist—it alarms me. In the first place, he says that at some time in the future the application forms will become compulsory. Shall I tell him why we do not want them to be compulsory? It puts people off.
At the moment, you can send a postcard or a letter. I know that the process goes on and the applicant is sent a form; and may be sent another form, and another. Of course that is the case. But if you want to encourage people to come into the system, if the idea is one of "catchee monkey"—to encourage people who may be getting fed up with their employers giving them the same old answer—they should not be discouraged. That is why we do not like the 28-day provision. In a way, it is the most discouraging aspect of the Bill. When you are told that you have to fill in the form and the whole process becomes compulsory, people are discouraged. Employers may say to people: "Of course, you know you will have to fill a form in. God knows how many forms you will have to fill in. They will all be compulsory". These are the things that we do not like. A few weeks ago we received the answer that this would not be compulsory. We are now told that, after a time, it will be. That is slightly alarmist.
Nobody would ever say that the dear old ET1 was perfect, but nobody complained about it. People found a way of working it. It went on for many years and it seemed to work. I do not suppose that the Minister or I would disagree that it is not the kind of thing that WIRS would put out, because they are professional and have tick-off sheets and all kinds of damned things. It takes 45 minutes to fill in a WIRS form. ET1 is not perfect, but it seems to work. If the Government want to change it, they ought to do some research before introducing their form on whether it works and whether people understand it. Nothing like that is suggested here. I find that alarmist.
Then the Minister says that there are the steps relating to the new statutory procedures, some of which are outside the restrictions that we will put into our amendment. I shall do some research, but I am certain that everything in our amendment was said or agreed to by Ministers, yet now they tell us that they want to put in something that is outside our amendment. They have not told us what it is, but it is outside our amendment. I find that alarmist.
Then the Minister says that we are going to get more information. That is important. It is possible to ask for so much information that everybody gets fed up. The idea may be to get so much information that we never need to have a hearing because the tribunal can get together and make a pre-hearing assessment. Everything would already be down on paper. The hearing would become a mere formality, because we would have got so much information out of the parties. Employers are better able to fill in the information because they have their organisation. On the other side there is just a man at his kitchen table. The idea of using the application form as a way of getting enough information to take a decision—that seems to be what was being said—is particularly alarmist.
Finally, and most alarmist of all, the noble Lord, Lord Gladwin, may have misremembered or I may have misremembered. I thought that the Government had said that they would give us a sight of the form. I do not give a damn if they did not say that, because they ought to give us a sight of the form anyway. I do not give a damn if they say that they have never done it
before. What about the resources of the Parliamentary Question? We have used the resources of the Parliamentary Question quite effectively on the Bill. We ask the Government what they are going to put on the form. Suppose we were to ask them tomorrow. They would say that they had not decided yet. Suppose we kept on asking and used not just Oral Questions, when Ministers are up for only a minute or two, but Written Questions. Could not Ministers reply to a Written Question by giving us the words on the form? That is a good idea. Meanwhile, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 26 [Determination without a hearing]:
3.15 p.m.
Baroness Miller of Hendon moved Amendment No. 28:
- Page 34, line 33, at end "if it is agreed by the parties to the proceedings"
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 29 and 32. Clauses 26 and 28 deal with two aspects of tribunal procedure—the determination of a case without a hearing in Clause 26 and pre-hearing reviews in Clause 28. I do not often comment on purely drafting matters, but I find it somewhat surprising that these two closely connected clauses are not juxtaposed, but are instead separated by Clause 27.
Amendment No. 28 would amplify the power of the tribunal to determine proceedings without a hearing. There is ample precedent for such a procedure in planning appeals, for example. We certainly do not dissent from the use of such procedure to save time, trouble and expense in employment tribunals cases, in which the amounts involved are frequently comparatively small or the issues involved are often very simple. However, no one should be deprived by the stroke of a tribunal chairman's pen of his day in court and the elementary human right to face his opponent. Hence, I have proposed that a hearing shall be dispensed with only with the consent of both parties.
When this matter was discussed in Grand Committee, the Minister pointed out that the Explanatory Notes dealt with the matter at least to his satisfaction. The notes state:
- "It is intended that the circumstances in which a case may be determined in this way would be where both parties have given their consent by signing a form . . . following independent advice".
I do not think it is sufficient for this important provision limiting a party's right to an oral hearing to be defined simply in a piece of secondary legislation. There is nothing to prevent a less benign Secretary of State from later modifying that regulation by
restricting oral hearings to cases above a certain monetary value or within some other criterion. It is true that any modification of the regulation which the Government say they now propose would be subject to parliamentary scrutiny, but, as we all know, secondary legislation receives only a perfunctory examination and cannot be amended. It can be either accepted or rejected, but that is all. I do not believe that the Minister should insist that this safeguard should not be written into the Bill but left to regulation. After all, the amendment simply includes in the Act the Government's stated intention.I turn to Amendment No. 29, which gives the tribunal power to adjudicate on a case in which one party has failed without reasonable excuse to attend the hearing. I ask your Lordships to note the words "without reasonable excuse". In Grand Committee, in reply to the same amendment, the Minister devoted a great part of his reply to a situation in which a party has, in his words,
- "failed to engage in the process in any way".—[Official Report, 18/3/02; col. CWH 168.]
In appropriate circumstances—namely, in the absence of a reasonable excuse—the tribunal should have the power to determine the case in favour of the party who has taken the trouble to turn up. It is all too easy for a party either to launch a claim or to file a defence with the single malicious motive of inconveniencing the other party, or a party who has been involved in a case may simply think better of it and fail to attend the hearing. The point is that if the tribunal cannot arrive at the obvious conclusion that the absence of the defaulting party is an admission of the other side's case, then the party who has attended will be put to the further trouble and expense of going through his whole case before the tribunal. What is to be the conclusion of such a pantomime? Is the tribunal, having listened to the outline of the case and perhaps to the evidence, going to act as the absent party's representative and dismiss the claim or defence? Of course that is not going to happen.
In arguing against this amendment, the Minister acknowledged that illness or absence abroad might be "a reasonable excuse". But then he said that strong business reasons on the part of the employer, especially in a small business, were unlikely to be accepted as a reasonable excuse. With all due respect to the Minister, I believe that the reasonableness of an excuse should be a matter for the tribunal to decide on a case-by-case basis. I do not think that it should be for the Minister to pre-empt what the decision should be in every case.
The Act and the regulation do not indicate what the tribunal is to do if one party fails to turn up, perhaps after several adjournments causing trouble, expense and waste of time or delay to the other side. The Minister said:
- "There is no precedent for the determination of a case without the consideration of any evidence whatever".—[Official Report, 18/3/02; col. CWH 168.]
Judges in civil cases can and do determine a case in the absence of one of the parties and are assisted by the written documents, as will be the tribunal as a result of the documents that have to be provided to it. There is no reason why a party who has respected the tribunal by arriving at the hearing with his witnesses and perhaps with lawyers or trade union advisers should have to go through the whole procedure of proving a case that the other party's absence implies is no longer disputed.
I turn to Amendment No. 32. Clause 28 provides for a pre-hearing review of cases. That is an excellent procedure adopted from the civil courts. It can save a great deal of time and trouble by ensuring that the issues are all clarified and that each party is under no misunderstanding as to what evidence he is expected to produce, what disclosure he is required to make to the other side in advance of the hearing and, not least of all, so that a judgment can be made as to the probable length of the hearing.
But there is another power which it is desirable that the tribunal should have at this relatively early stage and when the costs, time and effort that go into preparing a case have not yet been incurred; that is, when it is apparent to the tribunal, on looking at the papers before it, that the case of one or other party is absolutely untenable. I agree with what the Minister told the Committee when he said that,
- "we do not want tribunals . . . to hear evidence at pre-hearing reviews".—[Official Report, 18/3/02; col. CWH 169.]
The analogy is the Civil Practice Rule 24 when the court has power to give summary judgment for a plaintiff when the defence offered by the defendant, even assuming that all the facts alleged by him are true, is not a defence in law. Noble Lords will recall that what we are discussing here is not merely an amendment to this present Employment Bill with its limited application to paternity leave and pay and adoption leave and pay. Clause 28 is an amendment to the whole of the Employment Tribunals Act 1996
which affects the procedure of every employment tribunal in every kind of case, not merely those brought under this Bill.I shall mention a couple of exaggerated situations to try to show what I have in mind. Let us imagine a disgruntled employee who shoots the managing director of the firm which employs him, sets its premises on fire, and drives off in one of its vehicles which he then for some reason deliberately crashes, for all of which actions he is sent to prison. Is it seriously suggested that an employer should have to go through the whole rigmarole of defending proceedings for wrongful dismissal? To be even-handed, let us imagine that an employer's defence to a claim is that he has diplomatic immunity and is exempt from the jurisdiction of the tribunal.
Of course, I accept that those are totally exaggerated situations but they illustrate the fact that in some rare cases there may be valid and reasonable grounds to dismiss a claim or defence out of hand. The civil courts occasionally dismiss claims on the grounds that they show no reasonable cause of action, and dismiss them as obviously invalid. Only this morning, I reminded noble Lords that the Minister told the other place that tribunals should follow civil procedure wherever possible. I urge the Minister to accept the amendment or at least to consider it. It would make matters much easier and cheaper in these very rare cases. I beg to move.
3.30 p.m.
Lord Sainsbury of Turville: My Lords, I shall take each of the amendments in turn because they deal with slightly different issues.
I start with Amendment No. 28. We return to this question once more. I had hoped that my explanations in Committee had satisfied the noble Baroness as to our intentions with regard to the clause, but I am happy to offer further reassurance. It is the Government's intention, as has already been stated both in this House and in another place, that both parties should consent in writing before the tribunal can proceed with a determination without a hearing. That is clearly laid out in the Explanatory Notes accompanying the Bill.
If we were to accept the amendment, however, there would be no flexibility in the system whatever for one party to withdraw his or her consent and for a hearing still to go ahead. It might seem to the noble Baroness that there are no such circumstances that might be desirable but I would like to explain the situation. If the clause were to be implemented with the amendment, the tribunal would be unable to deal with cases where one party withdrew his or her consent at the last moment for tactical reasons. If that were to happen, under the amendment tribunals would be unable to proceed with the determination as planned and would have to schedule a full hearing, which, given the pressures on the system, could be some weeks away. All the while, the other party, who is genuinely seeking a determination, incurs costs and suffers stress. If we were to accept the amendment, no reasons
for withdrawal of consent would have to be given—a party could simply use the provision as a delaying tactic, perhaps hoping that the other party would give up his claim or defence in the face of such a delay.It is important that parties should consent to a determination without a hearing—on that we are agreed. Neither party should be able to force the other into such a determination if that is not desirable. However, the parties' right to a fair trial must be protected. If a party gives his or her consent and subsequently—in good time before the determination—decides that a full hearing would be preferable because, for example, circumstances surrounding the case had changed, it is reasonable for a full hearing to be scheduled. However, if the consent is withdrawn at the last moment and without good reason, we believe that the tribunal should have the discretion to decide whether or not to continue with the determination as planned. That does not, by any means, indicate that the regulations will be drawn up to allow for the withdrawal of consent to become a regular occurrence, but there should be sufficient flexibility within the regulations to ensure that the right to a fair trial is protected but also that parties cannot readily abuse the system by withdrawing their consent late in the day. Such detail is, in our opinion, better placed in the regulations than on the face of the Bill.
I now turn to Amendment No. 29. Again, I am sorry that I was not able to persuade the noble Baroness in Committee that she should withdraw that amendment. I think that we would all agree that it is undesirable to have hearings that one party fails to attend with little or no notice and no reasonable excuse. The amendment seeks to have the tribunal automatically find against a party, without the hearing of any evidence or the consideration of any submissions, where the tribunal does not judge a party's non-attendance to be because of a reasonable excuse. That goes even further than the current procedure for handling uncontested cases, where the applicant must still appear before the tribunal and have the evidence considered although the would-be respondent has never engaged in the defence of the claim.
Moreover, once the provisions in the clause have been implemented, the applicant will also be able to ask that the claim be determined without a hearing through paper submissions. There will, crucially, always be some consideration of the merits of the case before a determination is made.
It would be unprecedented for an employment tribunal to determine a claim without any consideration of its merits. I stress that there is no precedent in employment tribunals for that. I do not believe that any comparison with a civil court, where a case is dismissed because there is no legal justification for it, can be made with the matter that we are discussing here.
As I said, it would be unprecedented for an employment tribunal to determine a claim without any consideration of the merits. It is, at best, a strange concept that a party should be deemed guilty in his
absence without any consideration of the facts of the claim which he either submitted or had submitted against him.Let us take, for example, the small-business owner who, for what he considers to be good business reasons, fails to attend a hearing. Under this amendment, if a tribunal were not to agree that his reasons were reasonable, it would find for the applicant without looking into his case at all. I hope that noble Lords will agree that the determination of a claim without any consideration of the merits of the case is undesirable.
I now turn to Amendment No. 32. Again, a similar amendment was tabled in Grand Committee. The amendment requires tribunals to dismiss proceedings unless they have a reasonable prospect of success. As I said in Grand Committee, that goes too far. It would allow no room for use of the existing deposit procedure, which is still intended to be the main weapon against cases that appear to have no reasonable prospect of success. Striking out cases is intended to be used only in relation to hopeless cases. Again, to take the somewhat Byzantine example given by the noble Baroness, I believe that such a case could be seen to come under the category of "unreasonable" or "vexatious", and so on. Therefore, I do not believe that a change is required here.
Nor do we want tribunals to have the power to hear evidence at pre-hearing reviews. Such reviews are intended to be relatively speedy, based on consideration of the contents of the originating application and notice of appearance, any representations in writing and any oral argument advanced by the party. The review would take longer if evidence had to be heard, thereby making it more like an ordinary hearing. On the basis of the arguments that I have given, I hope that the noble Baroness will withdraw the amendment.
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