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Lord Falconer of Thoroton: My Lords, the statutory procedures represent a significant innovation. We have consulted on them. They have been scrutinised in detail both here and in another place and the procedures have been amended as a result. We are as confident as we can be that they will work in practice. However, experience, unforeseen events or changing circumstances may throw into question the use of particular words—or possibly whole sections of the procedures. It is therefore eminently sensible to build some flexibility into the Bill allowing us to change the procedures in the light of developments.
Clause 29(2)(a) contains an important order-making power enabling the Secretary of State to change the statutory procedures in Schedule 2. Before using those powers, the Secretary of State must consult the Advisory, Conciliation and Arbitration Service. Orders must be introduced following the affirmative resolution procedure. The Select Committee on Delegated Powers and Regulatory Reform considers the power to be "appropriate". The amendment tabled by my noble friend would limit the use of the power to ensure that the procedures were not changed in a way which made them less favourable to the employee.
We have two problems with the amendment. First, it would seriously imbalance the power. As I stated, the power is there to deal with unforeseen circumstances—to correct any practical problems or difficulties in interpretation. If a problem emerged that mainly affected the employer, it might be difficult to use the power to make the necessary adjustments to the procedures because employees might incur some loss—however minor—as a result. That is simply inequitable and would ensure that known deficiencies in the procedure would remain in place much longer than necessary.
Secondly—this point was made by my noble friend Lord McIntosh in the passage cited by my noble friend Lord McCarthy—it is by no means easy in all circumstances to determine what is or is not
"favourable" to the employee. For example, it is far from clear whether employees would be advantaged or disadvantaged if the requirement to set out grievances in writing were replaced by an obligation to make the complaint orally. Some might benefit if they could not express themselves well in writing, whereas others might lose if they found it difficult to explain themselves clearly and unambiguously in the spoken word.So I fear that we are not prepared to agree to the amendment and I hope that, in the light of my explanation, my noble friend will feel able to withdraw it.
Lord Wedderburn of Charlton: My Lords, before my noble and learned friend sits down, I have two questions for him. First, is he not aware that the formula of what is not less favourable to employees appears frequently in other areas of statute law and has never caused a difficulty of the kind that he describes?
Secondly, my noble and learned friend suggests that the power to change things in a way that may be less favourable to employees is to deal with unforeseen events. This happens again and again in the Bill: the Government take powers and then say, "Oh, we cannot tell you to what they may apply; it is all unforeseen". Cannot he produce one example in which it would be reasonable to make a less favourable provision for employees? None of the examples that he gave was in fact of that kind. It is extraordinary that the Government want to take powers for events that are totally unforeseeable.
Lord Falconer of Thoroton: My Lords, on the first point, yes, I am aware that there are provisions in employment law describing procedures no less favourable to a particular group. I am also aware, as is my noble friend, that almost all of those provisions have accreted a huge amount of case law around them as to what they mean.
On the second point, the starting point for the provision is that we think that we have the statutory procedures right. It follows that we do not at present identify changes that will be required. By their nature, the changes are unforeseeable at present. But, in the course of my remarks, I gave an example; namely, evidence to be given in writing as opposed to orally. I do not envisage that that change will be required, but it identifies the problem. I hope that I have adequately answered my noble friend's two questions.
3.15 p.m.
Lord McCarthy: My Lords, I fear that I do not agree. There are several points to be made. Of course, we do not deny, and the amendment does not preclude, that the Government will from time to time want to make changes in the light of various developments. But on the question of what is less favourable to the employee, I thought that the Government had made a great deal in this House, in another place and in Routes to Resolution of the fact that this is a minimum procedure. It is not everything, for God's sake.
It is certainly not what is in the ACAS code. We have frequently said, "Why not include a little of what is in the ACAS code?" "No, no, no", the Government say, "It is a minimum. The employer—especially those poor employers who have never before had a procedure—could not possibly embrace more than what is in the minimum procedure". OK, I accept that, it is pretty minimum, but in fact it could get worse. In the example that my noble and learned friend gave, it is impossible to say whether the situation is worse or better. With respect, that is frivolous. My examples of ways in which the situation could be made significantly worse are substantive and they were not challenged by my noble and learned friend.
Finally, I am not at this point saying that I expect the Government to accept the amendment. We have for a long time been used to tabling amendments that are not accepted. But we would be making some progress if only Ministers would say that some of the concerns that underlie the amendment are unjustified and unfair and that they do not intend to act in that way. They could say that they do not intend to make the minimum procedure worse. That is what I ask them to do, but they will not do it and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon moved Amendment No. 35:
- Page 35, line 33, at end insert—
The noble Baroness said: My Lords, Clause 29 introduces Schedule 2, which sets out the statutory dispute resolution procedure. Unlike other procedural clauses in the Bill—for example, Clauses 23 to 28—the schedule relates solely to claims under the Bill and does not alter employment tribunal procedure generally. The whole tenor of the Bill's procedure is one of informality, recognising that applicants may not have easy access to legal advice or support from a trade union and that employers will more often than not be small businesses—very small businesses, in many cases—the proprietor of which has neither the time nor, in many cases, the money to secure professional assistance.
Schedule 2 sets out the procedure in two-and-a-half pages containing three separate parts comprising a total of five chapters. It goes into minute detail, much of which is rightly designed to resolve the differences between the parties by agreement or discussion without recourse to the tribunal. When introducing the Bill, the Minister made it clear that it was a great attempt to make things much more informal and to try where possible to avoid employers and employees having to end up at tribunals.
Of course, we have absolutely no objection to that procedure. We think that it is fine. However, with no disrespect to employees or employers, who may be acting for themselves in person and without skilled
About 300 years ago English courts began to erode the rules of "strict pleading" under which the courts of common law sometimes dismissed cases, not on their merits, but because of some defect in the form of the documents presented to the court. There is a legal maxim de minimis non curat lex—the law does not concern itself with trifles—which has its origin back in Roman times where it was expressed as de minimis non curat praetor—a praetor does not occupy himself with petty matters. There is no reason why employment tribunals should be exempt from this long and persuasive line of precedent.
The Minister, in his reply to me at Committee stage, said that,
If the Minister has attended as many counts as I have on election night, he would know how many voters do not seem to understand the simple process of putting a cross in a box next to the candidate's name. Those voters would not claim that—and I repeat my earlier quotation:
It is not a scope for cunning parties to avoid what the Minister called the "clear and uncluttered" procedures laid down in the second schedule. The
The civil courts, which according to the Government the tribunals are supposed to mirror as far as possible, have what they call a "slip rule" which allows minor errors to be corrected or ignored. It is no assault on the "clear and uncluttered" provisions of the second schedule to allow the same leniency to unqualified parties to proceedings before the tribunal in cases under this Bill.
Perhaps I may say to the noble and learned Lord who is to answer that, given that the aim is to try to take matters out of tribunals or make matters simpler, it can do no harm at all to the law and can only make it easier. I beg to move.
"(4) Minor and inconsequential breach by an employer or employee of the requirements of Schedule 2 shall not result in his suffering any detriment in any proceedings before an employment tribunal and the employer shall not be deemed thereby to have wrongly dismissed the employee."
"as presently drafted, the procedures are clear and uncluttered".
I agree with that. He then said:
"Each action within them is simple to understand and apply".
I agree with that, too. He also said:
"There are no convoluted twists and turns".
I agree with that. He went on to say:
"I feel there is only limited scope for 'minor and inconsequential' breaches to occur".—[Official Report, 18/3/02; CWH.189.]
I profoundly disagree with that. I do not believe that the Minister thinks that that is a serious argument. We know that millions of pounds of social security entitlement is unclaimed because those entitled do not know how to get their entitlement. There are many things that the average person does not know what to do with when filling in forms, and so on. Every government department can tell tales of forms—even those as simple as passports and driving licence applications—being rejected because they were incorrectly filled in.
"There is only limited scope for minor and inconsequential breaches to occur".
I want to be careful not to be disrespectful to anyone or to over-generalise. However, it is a fact that many of the litigants before the tribunals, in person and without professional assistance, can often be employees with limited academic qualifications or, in many cases, with limited English. It is equally true that in the case of employers, many of them acting in haste may also not have the most excellent command of English. Surely there is no harm in protecting employers or employees from the consequences of what would only be a minor procedural error—and I emphasise the word "procedural"—which might otherwise wreck a perfectly valid case.
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