|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Lea of Crondall: My Lords, there are some issues of different jurisprudences on which I should have commented in speaking to Amendment No. 44 but which can be addressed equally in relation to Amendment No. 45.
A number of different procedures may now be arising. We have ACAS and the role of the ACAS code. We have the interesting and relevant proposition of my noble friend Lord McCarthy in relation to this amendment. We have the question as to how procedures under the 1996 Act dealing with unfair dismissal work. There will no doubt also be procedures dealing with legal challenges to the grievance and discipline procedures within the Bill.
It might be convenient if the Minister could clarify one matter in his response to the amendment; namely, how we are going to make sure that there is some reasonable dovetailing between the procedures. We understand that before regulation there will need to be talks between ACAS and the DTI about the relationship between the ACAS code and the DTI. This question is more generally relevant in the light of the amendment moved by my noble friend Lord McCarthy in terms of making sure that there is a reasonable interface between the three or four sets of procedures which can be taken into account by an individual or by an employer. It would be useful to hear some comment on the matter at this stage. I believe that the House will be consulted at a later stage when regulations are introduced, but the question will arise of major points of the ACAS code being taken into account if someone wants to appeal
We were told in Committee in another place by my honourable friend Alan Johnson, the Minister of State, that the ACAS code would need to be rewritten once the Bill reaches the statute book. Therefore, it would be extremely useful, in the context of what my noble friend has just said, if the Minister could give us, either now or at some later stage, a conspectus of the changes which the Government's legislation will require in the ACAS codenot least in respect of the matter of mediation in the amendment moved by my noble friend.
I repeat what my noble friend said. This amendment is being debated with Amendments Nos. 56 and 65. The machinery that is proposed for mediation not only provides some step further than the employer's first and last word, which is what the Government leaves workers with; at the root of the unfairness of Schedule 2 is the fact that workers will be left with the employer's first and last word, especially in the modified procedures to which we shall come. My noble friend's amendments do not suggest some arbitrary or unilateral mediator. If one looks at Amendment No. 65, which deals with the machinery for the mediation, one finds that it suggests that employers should be encouraged to reach agreement with,
It seems to me that my noble friend is proposing mediation as an added extra to the employer's "last word" on a most reasonable basis; namely, of agreement, or ACAS. Therefore, both points that I have madethe ACAS code and the place of ACAS in mediationneed to be made clear in respect of this group of amendments.
Lord McIntosh of Haringey: My Lords, we spent time in Grand Committee debating whether the statutory procedures should be amended to give the employee unilateral access to third party involvement in the shape of mediation and arbitration. In this set of amendments, my noble friend is confining himself to the involvement of just the mediator.
The amendments now before the House would compel the employer to accept mediation. I remind my noble friend, as he reminded us, that the amendment he moved in Grand Committee (Amendment No. 102), was about an arbitrator rather than a mediator. In that sense, it goes well beyond the existing guidance of the ACAS Code, which stresses that both parties should agree to third party intervention.
My noble friend describes his amendments as representing the only real alternative to the tribunals for resolving disputes. However, I doubt whether it would work that way. Compulsion would make the mediator's job much more difficult. It is possible that the employer would not collaborate with the mediator in his examination of the issue. It would certainly mean that employers would feel under very little moral obligation to accept the mediator's recommendations. I suspect that issues would remain unresolved because the mediator's advice would not be readily accepted in those circumstances. Many cases would still go to the tribunal, and the mediator's intervention would be wasted. Indeed, the reputation of mediators might suffer as a result.
Moreover, as I mentioned at Grand Committee, unilateral access to a mediator may create perverse incentives in the system. For example, it might dissuade the parties from bilaterally resolving their differences. My noble friend made some play of the comments of the Better Regulation Task Force. We place considerable reliance on the task force. Indeed, we take its recommendations most seriously. It has made recommendations for increased access to mediation. We accept the value of mediation, but nothing in the report of the task force supports the proposal for compulsory mediation, as proposed in the amendment. It would not only be compulsory, it would also be unilateral.
Before I conclude, I should like to return to the point properly raised by my noble friend Lord Lea of Crondall in Amendment No. 44, which we passed by rather rapidly. My noble friend's amendment would place a duty on employers to take the ACAS Code into account when arranging meetings under the statutory procedures, and when disciplining employees. Under Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, employers are not placed under any direct requirement to observe the code. However, the section does require employment tribunals to take the code into account if it is relevant to any question before them.
My noble friend Lord Wedderburn pointed out that a Minister in another place had said that changes in ACAS may be needed as a result of this Bill. I do not deny that possibility. However, I believe that my noble friend asked me to give a "conspectus" of what changes would be required. It would be impertinent for me to do so. It is for ACAS to consider its code; it is not for the Government to suggest what changes might be made. No doubt ACAS will address that situation when it sees the Bill on the statute book.
The fundamental point is that the amendments would significantly change the approach adopted in these statutory procedures, which are being introduced into legislation for the first time. They are being made available to 6 million people who might not have access to them at present. They are meant to contain the basic core features of a dispute resolution system. These amendments would make the procedures much more prescriptive. We do not believe that we should move in that direction. The roles of mediation and arbitration should stay as they are.
Back to Table of Contents
Lords Hansard Home Page