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Lord McCarthy moved Amendment No. 71:

Page 37, line 36, leave out "28" and insert "14"

The noble Lord said: My Lords, Clause 32 deals with complaints about grievances, something about which we have, I suppose, the most criticism. The clause states that you cannot start to redress your grievance—in other words, you cannot get on your journey to a hearing—unless the statutory conditions are fulfilled. The worker must present the written grievance. He has then to wait for the employer to reply, after which he has to attend a meeting. Thereafter, if he so desires, he can take the matter to appeal. If he receives a reply to the appeal, he must wait for 28 days.

We discussed this issue at length in Grand Committee, but we have been unable to understand why this fifth restriction on access should be imposed. If there are four restrictions on access, why does there need to be a fifth? We are being extremely modest here, because we are only asking for 14 days. Indeed, we might as well ask, "Why not?" We put that question in Grand Committee and received a reply from my noble and learned friend Lord Falconer. Unfortunately, we were perhaps a little provocative because we suggested that the Government had gleaned their information from the CBI. Alternatively, we thought that the Government had some reason for stipulating the 28-day period. We wondered whether there was something that we had not really appreciated which made the 28 days the most appropriate time-scale.

In his reply in Grand Committee on 25th March, my noble and learned friend asked himself a rhetorical question:

"Why did we set the 28 day period? Not because the CBI asked us to; there is no particular research"—

so we received an answer to our question about research—

"that says that 28 days is the right course. In setting the 28 day period, we had to balance two considerations".

I thought we were getting somewhere at that point.

"First, we did not want to set a period that was too long and which would unnecessarily delay an employee's access to the tribunal system. We think that 28 days is not too long to wait. Secondly, we wanted to ensure that there was a sufficiently long period to provide a window of opportunity".

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So 28 days turns out to be not too long, not too short, but just right; and it provides a window of opportunity. However, we are not told why the 28-day period will provide this "window of opportunity".

My noble and learned friend went on to say:

"Within our proposed 28 day period, it should be possible in many cases—obviously, however, I accept that this is not possible in every case, as my noble friend Lord McCarthy rightly said—for the parties to meet at least once and to establish a dialogue. They may also take other steps, outside the statutory procedure, to try to clarify and unravel their problems. In our judgment, a 14-day period would be too short".—[Official Report, 25/03/02; col. CWH 325.]

This is a very strange type of defence. It is as though people cannot talk to each other once ACAS arrives. It is as though the parties separate once ACAS arrives. It also does not seem good enough to provide for an arrangement telling ACAS to come back. The Government seem to be saying that the parties can talk to each other only when no one is around.

So we have raised our various objections and said that we do not think the "window of opportunity" was a very good argument. What the Government have never dealt with is the delay affecting applicants after they fill in the ET1. The Government give the impression that those involved in running tribunals sit around waiting for work and fire off an ET3, ring up ACAS and start acting as soon as they receive an ET1. But that is not what happens. As I tried to say in Committee—but I did not receive any further figures from the Government—the tribunal system is extremely cagey about how long cases take. One cannot obtain that information. Those involved in the system say that they have a target of 26 weeks, and that 77 per cent of cases are heard within 26 weeks whereas the other 23 per cent take a bit longer. However, that is not what we want to know. We want to know the proportion of cases settled in one week, two weeks, three weeks and so on, but we have not been told. When one asks, one is simply told, "The information would just confuse you. You do not really want to know. Anyway, we do not like to look too closely into it; 77 per cent of cases get a hearing within 26 weeks. If we could get that up to 80 or 85 per cent, we would be cooking with gas". That does not really help.

On the hearsay evidence of those I know who work on tribunals or act as side-persons in tribunals and even chair tribunals, it seems that all sorts of cases take six weeks, seven weeks or eight weeks to go to tribunal after the case is lodged. Why the dickens do the Government want to impose an arbitrary 28 days on top of all that? That has never been explained. Of course the Government say that they will not necessarily apply this to everyone. However, we are not told for whom it will not work. We have therefore tabled subsequent amendments to address that issue.

We are making a very modest proposal. We are simply saying that if the Government cannot justify the 28-day proposal or accept that ACAS ceases its involvement as soon as it cannot proceed any further, after which the parties will again negotiate, we do not need that 28-day dead period in which nothing will happen. Other methods of facilitating a settlement should operate as and when they are required and

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useful. If a poor worker has to wait five or six weeks before he gets to a tribunal, I fail to see why he should be subject to another 28 days of delay. So if the period cannot be eliminated entirely, let us make it 14 days. I beg to move.

7.15 p.m.

Lord Wedderburn of Charlton: My Lords, I have a few brief remarks to support the case made by my noble friend Lord McCarthy for Amendment No. 71. This amendment interrelates with the problem to which we shall come in Schedule 4 as to the ambit of Clause 32. Clause 32 applies to a vast number of situations, as we shall see when we come to Schedule 4. There is much to be said about Schedule 4 and its interrelationship with Clause 32. For example, this 28-day period in which the worker has to return to work applies to sex discrimination cases, race discrimination cases and disability discrimination cases, during which time the worker has to go back to work and continue to suffer for 28 days if the employer does not deal with the matter in dialogue, as some employers will and others will not. What is the point of that? Why do the Government not say, "You must go back for 28 days, but that does not apply unless the employer gives a guarantee that he will negotiate"?

The Government do not say that. They do not put any obligation on the employer during those 28 days. They just say, "It may happen that there is dialogue during those 28 days". It may happen and it may not. What kind of guarantee to workers is that? Do they not understand why workers are not satisfied with this structure, in which they are told to work and suffer discrimination before they can get anywhere near the doors of a tribunal? It really will not do. The list in Schedule 4, as we shall see, goes much further than that, listing cases in which workers have been victimised. Those workers will have to go back and be victimised again, for 28 days. It is a quite preposterous idea.

My noble friend Lord McCarthy is of course right that, in proposing 14 days, we are questioning why the period should exist at all. In Grand Committee, my noble and learned friend Lord Falconer of Thoroton said:

"Ultimately, it is a matter of judgment. In considering the correct period, the Government and those advising them have sought to take a balanced view in relation to all sorts of cases . . . In some cases, the effect of promoting the use of the grievance procedure in this way will be to bring the detriment to an end more quickly than would otherwise have been the case".—[Official Report, 25/03/02; col. CWH 326.]

We accept that in some cases. But what about the other cases? The worker will have to suffer for 28 days more, and that is not reasonable.

My noble and learned friend really must face up to that fact. Whatever guarantees have been given about this limitation on access to justice really should be reviewed, and my noble friend's arguments for this amendment should be seriously considered before Third Reading.

Lord Falconer of Thoroton: We debated an identical amendment in Grand Committee. The arguments then

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advanced were similar, and the Government's response is inevitably similar. The overriding objective of Part 3 is to encourage a dialogue between employer and employee. We consider that the existence of a tribunal application complicates that dialogue and in some cases completely sours it. That point largely deals with the point made by my noble friend Lord McCarthy that, after the application, there are inevitably delays before a case is heard.

In our judgment, a period of 28 days is needed to give time for the parties to consider the grievance and act upon it. It provides enough time for them to meet and communicate directly with one another without the extra pressures, complications and, in some cases, sourness imposed by a tribunal application. A shorter period would be insufficient. In our judgment, a longer period would be excessive and unnecessarily delay access to the tribunal. To our knowledge, there is no recent survey evidence showing how much time is taken up by grievance procedures. However, the ACAS code gives some guidance on the time that should be taken by the parties when undertaking parts of procedures. For example, employers should give their response to a grievance within five working days of meeting the employee to discuss the grievance. Likewise, after an appeal hearing, managers should communicate their final decision within 10 working days. When one factors in this advice by ACAS, a total period of 28 calendar days does not seem excessive.

My noble friend Lord Wedderburn cited cases in which there was harassment and difficulty. As we have said, there will be some special cases, and the threat of violence or other forms of serious harassment fall into this category. Likewise, we do not want to force employees to raise a grievance as an individual complaint if it has already been addressed as a collective issue by a union on their behalf. We intend to cover these two main categories of exemptions in the regulations. There may be others which it would be sensible to add by consulting fully on the draft regulations. Interested parties can give us their own views on this key subject.

In the light of what I have said, I hope that my noble friends Lord McCarthy and Lord Wedderburn will feel able to withdraw or not press their amendments.

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