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Lord Falconer of Thoroton: My Lords, the point which my noble friend Lady Turner raises is an important and difficult one, as she acknowledges. The underlying principle behind Part 3 of the Bill is to encourage some dialogue between employee and employer about serious workplace problems. It is our deeply held belief that dialogue is a good thing in itself. It can help to define issues and resolve misunderstandings before litigation is undertaken.
In some respects, constructive dismissals are unlike other cases. They follow from the resignation of the employee. Often, the employee does not give the true reason to their employer before resigning. The resignation issue can be hidden. Employers may think with some justification that the employee has resigned—as hundreds of thousands do each year—for reasons totally unconnected with their individual treatment at work; for example, because the former employee wants a change, to move on to full-time education or to start a career elsewhere.
In some constructive dismissal cases, the employer may be totally unaware that there is a problem before they are sent a copy of the tribunal application. We want to avoid that outcome if we can. We want to give the parties a chance to exchange information first before going to a tribunal. We believe that that will be beneficial to both sides. It may even resolve the issue. We are therefore convinced that there is particularly good reason to apply the admissibility criteria to these cases.
Nevertheless, we know that the issue is complex, for precisely the reasons to which my noble friend has referred. We shall have to think hard about exempting certain categories of constructive dismissal case from the admissibility regime. Harassment and bullying at work, as my noble friend rightly said, are connected to significant numbers of constructive dismissal cases. People resign rather than suffer the continuing pain and humiliation of such cases. We need to look at the case for exempting people exposed to such serious ill-treatment from having to pursue the matter with the employer before going to a tribunal, even though the admissibility criteria do not require the parties to meet. Therefore, such cases, for precisely the reasons given by my noble friend, require special consideration. As I have said, however, they are not the only cases that give rise to constructive dismissal.
We shall also have to look at the interaction between the statutory disciplinary and grievance procedures in these cases. A person may resign and claim constructive dismissal where the employer has unfairly disciplined him or her. In such cases, it is usually obvious to both parties why the employee has resigned. They may even have discussed the possibility during a recent disciplinary hearing. It may be wasteful and unfair in such circumstances to require the employee in effect to initiate a grievance.
The Government cannot accept this amendment. However, we recognise the need to draft the regulations under Clause 32 with care to ensure that we exempt deserving cases from the application of the admissibility regime. We shall of course consult in full on the draft regulations. This should give all parties a good opportunity to help us to identify the exemptions required. In the light of what I have said, I hope that I have reassured my noble friend on the basic concerns she raised.
Baroness Turner of Camden: My Lords, I thank my noble and learned friend for that response. I am particularly glad to note that the Government clearly have some sympathy with the case that we have been making. As I said in my initial submissions, I still believe that there is a case for placing something on the face of the Bill. If a provision is put into the legislation, at least that will be a warning to employers who feel inclined to exercise power over vulnerable people that they may have to face a tribunal without the employee having to go through all the procedures.
However, I accept that there is recognition that a very strong case exists here. Although I should much prefer something to be placed on the face of the Bill rather than in regulations, I am glad to note that the Government at least accept that we have a strong case. I am pleased that they accept that there are situations in which it is simply not reasonable for a worker in this type of situation to try to enter into a form of dialogue with an employer who may be victimising him or may be prepared to accept a situation in which the employee is harassed or bullied. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy moved Amendment No. 80:
- Page 38, line 34, at end insert—
The noble Lord said: My Lords, I am afraid that my noble and learned friend will find that, once again, we are going over the same ground. However, it is the last time that I shall be doing so tonight, and that may be some consolation.
This amendment concerns the activities of ACAS during the dead period—that is, during the operation of the restriction of access in the statutory procedure for dealing with grievances. It is perfectly true that we tabled an amendment on this subject in Grand Committee. I argued that Routes to Resolution advanced the case for the statutory procedure because the Government wanted to promote non-legal settlements. Much was made of that.
We had some difficulty in understanding how the organisation with a great reputation for facilitating settlements—indeed, it was created and founded in
Subsequently, when challenged, my noble friend referred to Section 18(3) of the Employment Tribunals Act. We said that that was a general provision which applied only where the proceedings could be brought by the applicant. But it might be possible for someone to argue subsequently that the applicant could not bring a case before a tribunal now because he was excluded by the provisions of the statutory procedure. That was enacted before these restrictions were to be imposed in this Bill.
We also put forward the idea that an applicant who could ask for ACAS to be brought in might not know that he was able to use ACAS. Most people in business and probably most people in this House know all about ACAS and perhaps avidly read its annual reports, but out there people do not know of it. My friends in ACAS tell me that, when they telephone people, they are asked, "Who are you?". Of course, that is the case. Therefore, how are people to know, in the middle of the 28 days of purdah, that they can use ACAS? I am assuming that they can, although that has not been made absolutely clear to us. Let us suppose that ACAS does not know. ACAS is structured in such a way that it will wait to receive the ETs. When it receives the forms, it starts the process. That is how it works. How can we know that ACAS will know? ACAS is not exactly looking for work; it is overworked. It does not go around saying, "Have you heard of some cases we can do?".
We were not satisfied. We said, "Why not send the new form as soon as it is available? As soon as you get the completed form, do not wait for 28 days; send it round to ACAS". The noble Lord, Lord McIntosh, said:
Lord Wedderburn of Charlton: My Lords, my noble friend's case is surely grounded on a most important reason in Clause 32, which must take account of Section 19 of the Employment Tribunals Act 1996. Section 19 states:
"(11) The Secretary of State shall make provision by regulations to ensure that, where a complaint is communicated to an employment tribunal but falls within any of subsections (1) to (3), copies of the communication and notices relating to it shall be sent to a conciliation officer for the purpose of giving an opportunity for the complaint to be settled by way of conciliation."
"ACAS can . . . provide conciliation . . . in advance of a tribunal application in certain circumstances . . . that facility will remain".—[Official Report, 26/3/02; col. CWH 377.]
"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".—[Official Report, 26/3/02; col. 381.]
So, now we have this admission, as we have had subsequently. We have to ask yet again at this time of night, "What makes you think that ACAS will discourage the settlement of disputes between employers and employees?". What an insult to that great institution to say that, in order to make it more likely that there will be a settlement, ACAS cannot come in. If that were true, we could close down ACAS and then we would have more settlements. That is nonsense and the Government know that it is
nonsense. Therefore, I want to see what they can conceivably find to justify themselves tonight. I beg to move.
"Employment tribunal procedure regulations shall include in relation to employment tribunal proceedings in the case of which any enactment makes provision for conciliation—
(a) provisions requiring a copy of the application by which the proceedings are instituted, and a copy of any notice relating to it which is lodged by or on behalf of the person against whom the proceedings are brought, to be sent to a conciliation officer".
That is how ACAS gets to know about the case. Every application is sent to an ACAS conciliation officer. If the employee is prevented from making an application, for which Clause 32(2) provides, if he has not completed the first step in a grievance procedure, or if he has completed even the first step in a grievance procedure after waiting 28 days, how does ACAS get to know about the case? It may read about it in the local newspaper or someone may send ACAS a letter. There is no automatic notification to ACAS. As my noble friend said, we want ACAS to know about cases even if they fall within Clause 32(2), (3) or (4). That is the point of the amendment, as my noble friend said. That is a case which I do not believe the Government can reasonably resist.
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