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Lord Falconer of Thoroton: My Lords, we fully share the high opinion of ACAS held by my noble friend Lord McCarthy. We also acknowledge his remarks about ACAS being overworked at present. ACAS conciliation is a finite resource. It is important that that resource is deployed in the best possible way to assist employers and employees when they most need it. In other words, we want to promote the effective use of conciliation.
Generally speaking, when parties are addressing issues through internal procedures, they are likely to sort out their problems between themselves without assistance. It is therefore relatively rare for ACAS to become involved when parties are actively discussing their concerns, even though they can intervene at this point under Section 18(3) of the Employment Tribunals Act 1996.
The Bill will ensure that all employees have access to procedures. That is a major advance. It follows that we want people to use those procedures to sort out their problems. Employees who fail to meet the admissibility criteria are individuals who have never raised and then pursued their complaint through internal procedures. No serious discussions have therefore occurred. Clause 32 will prompt employees and employers to use the procedures which the Bill provides. That is, in our view, unquestionably a good thing to do.
The amendment would invite or even require ACAS to conciliate even though the admissibility criteria had not been met, even though procedures had not been instigated or used properly. That seems to us to be an unnecessary and inefficient arrangement. It is far better to concentrate ACAS's resources on cases where procedures have been used and have failed.
As I have mentioned, ACAS already has the power to provide conciliation to parties in advance of a tribunal application in some circumstances. ACAS therefore has the flexibility it needs to intervene at an earlier point, where necessary. That facility will remain in place. How will they find out, my noble friends ask in their speeches? It is up to the parties to approach ACAS. That is what happens now when ACAS intervenes before an application is made. It works well and ensures that ACAS's assistance is available where needed. As my noble friends know, the ACAS helpline receives three-quarters of a million calls per year from individuals and employers seeking advice. So ACAS is well sited on a large number of employment problems.
We think that that is the right approach. That is the approach that is set out in the Bill. In the light of what I have said, I hope that my noble friends feel able to withdraw their amendment.
Lord McCarthy: My Lords, we are all getting tired now. The Minister has just had four own goals in a row. He says that we cannot do it because ACAS is overworked. It does not have the resources. Everyone knows that it is much cheaper to have an ACAS settlement than it is to have a court settlement. If it were the case that ACAS could do constructive work and that it was being held up by not having enough money, it would be quite lunatic for a government to come along and say, "We are doing that so that we reduce the demands on the tribunal". It would not reduce the demands, it would increase them, and, settlement for settlement, a settlement using the courts or the tribunals is five or six times more expensive than a settlement by ACAS. So it is an own goal to tell me about an overworked ACAS.
Secondly, the Minister says that it is rare for ACAS to come in. There is no problem because it does not come in very much in the early stage. If it is rare for it to come in, why does one have to legislate to prevent it coming in?
The Minister says that they do not require ACAS to conciliate. Why should we force ACAS to conciliate? When did we ever say that we would make it essential and necessary for ACAS to conciliate? We never said that. We say, "Give it a chance to conciliate". If it wants to conciliate, it can. That is another own goal.
The Minister says that it is up to the parties to decide whether to bring ACAS in. We made this point before: how is the average "irk", who has been unfairly dismissed—I am sorry that the Minister cannot listen. I will speak a little louder. Perhaps he will listen then. I am sorry; I do not think that I have the Minister's attention. I do have the Minister's attention now.
I was trying to say that the Minister says that it is up to the parties to bring in ACAS. The employer might know, but the worker will not know that, so it is another own goal. That is four own goals. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sharman moved Amendment No. 80A:
- Leave out Clause 32.
The noble Lord said: My Lords, Amendment No. 80A standing in my name and that of my noble friend Lord Razzall seeks to leave out Clause 32.
We have spent between one and-a-half to two hours debating the perceived frailties of the clause in the eyes of the noble Lords opposite who are, unlike me, somewhat more expert in matters of employment law. If I needed any convincing that, as they said, the view of the Law Society that the clause is fundamentally flawed is right, the past one-and-a-half to two hours has provided it.
I should be remiss if I did not congratulate the Minister on his defence. He reminds me of Boycott at his worst: absolutely resolute; keeping out the bowling at all costs; and not scoring any runs. Nevertheless, I ask him to reconsider the clause. During the past hour-and-a-half to two hours, we on these Benches have felt that we have been intruding on the private grief between the Government and their supporters on the Back Benches. Please do something about it. Take the clause back to the drawing board; reconsider it. It is fundamentally flawed; it needs to be reconsidered. I beg to move.
Lord Falconer of Thoroton: My Lords, I welcome the intervention of the noble Lord, Lord Sharman, in the debate, if only because his is a fresh voice.
This is an important clause of the Bill. Discussion of it took up a great deal of time in Grand Committee; it has taken up a great deal of time this afternoon and this evening; and I am sure that we shall discuss it for even longer. As a result of the Bill, all employees will have access to a reasonable dispute procedure. That should be seen as a major breakthrough in developing a modern and fair system of employment relations. Millions of people stand to benefit from it.
But procedures are of little use in themselves. They must be used. I hope that we can all agree to the proposition that dialogue is better than confrontation. We want to encourage reasoned and structured discussion at the workplace. Problems are resolved earlier and less acrimoniously as a result and relationships are preserved. We have therefore constructed a series of measures in Part 3 that provide incentives to employers and employees to use those procedures.
Clause 32 sets a simple set of criteria—I emphasise the word "simple"—that employees must follow in order to access a tribunal. They have simply to convey their complaint in writing to the employer and wait for a month. Those are not onerous requirements; they are not cumbersome; and they are easily verifiable.
First, the clause provides safeguards to deal with every difficulty that may arise when the admissibility criteria are applied. The criteria will apply only where the initiative rests with the employee. They will not apply to cases where the employer in fact initiates the complaint. We cannot make access to the tribunal contingent on the actions of the employer. Therefore, the admissibility criteria will not apply to unfair dismissal cases. That takes a large number of cases outside the admissibility regime.
Secondly, we believe that the criteria should not generally apply to ex-employees. Thirdly, we have ensured that employees will not lose their right of access to tribunals through ignorance. Fourthly, we recognise that in extreme cases it would be unacceptable to expect employees to raise a complaint with their employer before going to a tribunal. That use of regulation to deal with exceptional cases is proper. It allows us to consult on their detail. The Delegated Powers and Regulatory Reform Committee concluded that that represented an acceptable power for the Government to take.
Of course it is not unreasonable to attach some preconditions to accessing a legal system. We have long applied time limits to the bringing of complaints to tribunals. We now propose to add several admissibility criteria. They are proportionate, well targeted and serve a sound public purpose. The Joint Committee on Human Rights was therefore satisfied that the Bill can be implemented in a manner compatible with the Convention on Human Rights.
Clause 32 has been wrongly depicted as intended to debar tribunal applications. That is certainly not our intention. Instead, we want to ensure that in a particular and limited set of circumstances, employees must meet a few simple tests before their applications can be accepted by the tribunals. That will encourage dialogue where dialogue can help. Where dialogue does not work, then those cases will move on to the tribunals.
The clause will reduce tribunal caseloads below the level that they would otherwise be. That effect is not achieved by deterring or prohibiting applications. It is achieved because parties will increasingly sort out their difficulties between themselves, removing the need to go to a tribunal. I believe that that is an extremely laudable aim and that it is an aim that the noble Lord, Lord Sharman, would unquestionably share. In the light of that explanation I know that the noble Lord will feel obliged to withdraw his amendment.
9.45 p.m.
Lord Wedderburn of Charlton: My Lords, before my noble and learned friend sits down, will he answer two questions? First, he has mentioned the parliamentary Joint Committee on Human Rights. He will know that the Joint Committee is again considering the matter of compatibility and various aspects of the Government's case on which it asked the Secretary of State a series of questions. Will he tell the House when he expects the second report of the Joint Committee to be before the House?
Secondly, perhaps I may refer to a specific point. As I understand it—I am sure that he will correct me if I am wrong—the Minister has said in the course of his reply that Clause 32 and Schedule 2 will not apply to former employees. In discussing the modified procedure, he explained that workers who had already been dismissed for misconduct would have the modified procedure of Schedule 2 applied to them. Therefore, Clause 32 would apply to them.
Which is it? Are former employees all excluded, or are employees already dismissed for misconduct within the scope of Schedule 2 and Clause 32? I would be very grateful if he would answer both those questions.
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