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Therefore, we are not pursuing this issue further, but there remains concern about the circumstances in which cases can be determined without a hearing. It is important that vulnerable people understand what is involved and are able to make a decision in their own best interests. They have an entitlement to have their case heard by a tribunal that includes lay members and, if they waive such rights, they must know what they are doing.
My noble friend Lord Wedderburn has drawn attention to a recent European Court of Human Rights decision—DH v Czech Republic—which deals precisely with the waiver of a right. The judgment is so important that I shall quote it. It says that,
the European Convention on Human Rights—
- “in so far as such a waiver is permissible—must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent ... and without constraint”.
That is precisely what our Amendment No. 6 says. We say that,
(a) unequivocal,(b) in writing,(c) given without constraint by any person, and(d) given on the basis of informed consent”.4.30 pm
Furthermore, Article 6 of the European Convention on Human Rights makes it clear that everyone is entitled to a fair and public hearing and that judgment should be pronounced publicly. That is the purpose of another of our amendments in this group. We also believe that the parties concerned should have a right to know about the qualifications, background and career of the person who will be charged with hearing the case individually so that an informed opinion can be made. Again, that is the gist of one of our amendments in this group.
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The government amendment agrees with us that consent should be in writing, as we heard from the Minister. Our amendment goes beyond that and, therefore, I prefer it. I have no objection to government Amendment No. 5, but I am rather puzzled by what the latter half means. Proposed new subsection (3AB) says that,
Who does not accept it? Does it mean the claimant? If so, I am quite happy about it. However, I wonder who else might not accept it. Perhaps that could be explained in the Bill.
Generally speaking, I commend our amendments to the House. We have attempted to deal with the problems that could face a vulnerable person and we want to make sure that he or she is in a position to make an informed decision. As a former trade union official, I think that it would be simpler if everyone belonged to a union, as that would mean that they were entitled to professional advice and to representation. Unfortunately, that is not the case everywhere, so I believe that we as Members of this House have to take action to try to protect the rights of vulnerable people. For these reasons, I commend our amendments to the Government, who I hope will consider what we have said. We want to add to their amendments, which we do not think go quite far enough.
Lord Henley: My Lords, I shall briefly respond to the noble Lord, Lord Jones. I welcome him back to his Bill. I imagine that he has been held up hard at work in Crewe and Nantwich. We are grateful to see him here. I am also grateful to the Government for responding to the amendment that the noble Lord, Lord Wedderburn, moved on the first day, I think, in Committee. Let me say how sad we are that the noble Lord, Lord Wedderburn, cannot be here today. He wrote to me about this problem and the ECHR judgment in the case of DH v Czech Republic. The Government have been correct in responding to the noble Lord’s point in this, so all we can say is that we are grateful for that. I am sorry that we will not be seeing the noble Lord later, as I was hoping to have his support on an amendment of mine.
Lord Jones of Birmingham: My Lords, I thank the noble Lord, Lord Henley. I was actually speaking at a businesswomen’s event in Leicester this lunchtime. I believe that, if people have agreed to a speaking engagement some months ago, they should do everything that they can to try to fulfil their promise.
Amendment No. 4 will be effected through our Amendment No. 5. Amendments Nos. 6, 7 and 8 would introduce additional legislative requirements for any written determination procedure. These are unnecessary and would in some cases add extra complication, complexity and cost. Amendment No. 6 proposes a list of criteria for establishing whether consent to a written determination is valid. Our amendment ensures that consent would have to be unequivocal and in writing. That is what is required by the case of DH and Others v the Czech Republic. “Without constraint” implies an assumption that parties could be subject to pressure to choose written determination. We do not believe that that will be an
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This brings us to informed consent. We shall ensure that parties receive sufficient information to make an informed decision about whether to consent to a determination without a hearing. We do not agree, however, that “informed consent” should be defined as “subject to receipt of independent advice”. Independent advice is defined in Section 288 of the Trade Union and Labour Relations (Consolidation) Act 1992. That provision relates to a decision by parties to accept a compromise settlement, which would result in the parties forgoing their right to a determination of their case by an employment tribunal. The safeguard is appropriate in those circumstances. Consent to written determination is not analogous, since the case would be determined by an employment judge. Parties will have sufficient time to seek advice on consent—a minimum of three weeks, as we said in Grand Committee. It should be open to parties to decide not to seek advice, which may have time and cost consequences, if they so wish.
Amendment No. 7 would establish by regulation that the judge’s decision in cases determined without a hearing would be notified to the parties and the public within two days of the decision. That is unnecessary. Currently, when a hearing takes place, a judgment with reasons is usually given orally at the end of the hearing to the parties and any members of the public present in the hearing room. A written copy of the judgment is either sent to the parties after the hearing or given to them on the day. Written reasons are given, if requested by a party, either at the hearing or within 14 days. While the Tribunals Service has internal targets for sending out judgments after a hearing, these are not set out in regulations. I can, however, assure noble Lords that the Tribunals Service acts quickly to notify the parties of the outcome, regularly exceeding internal targets. The Government do not believe that it is necessary to specify a target within regulations. In cases determined without a hearing, the Tribunals Service would routinely send the judgment to parties as soon as it was made. Any further incursion of regulations would, I hope noble Lords will agree, increase, rather than decrease, the red tape that employers suffer.
Amendment No. 8 would restrict the determination of individual cases to a specific judge by imposing a legal requirement for the parties to be advised of the name of the judge who would determine their case, and for that information to be provided before the parties provide consent. This would create an unprecedented provision, not seen anywhere else across the judicial landscape, for the parties to have a right of approval of the judge who would determine their case. That, surely, cannot be right. We have full confidence in the ability of any judge to operate written determination procedures appropriately. Employment judges are appointed following a robust appointment process which ensures that they have the required experience and judicial capacity to judge in the complex jurisdictions that make up the canon of employment law.
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This amendment would also effectively restrict the designation of single cases to single judges and stifle the Tribunals Service’s ability efficiently to organise and manage cases in the most effective, expeditious and, presumably, cost-effective way. For instance, if the designated judge were unavailable to proceed with the determination, through illness or incapacity, it would not be possible to transfer the case to an alternative judge without beginning the notification and consent process all over again. How is that for causing further delay, further cost, further confusion and further frustration? That could hardly be in the interests of the parties as it would simply introduce delay and unnecessary bureaucracy into the proceedings. The Government believe that their amendment to Clause 4, which we discussed previously, provides all the safeguards necessary to ensure access to justice for all parties concerned.
On Question, amendment agreed to.
Lord Jones of Birmingham moved Amendment No. 5:
“(b) the person (or, where more than one, each of the persons) against whom the proceedings are brought—(i) has presented no response in the proceedings, or(ii) does not contest the case.(3AB) For the purposes of subsection (3AA)(b), a person does not present a response in the proceedings if he presents a response but, in accordance with provision made by the regulations, it is not accepted.””
On Question, amendment agreed to.
[Amendments Nos. 7 and 8 not moved.]
Lord Borrie moved Amendment No. 9:
(1) Where proceedings include a claim under the Public Interest Disclosure Act 1998 (c. 23), the President shall, within 28 days of receipt of the claim, publish electronically and without charge the names of the parties and the relevant regional office.
(2) A person who is not a party to those proceedings may obtain from the tribunal a copy of such documents from the proceedings as he may obtain under the Civil Procedure Rules where proceedings are brought in a court.
The noble Lord said: My Lords, I shall refer to proceedings brought under the Public Interest Disclosure Act, which, typically, are claims for wrongful dismissal after the employee has raised some concern of public interest relating to wrongdoing in the firm or company. It may involve fraud, health and safety matters or
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In Grand Committee, I sought to amend the Bill with a new clause to the effect that when proceedings included a claim under the Public Interest Disclosure Act, all the employment tribunal papers—that is, the claim, the defence, the judgment, et cetera—would be publicly available after the conclusion of the proceedings, subject only to certain restrictions on publicity. My noble friend Lord Jones of Birmingham opposed that amendment on the ground, among other things, that it would involve the publication of unproven allegations made against an employer. I argued that no allegation would go on the public record without the employer having an equal opportunity for his full and considered response to be made available at the same time. Since Grand Committee, however, the charity which I shall refer to as the whistleblowers’ charity—formerly known as Public Concern at Work, of which I am patron—has been in touch with officials of the Minister’s department as well as with the CBI and the Engineering Employers’ Federation to see if a way could be found through the disagreements by an amendment conceived perhaps on a different basis.
I would strongly argue that the present position is extremely unsatisfactory, because it so happens that 70 per cent of claims brought under the Act are shrouded in secrecy owing to the fact that they are settled rather than determined after a tribunal hearing. At present, regulations emanating from my noble friend’s department—or under its old guise as the Department of Trade and Industry—prevent publication of any information about claims for wrongful dismissal based on an employee being dismissed for disclosing wrongdoing in the workplace unless the claim is disposed of after a tribunal hearing. But if it is disposed of in a settlement that has been reached in private, there is no way of getting access to the papers. Unscrupulous employers can therefore buy off a whistleblower rather than address and deal with the malpractice that he has brought to the employer’s attention. Nobody will know about the wrongdoing that has been brought to their attention. It also means that an unscrupulous employee is encouraged to bring spurious Public Interest Disclosure Act claims as a tactic, perhaps to secure a higher settlement than he would otherwise get.
The secrecy surrounding that great majority of 70 per cent of public interest disclosure claims also means that no one—no interested third party, no regulator, not even a Minister of the Crown—can find out from employment tribunal records what claims may have been brought relating to, in recent examples, mismanagement at Northern Rock or the problem of C. difficile at a particular hospital.
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My approach in the present amendment, which is deliberately different from the one that I tabled in Committee, is to transplant the general Civil Procedure Rules of the High Court into the world of employment tribunals. In recent years the Government have sought more and more to emphasise that tribunal proceedings, whether on employment or otherwise, are part of
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Under those rules, and I speak only of particular relevant ones, the general rule would be that a member of the public could obtain a copy of the employee’s statement of case for wrongful dismissal. But—and this is most important bearing in mind the Minister’s objection in Grand Committee to which I referred—as the statement of case will contain unproven allegations, because it is the employee’s case only, the tribunal may determine that the statement of case should not be made available or should be made available only in an edited version, or only to certain persons or classes or persons, or on such other terms as the tribunal thinks fit. In other words, if there is any unfairness seen in publishing the statement of case but not the other side, then the tribunal will determine whether or not it is right.
In other words the tribunal can take into account any argument put to it on the lines of the Minister’s concern about unproven allegations being made public, though I might say to my noble friend that every criminal court, every civil court and every tribunal start every day with unproven allegations. Civil court cases and employment tribunal cases are sometimes settled and the other side is not necessarily known. Further, any other document relating to the case—for example, the defence—and any notice of settlement, which is particularly important, will be made public only if the tribunal permits. To put it another way, the secrecy that at present hides 70 per cent of claims under the Public Interest Disclosure Act will be lifted only in cases where neither party has objected to publicity or the tribunal has not upheld any objection made.
Those who advise me at Public Concern at Work have been in touch again with the Engineering Employers’ Federation, which opposes this amendment on the grounds that my proposal to apply the civil procedure open-justice rule to Public Interest Disclosure Act cases is,
I find it impossible to agree that open justice, an inherent part of our general justice system, can be properly described as an abuse of process.
In Grand Committee I quoted the High Court decision of Mr Justice Jackson in 2000 which prevailed until the DTI introduced its no-publicity regulations. He said that,
- “so far as possible, litigation should be conducted under the public gaze and under the critical scrutiny of all who wish to report legal proceedings”.
“The principle of open justice applies to employment tribunals with just as much force as it applies to court proceedings”.
As we are at Report stage, I hope my noble friend the Minister will on this occasion see the advantage of adapting the scheme which has operated in the civil courts—the Civil Procedure Rules—to the employment tribunals. They are, after all, specialised courts and, in many cases, a significant part of the judicial system. I beg to move.
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Baroness Turner of Camden: My Lords, I support my noble friend Lord Borrie, as I did in Committee. He has brought forward a slightly altered amendment to try to meet some of the objections that were raised at that time. Whistleblowing protection is terribly important. We supported the Public Interest Disclosure Act when it was introduced because we felt that it provided a protection for individuals who blew the whistle on unsafe practices. It was important from a health and safety aspect and generally that this should be provided to individuals who were prepared to blow the whistle on incorrect and unacceptable practices.
As my noble friend indicated, the amendment would discourage unscrupulous employers from trying to buy off whistleblowers as a cheaper option than dealing with the serious concern they may raise. Now that we have this slightly amended wording before the House, I hope the Minister will be prepared to accept the amendment this time round.
Baroness Wilcox: My Lords, in Committee I spoke in support of the noble Lord, Lord Borrie, for raising these issues. I repeat that support today and hope that he has some success in persuading the Government of the seriousness of his concerns since we last discussed whistle blowing at work. As the noble Lord said, the amendment has been redrafted to address the concerns of organisations such as the CBI. I understand that there have been further meetings with the Government on this issue and I look forward to the Minister’s response. I hope to hear more encouraging news of the Government’s opinion on this matter than we have so far heard. “In the spirit of compromise” has been the Government’s favourite phrase in this Bill. I look forward to hearing it again in regard to the amendment.
Lord Razzall: My Lords, I, too, support the amendment of the noble Lord, Lord Borrie. Clearly this is a delicate issue, with arguments finely balanced on both sides, and I welcome the fact that the noble Lord, Lord Borrie, has watered down the amendment that he originally proposed in Committee to try to meet some of the concerns coming from the CBI and the EEF in particular.
Two points are persuasive with me. First, as the noble Lord states, in principle it is strange that there should be any difference between the settlement of cases in employment tribunals and the settlement of cases in the High Court. We have reached the stage where, clearly, the employment tribunals provide just as significant a role in our judicial procedure as do the courts. Therefore it would seem odd that there should be any difference in the way these issues are treated.
Secondly, on the figures, as Public Concern at Work has demonstrated, in 2005-06 there were 1,000 PIDA cases, of which at least 600 or 700 were settled. The ones that went to the tribunal went to litigation, effectively; for those, we know the information that the noble Lord, Lord Borrie, is requesting but for the others we do not. That seems strange in the balance of life. I therefore support the noble Lord’s amendment.
Lord Jones of Birmingham: My Lords, Amendment No. 9 seeks to import into the employment tribunal provisions similar to those in Rule 5.4C of the Civil Procedure Rules. This would provide for the release
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