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The amendment is also unnecessary in the sense that the tribunal legislation already gives the Government the power to bring in representative proceedings. The Government so far, no doubt because the business Ministers representing employers have decided to oppose this, will not exercise that power. I shall try to think of some ways before Report to make them do so, and I hope that the Official Opposition will join in that.
I want to try to explain why this is such an important issue and, in doing so, I hope that the noble Baroness, Lady Turner, will allow me to go down memory lane to give just one example. About 25 years ago, I had the privilege of representing MSF in the speech therapists or Enderby case. The noble Baroness, Lady Turner, will remember it very well because she was there from the beginning and it was her trade union. That case took 11 years-I say it again, 11 years-from start to finish. We had to go to the divisional court, the Court of Appeal and Luxembourg, come back from Luxembourg and then there were further proceedings. The case involved comparing the work and pay of speech therapists, hospital pharmacists and clinical psychologists within the National Health Service. The Government, in the public sector, used every trick in the book and fought tooth and nail to avoid giving those speech therapists, 99 per cent of whom were women, equal pay with their counterparts.
Each of those women had to fill in a separate originating application, a separate claim form, because there was no procedure in the employment tribunals to allow them to join together-not in an American-style class action but simply in English-style representative proceedings so that several hundred claimants could be joined together. Because there were hundreds of separate pieces of paper, as is now required, the
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My amendment is unnecessary and too narrow. It is very modest, because it states:
"The Secretary of State must make regulations to allow the Equality and Human Rights Commission or a registered trade union"-
- "to apply to a court or tribunal ... for a representative action order in relation to a defined class of persons ... who would benefit".
It goes on to explain how that might be done.
One bad argument I heard from within the Administration-I think it came from the Ministry of Justice-was that all this is very sensible, but we have to wait for the civil justice review to change the system for all proceedings. That is one of the arguments that FM Cornford dealt with in his classic book Microcosmographia Academica: Being a Guide for the Young Academic Politicianas a recipe for doing nothing at all.We do not need to wait to reform the entire civil justice system when we are dealing with discrimination law and a specific jurisdiction. All I therefore beg for is that the Government will exercise their power now-there is no need for consultation, as this is not controversial-to allow the commission and registered trades unions to apply in this way so that we can have orderly proceedings. It is not radical. It is not even liberal. It is just sensible. I beg to move.
Baroness Turner of Camden: I support the ideas behind this amendment-we heard what the noble Lord, Lord Lester, had to say about it-because I recall that when I was a trade union official, when the union wanted to secure equal pay for sections of women workers and wanted to use the legislation, it was necessary to find an individual member in whose name the case could be taken to a tribunal. If the case was won, it was then possible to get the decision carried through to the remainder of the workforce involved. But there was of course a problem. Someone had to be prepared to stand up herself, on behalf of everyone. Of course, it was done. The case to which the noble Lord, Lord Lester, has drawn attention was the case of speech therapists, who were members of my union, and we were fortunate in finding one member, a test-case member, who was willing to go the whole length-the whole 11 years-that it took before we eventually won that case. She was a remarkable woman, but you cannot always rely on exceptional individuals.
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It would be so much simpler, as has been indicated, if we were able to take representative cases for the whole group of members; and there is also a case, of course, arguing that it should not just be for equal pay cases but across the whole spectrum of equality governed by the Bill, in which case we would need very different wording. I was in fact approached by a group that wanted a set of wording rather different from that of the noble Lord, Lord Lester, which would enable any equality case to be dealt with on a representative basis, if the union sought to do so. We will maybe consider that at Report. This is certainly an issue which ought to be dealt with by the Government either in the way suggested by the noble Lord, Lord Lester, or perhaps with the aim of a different amendment at Report, when we can take it across the whole spectrum of equalities in order to ensure that representative action can be taken instead of relying on exceptional individuals. They are few and far between, and you cannot always find people who are willing to go the full distance, as did this particular member in this particular case.
Baroness Butler-Sloss: My Lords, I strongly support the thrust of the amendments of the noble Lord, Lord Lester, even though, as he points out, they are ineffective today. I also very much hope that he will induce the Government to think again about whether their existing powers could be put to good effect, because if in fact they are not going to be put to good effect by, I assume, another government department, then they ought to be restated in this Bill. I also share the noble Lord's view that the requirement that further work should be done on the various procedures within the civil courts is quite unnecessary. As a member of the Merits Committee, we dealt with three Crown Court or civil jurisdiction regulations today, without the slightest difficulty, and I do not see the slightest difficulty in having regulations in relation to discrimination quite separate from anything else that comes. It is a perfectly simple thing to do. The wording of the regulations would have to go through the civil courts procedure committee, and no doubt there is another committee, the name of which escapes me, which would also have to look at it. Those are purely and simply procedural matters, to get to the point that the noble Lord is making, and it is well overdue.
One very simple point, which has already been pointed out by the noble Lord and by the noble Baroness, Lady Turner, is that it is inefficient to use a single person when that single person is representing a lot of other people. It would be much more efficiently done, and actually better for the employers, if they knew the extent of those who were involved in this, and everybody knew where they stood. It would be more efficient from the point of view of everybody. It therefore seems to be well overdue.
9.30 pm
Baroness Flather: My Lords, I, too, should like to add a word of support. At a meeting with the Solicitor-General before the Bill went before the Commons I brought up this issue, but I was told that it would not
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Baroness Howe of Idlicote: My Lords, I support the intention behind this amendment. The more I think about the years we have waited to get anything near equal pay for work of equal value, the more perhaps I have become cynical about how long it will take to achieve. Not least are the excuses, such as, "We are in a bad economic situation". So what do we do? We make certain that we do not give anything at all that we think might cost us, which fails to take account of the fact that one of the good aspects of a recession is that it should be, and is in some cases, encouraging firms to half lay off people-for example, using flexible working-which applies to men as well as women.
However, on a more general point, there are many sides to this issue. I feel almost as if I am arguing the same case for prison reform. Let us do more to prevent it happening in the first place. What is happening in schools? How often are girls being taught about jobs where there is need and where the pay is better, and always has been? Mentoring of that sort would help. There are all sorts of things like that. For example, girls can be given the chance of apprenticeships in areas that they have never thought of or had suggested to them. Preventive work is part of it.
Clearly, we have more people in the public service than we have ever had before. If the public sector is to set an example, as it should, this will have some effect if it can be shown that it is setting the example for others to follow, not least if it starts with employers of 150 people. I should like to encourage everyone not to be too depressed by all of this but to think of a range of ways in which we can move ahead.
I am afraid that I am even more cynical than I have indicated so far. When we had equal numbers of trade unions and CBI reps on the Equal Opportunities Commission, I am afraid that my reaction was, "Okay, those six will get together and make certain things do not move as fast as they should". There was too much common interest in not moving ahead. There is a lot still to do, but I am certain that we can move much faster than we are. The idea put forward by the noble Lord, Lord Lester, even if his proposal is not well drafted, is a good beginning.
Lord Hunt of Wirral: My Lords, it is my great pleasure to follow the noble Baroness, Lady Howe of Idlicote, because she was my inspiration when she chaired the Equal Opportunities Commission. I have to say that she never let me get away with anything. Indeed, I have been committed to the cause we are discussing as a result of her initiative. This is a welcome opportunity to pay tribute to her.
I listened with interest to the noble Lord, Lord Lester, and I understand completely his concerns. But I just say to a number of those who have participated
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I am worried about provisions such as meetings in private and various other things in the amendment, but I do not think that it is necessary to go into great detail because the noble Lord has already put it in context. I believe that our proposals for compulsory pay audits limited to employers who have lost equal pay cases would mean that class actions were no longer necessary. So let us get on with it.
Baroness Royall of Blaisdon: All noble Lords this evening have made a persuasive case in favour of representative actions. We certainly welcome the intention behind the new clause, but we cannot accept it. It would be premature to legislate for representative actions in equal pay cases now because there are a number of difficult issues still to work through in order to understand whether the introduction of representative actions really would promote the better enforcement of individual rights. As the noble Lord, Lord Lester, himself said, including a power in this Bill is really unnecessary. Section 7 of the Employment Tribunals Act 1996 already contains a power to make regulations on procedural rules which could be used to permit representative actions in equal pay claims in employment tribunals. We should think further about the use of this power. I note what the noble Lord said in his speech. I will reflect on that further.
Our recent research into how representative actions would work for equal pay cases has shown that this is a complex issue which generates polarised views, although not in this Chamber. Some of the issues we need to work through include: what happens when discrimination cases are brought together with other cases, such as unfair dismissal; the extent to which costs should be borne by the losing party in tribunal cases; how such cases should be funded; whether claimants should have to opt in or opt out of a representative action; how disputes between a claimant and the representative party should be resolved; and how damages should be awarded and distributed to a successful class of claimants.
There are also more issues to work through with regard to employment tribunals and the civil courts. This is because representative actions are to a limited extent permitted in the civil courts so that when introducing representative actions for things such as consumer and financial services cases, we will be building on an existing legal framework. There is no similar mechanism for grouping cases in the employment tribunals, so introducing representative actions for discrimination and equal pay cases in this jurisdiction would be a completely new departure.
More time is therefore needed to consider the potential impact on the tribunal service. In order to help us work through these issues, the Ministry of Justice will be doing some further work with the Civil Procedure
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In conclusion, we recognise that there are problems with systemic pay discrimination. We accept that representative actions may bring great benefits both for individuals bringing claims under the Bill and potentially for defendants faced with multiple claims, and we will continue to look at this issue and may consult in due course. Concern has rightly been expressed around the Chamber about the backlog of equal pay cases and we are looking at whether there is more that the Government can do to speed up the handling of equal pay cases. Indeed, we have already introduced a number of measures to improve their handling. For example, the Employment Act 2008 contains provisions to enable ACAS to target conciliation resources on equal pay cases, with most likelihood of early resolution, and removes time restrictions on ACAS conciliation after an employment tribunal claim is made.
We have also taken other actions in this field. But for the reasons I outlined earlier, I ask the noble Lord to withdraw his amendment.
Lord Lester of Herne Hill: I am grateful to the Minister and to everyone who has spoken in this short debate. The Women's National Commission said in its briefing that it supports the concept of representative actions as a means of speeding up equal pay claims and taking the pressure off individual women who often do not have the confidence to pursue claims against their employers, even if they are represented by unions. It continues:
"Unequal pay is often systemic rather than individual, requiring an overhaul of an entire pay system, not just compensation to a few brave individuals".
That was the point the noble Baroness, Lady Turner, made in her important speech.
The citizens advice bureaux network, which is a grass roots body throughout the country, deals helpfully with representative proceedings. I shall not go through what it says now but it makes extremely intelligent suggestions about how the procedure already existing in the civil courts under civil procedure rule 19.6 might be invoked. I should say to the noble Lord, Lord Hunt of Wirral, that I am not in favour of class actions American style; and I am not in favour of lawyers getting a big cut out of damages claims on behalf of women. I welcome the fact that the conditional fee agreement scheme is to be cut back so that greedy lawyers cannot do that. I am not in favour of any of that. All I am seeking is limited procedural reforms on the lines of what we already have.
On Friday morning I am going to address the Trades Union Congress annual meeting on equality, at which about 400 or 500 people will attend. I have had the privilege of doing so for the past 10 years and I always give a report on the progress, or lack of it, that we have made. I promise the Government that on Friday I shall tell the people there what has happened in this debate and I shall ask each and every one of them and their organisations to write to the Minister because I cannot think of any other way to do this. We
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Clause 79, as amended, agreed.
97: After Clause 81, insert the following new Clause-
"Time off for trade union equality representatives
(1) The Trade Union and Labour Relations Consolidation Act 1992 is amended as follows.
(2) After section 168A insert-
"168B Time off for trade union equality representatives
(1) Subject to subsection (4), an employer shall permit an employee of his who is-
(a) a member of an independent trade union recognised by the employer, and
(b) an equality representative of the trade union,
to take time off during his working hours for any of the purposes listed in subsection (2).
(a) carrying on any of the following activities in relation to members of the trade union employed by the relevant employer-
(i) analysing equality monitoring data and reviewing the impact of policies and practices on different groups;
(ii) providing information and advice on equality issues;
(iii) promoting the value of equality and diversity in the workplace;
(iv) investigating complaints relating to equality at work;
(v) supporting and advising trade union officials in the carrying out of any duties that concern equality issues;
(vi) attending equality committees or forums related to equality established by the employer;
(b) preparing for any of the activities listed in paragraph (a).
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(3) The employer is required to provide information to the representative to enable him to carry out the activities listed in subsection (2)(a)(i) and (iv).
(4) Subsection (1) only applies if-
(a) the trade union has given the employer notice that the employee is an equality representative of the trade union, and
(b) the training condition is met in relation to him.
(5) The training condition is met if-
(a) the employee has undergone sufficient training to enable him to carry on the activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact.
(b) the trade union has given the employer notice in writing that the employee will be undergoing such training, or
(c) within six months of the trade union giving the employer notice in writing that the employee will be undergoing such training, the employee has done so, and the trade union has given the employer notice of that fact.
(6) If an employer is required to permit an employee to take time off under subsection (1), he shall also permit the employee to take time off during his working hours for the following purposes-
(a) undergoing training and development activities which are relevant to his functions as an equality representative,
(b) where the trade union has in the last six months given the employer notice under subsection (5)(b) in relation to the employee, undergoing such training as mentioned in subsection (5)(a).
(7) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken, are those that are reasonable in all the circumstances having regard to any relevant provision of a Code of Practice issued by the Advisory Conciliation and Arbitration Service or the Secretary of State.
(8) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section.
(9) For the purposes of this section, a person is an equality representative of a trade union if he is appointed or elected as such in accordance with its rules.""
Baroness Gibson of Market Rasen: My Lords, in speaking to the amendment I return to the theme of equality representatives in the workplace which I raised in my Second Reading speech. I have cut this speech to a bare minimum in the interests of time.
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