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4 Feb 2008 : Column GC437
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Monday, 4 February 2008.
The Committee met at half-past three.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
Employment Bill [HL]
(First Day)
The Deputy Chairman of Committees (Lord Brougham and Vaux): Good afternoon. Before we begin, if there is a Division in the Chamber—which there may well be—the Committee will adjourn for 10 minutes. I will indicate that a noble Lord should stop speaking, in mid-stream if necessary.
Baroness Turner of Camden moved Amendment No. 1:
Section 209 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (general duty to promote improvement in industrial relations) is amended by inserting at the end “and to encourage the negotiation of agreements between employers and independent trade unions on procedures for the resolution of disputes at work”.”
The noble Baroness said: The amendment in my name and that of my noble friends is about the ACAS role in the negotiation of procedural agreements. Emphasis has been placed in discussion of this Bill on the desirability of negotiating settlements of disputes actually at the workplace. No one would disagree with this as a desirable objective, provided that the arrangements are fair and seen to be so by those participating.
As a former trade union official, I believe that such arrangements can only be effective when they are the result of negotiations between the employer and an independent trade union. However, not every employer is able to come to such agreements without outside help. This is where ACAS has an important—indeed, essential—role. It is surely a function of ACAS to endeavour to help those who need this assistance.
The Government may well say that this sort of function is readily understood and already accepted. However, it is important that it should be written into legislation as a function that ACAS simply must perform. It is not sufficient for it to be said that this is something to which ACAS must have regard, as indicated in previous legislation; it is a basic requirement. Much of this Employment Bill is about how workplace disputes are handled. This is therefore a key requirement, and should be in the Bill.
Our wording acknowledges the role of independent trade unions in ensuring that procedural arrangements are in place and handled appropriately, and that cover is given to the members represented by them. This is an important requirement. I hope that the Government will be prepared to accept it. I beg to move.
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Lord Henley: Briefly, we will obviously be discussing ACAS later on when we come to the code of practice. At this point, I thank the noble Lord, Lord Bach, for finally getting a letter to us dealing with some of the questions raised at Second Reading; it would be useful to mention this on the first amendment. I note that the noble Lord kindly sent his letter to my noble friend Lady Wilcox on 31 January; I received my copy this morning. Sadly, my noble friend has not yet received her copy, but that does not matter because she has seen mine. No doubt the noble Lord will want to chase that up in due course.
Again, we will be dealing with this when we get to the code. The noble Lord, Lord Bach, said that he would do his utmost to make the draft ACAS code available to the Committee. I was intrigued that he used those words because, having said that he would do his utmost, he then attached it to the end of the letter. It might have been easier if he actually said in the letter that he had included it, because I thought that it was still not there.
I am interested in what the noble Baroness says about her amendment. It seems to expand the role of ACAS somewhat unnecessarily. I do not see why we cannot leave things as they are; leaving it to the employers and employees to negotiate what they wish in terms of providing the appropriate procedures for the resolution of disputes at work.
Lord Wedderburn of Charlton: I am sure that I can associate everyone on these Benches with my thanks to my noble friend Lord Bach for providing the draft of the ACAS disciplinary and grievance code. As regards this amendment, at Second Reading, the Minister said that,
- “around 75 per cent of claims made to an employment tribunal are resolved before reaching a hearing—a substantial portion with the involvement of ACAS”.—[Official Report, 7/1/08; col. 637.]
I take it to be common ground on this Bill that disputes at work are best solved by procedures at the point of work, informally and very often with the help of ACAS. It seems quite natural therefore to put up the status of that procedure to a central function of ACAS rather than a minor one which the legislation at the moment suggests. I therefore support the amendment.
Lord Campbell of Alloway: I totally accept that it is a basic requirement and, as such, it is well understood. This is not the sort of thing that I feel I have to oppose, but I do not really support it. I do not think that it is necessary. I do not see why we cannot leave things as they are, because ACAS is doing a splendid job. It knows what to do and I do not think that it needs any help from us. I rather like the way in which my noble friend Lord Henley put it. I would not always support him because he happened to say something, but I do on this occasion think that he got it right.
Lord Hoyle: In order to not have to do it every time I get up, I declare a previous interest as president of one of the unions that have formed Unite—the
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In this amendment, we are trying to ensure that there is no degrading of the role of ACAS and that what it does is central. Members say that they are looking at what we are doing, not that they are opposed to it. So I hope that what has been put forward will be pretty unanimous. We are not trying to change anything, but want to ensure that ACAS still has a central role to play in any negotiation that takes place. It is in the interests of all of us, whichever side we are looking from, to get a better Bill and a better understanding. The role of ACAS is not in any way diminished. I am very pleased to say that I am here to support the amendment standing in my name, along with my colleagues.
Baroness Gardner of Parkes: I would like to ask a couple of questions. I thought that the remark by the noble Lord, Lord Hoyle, that he did not want to see ACAS degraded was very interesting because there was no suggestion of that—the noble Baroness, Lady Turner, clearly spoke about making ACAS stronger. Therefore, I would like clarification on that point: what do the Government think that this amendment would do?
The noble Lord, Lord Wedderburn, said that many cases are now settled, which is quite true. The new pilot scheme that has been in action, where the employment judge has been mediating in cases, has been very effective. Indeed, those who have acted in that role have been impressed by the success of the scheme. Would this amendment in any way cut across that, because this is a good system that is working at the moment?
The Minister of State, Foreign and Commonwealth Office & Department for Business, Enterprise and Regulatory Reform (Lord Jones of Birmingham): First, I assure my noble friend Lord Hoyle that I am delighted to be here today to carry on the work that we started in the House. I am off again banging the drum for Britain on Friday, and all next week I shall be in six different states of the United States selling the stuff that British companies sell all over the world.
It will come as no surprise to hear that I oppose the amendment. I assure the noble Baroness, Lady Gardner, in direct response to her question, that the amendment would serve to oblige ACAS to promote agreements between an independent trade union and an employer even where it would not be appropriate so to do. It would also restrict the ability of ACAS to conclude voluntary union recognition agreements.
The current operational policy of ACAS implements its general duty,
Where asked for advice or help in establishing or revising procedures for the resolution of disputes at work, ACAS encourages employers to involve their
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As well as providing that general advice, ACAS offers to chair joint working parties of management and employee representatives to draw up procedures and guidance, and offers to undertake joint training of management and employee representatives in the fair and effective operation of such procedures. In my former life as director-general of the CBI, I was involved in the work of ACAS in many ways and I share what I think those on all sides of the Committee feel, which is that we should say “well done” for the good work that is done. I saw it at first hand and it was excellent.
ACAS stresses to both parties its experience. Without such involvement of employees and their representatives, procedures are likely to be regarded with suspicion by those employees and therefore in danger of not operating effectively to prevent or resolve disputes at work. I agree with my noble friends when they say that the best way to resolve a dispute is at the workplace on the day or very shortly thereafter. There will of course be circumstances in which promoting negotiations between an employer and an independent trade union will not be appropriate. Those could include, for example, when no employee belongs to a union or where some other organisation is trusted by staff and employers to carry out such discussions. Requiring ACAS to promote negotiations between an employer and an independent trade union, which this amendment would do, would reduce ACAS’s flexibility to offer help based on the particular characteristics of an individual dispute in an individual workplace. It would take the individualism and therefore the application out of ACAS’s present remit.
In addition, where an employer does not recognise the trade union, the negotiation of agreements such as those proposed in the amendment could be viewed as a limited form of recognition of the trade union by the employer. That would be in direct conflict with the factual happening on the ground. For ACAS to have a specific duty to promote such agreements could put it in the position of being seen to encourage the recognition of trade unions in organisations where they currently do not exist. That is not the role of ACAS, nor would ACAS want that role. We believe that this might make it even more difficult for ACAS to help both parties in dispute to conclude a voluntary recognition agreement. It would be unhelpful for ACAS to be seen as partisan in such discussions. I remind noble Lords that in 2006-07, ACAS conciliated in 147 such disputes and provided in-depth advice in a further 22. I hope that in the light of what I have said the noble Baroness will withdraw her amendment.
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Baroness Turner of Camden: I thank the Minister for that response, and I thank my noble friends who participated in this debate. I am sorry that the Minister feels unable to accept the amendment. I was aiming to ensure that ACAS had a proactive role in industrial relations; in other words, that ACAS would participate actively to ensure that industrial disputes
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Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 2:
Subject to section 4, nothing in this Act or in the Tribunals, Courts and Enforcement Act 2007 (c. 15) (other than paragraph 42 of Schedule 8 to that Act inserting a new section 7B (mediation) into the Employment Tribunals Act 1996 (c. 17)) shall affect the role and functions of the lay members appointed to—
The noble Lord said: In moving Amendment No. 2, I shall speak also to Amendment No. 5. It might have been better if they had been coalesced into one amendment, but circumstances into which I shall not bother to go prevented that. These amendments are concerned with the essential framework of employment tribunals. Since a Member of the Committee said to me that he did not see why I was moving such amendments here, I shall explain at what they are directed. Noble Lords will see that Amendment No. 2 aims to preserve the role and functions of lay members of employment tribunals, with the exception of a matter that arises from the Tribunals, Courts and Enforcement Acts 2007, to which we will come in Amendment No. 16. Amendment No. 5 states that nothing in that Act or the Bill shall affect the relationship between the legal chairman and the lay members, and especially their equal status in the work of the tribunal. I emphasise the equal status of the three members of an employment tribunal.
Employment tribunals date from the 1960s. In 1967, they had one major jurisdiction: redundancies and redundancy pay. Now, if noble Lords look at page 3 of the Bill, they will see a vast list of jurisdictions in which the tribunals work. We must realise that age discrimination cases have yet to spill over in their many floods to the tribunals—we will see that in the next year when we see what the European Court of Justice makes of the real meaning of age discrimination—and the logjam of equal pay cases that has built up so high will also perhaps come to the tribunals. It is said that the work of the tribunals has become more complex and some would say it has become more legalistic, whether in a good or bad sense. That is not the fault of the tribunals, but of Parliament which requires them to cope with this new list of jurisdictions. They were and are, with the Employment Appeals Tribunal, the final arbiters on employees’ rights and a central part of employment law and practice. The Ministry of Labour’s far-sighted evidence to the Donovan Commission in 1967 suggested what was then thought to be rather a radical thought—that the tribunals, then known as industrial tribunals, would
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Employers, especially large ones with modernised systems of disputes procedures that they have negotiated at work, have accepted the place of tribunals over 40 years or more, even though some others—mainly small employers—have always disliked their existence, as far as one can see. This is common ground: if one can solve a dispute at the place of work without going to a tribunal, that is of course much better. The ACAS code, for which we are all grateful to see a draft, points in that direction.
I declare an interest, as in a formal and practical sense I have practised before tribunals—the Employment Appeals Tribunal—and appellate courts from them. I have also come close to much of the research exercise that has preceded the many statutory refinements and amendments to their work.
There is a widespread concern that the essential character and framework of the tribunals is coming under pressure to change. Clause 4 is a small illustration of the change but, if it were alone, one would not have a great deal of concern about it. The clause contains the fast-track procedure in which the chairman sits alone; we have amendments to its wording and certain concerns about its meaning, but Clause 4 of this Bill is not the only matter that causes concern. Much of the problem comes from a different department, which does not inherit the characteristics that the Department for Business Enterprise and Regulatory Reform inherits from previous ministries in dealing with employment tribunals. The other arm of the pincer, as it were, comes in the form of pressures from the Ministry of Justice, which is inhibited in the Tribunals, Courts and Enforcement Act 2007—an Act that is famous for its legal thicket of 23 schedules of mass prose. It comes, too, from the Ministry of Justice’s 2008 paper entitled Transforming Tribunals.
To the Ministry of Justice, any tribunal can be discussed under the same heading. Its documents show that it is prepared to discuss mental health tribunals, taxation tribunals, land tribunals, asylum and immigration tribunals, employment tribunals—and anything else that happens to have the right semantic title. Of course, all tribunals should be open, impartial and fair; that far, one can talk for all tribunals. But the social and legal functions that the various tribunals fulfil are very different.
Concerns at the time of the passing of the 2007 Act were thought to be relaxed after the noble and learned Lord, Lord Falconer of Thoroton—the then Lord Chancellor—said, in introducing the Bill on 29 November 2006, that the Bill,
- “will bring tribunals dealing with, for instance, social security, tax, mental health and special educational needs into this new structure”.
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“The Asylum and Immigration Tribunal, the Employment Tribunals Service and the Employment Appeal Tribunal will retain their existing legal frameworks, acting as separate pillars of the new structure”.—[Official Report, 29/11/06; col. 261.]
That was understood by many people to mean that the Ministry of Justice did not intend to legislate concerning the internal functions of a tribunal, especially its tripartite character. My noble friend Lady Gibson of Market Rasen, who most unfortunately cannot be with us for the passage of this Bill, expressed exactly those concerns at Second Reading of the 2007 Bill. The basic framework of employment tribunals is, and should remain, tripartite and within a framework of the three members who compose tribunals: the chairman, with adequate legal experience, and two members from two panels, one a representative of the employer and the other a representative of the employee.
That has been the case for so many decades now that it may be thought somewhat odd that the question should even arise. It arises because the Ministry of Justice’s paper, Transforming Tribunals, which has still to be consulted about, makes it quite clear in chapter 9 and schedule D of its text that a review and a radical reform of the composition of all tribunals is to be undertaken largely against the test of whether they are value for money and against the test of how much they cost.
In none of the Ministry of Justice’s papers are the separate functions of immigration and asylum tribunals, and indeed the employment tribunals, maintained with clarity. In fact, things have already begun to happen by administrative means under the 2007 Act. The legally qualified chairman is now called a judge; the lay members of the tribunals are now called non-legal members. That is a reason that concern has mounted. So that the Committee does not think that I have made all this up, I am bound to quote a document from the Council of Employment Tribunal Members’ Associations, which fears that the tendency is to remove the status of the lay members—sometimes called the wing persons; one employer and one employee—compared with the legally qualified chairman who is now called a judge. Perhaps I may read the 2008 document to put it on the record:
“When industrial tribunals were first introduced their purpose was quite clear: to allow employer/employee disputes to be heard and decided in a forum where there was ease of access, less formality than in the court system and the knowledge that the dispute was being heard by a panel of three who would be sufficiently experienced in industrial matters, and the law, to understand what was happening. The specialist knowledge was key to the credibility of the tribunal. The tripartite nature of what are now Employment Tribunals was, and remains, crucial to the system. A legally qualified chairman together with members representing both sides of industry was intended to ensure fairness and an informed understanding of the problem in question. All have equal status and play an equal part in the process of decision making. Legally qualified Chairmen do not generally have direct or practical experience of industry and the workplace, and the other members complement this deficiency. Although members are selected from both sides of industry, in the tribunal they are not there to put forward a particular point of view but to play an impartial role in deciding the case”.
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