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Our total investment in additional, early conciliation and improved advice services will be up to £37 million over the next three years. The Government also recognise the important contribution of other providers of mediation and ADR services in helping to settle employment disputes. They can help to resolve problems which are in their early stages, even before the point at which ACAS can offer its services. In my view that would be complementary to and accretive of what ACAS does and would not in any way substitute or undermine ACAS. They also have a role to play in raising the capacity of employers to manage their employees effectively and to deal with conflict in the workplace. We are currently working with alternative dispute resolution providers of all sorts to examine how they can best promote their services to employers.
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It is very important that the noble Lord, Lord Hunt, understands that that is where we are coming from. In no way are we seeking to do away with any opportunity for any form of mediation before a hearing and we certainly do not wish to undermine the excellent work done by ACAS.
Lord Wedderburn of Charlton: Perhaps I may ask the Minister a simple question, which he may wish to answer after today. Did ACAS, in view of its 100 years’ experience, suggest or ask for mediation to operate more in employment disputes? Alternative dispute resolution is now an industry and a very good one where it applies successfully; namely, in things like financial services and commercial law, where I have some experience of its work.
Lord Jones of Birmingham: I do not know, but I shall find out and I shall come back to my noble friend.
Michael Gibbons, in his review of dispute resolution in Great Britain, carefully considered the arguments for requiring mediation before an employment tribunal claim could be considered. That is the essence of this. He concluded that it would not be appropriate to recommend the introduction of mandatory or near-mandatory alternative dispute resolution. As my noble friend Lord Borrie said, we do not wish to make it a condition of a tribunal hearing that mediation has in some form taken place as a legal condition. Gibbons concluded that it would not be appropriate to recommend the introduction of mandatory ADR. Stakeholders who contributed to the review, including representatives of employees and employers, were firmly of the view that if mediation or conciliation were required in all or the vast majority of cases, regardless of their specific circumstances, then it would become just another procedural step in the process and would quickly become discredited. Most mediators would also agree that mediation is effective only when all parties enter into it voluntarily.
Michael Gibbons concluded that,
- “the Review is very reluctant to propose prescription or compulsion in an arena where it has failed so recently ... the Review has therefore concluded that the Government should adopt a voluntary approach to encourage and enable more use of Alternative Dispute Resolution techniques to settle disputes early”.
Having consulted on his conclusions, the Government share that analysis. Our approach is to replace the prescriptive requirements of the existing dispute procedures with high-quality advice and support to help people resolve their problems, in a flexible and non-statutory way. We believe that this carrot approach will be far more effective than the stick of statutory prescription.
These amendments would introduce a mandatory system of the kind that the Gibbons review decided against. They would make mediation or conciliation after a claim a required step before a tribunal could hear a case. They would also require ACAS to provide conciliation on request before a potential claim in all the circumstances.
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My noble friend Lord Wedderburn asked where the evidence was. When I was director-general of the CBI I toured the country listening to the problems raised by business. I was told of, especially in smaller businesses, many examples where people left their employment happily—indeed they often had a whip-round for the leaving present—and then, on the day before the statutory period came to an end, in came the claim. Often it came with a “without prejudice” letter that said: “We can wrap you up in all this for months at a huge cost in time and money. Pay us X pounds and it will all go away in the morning”. The system is open to abuse. That is why the Government brought in the original idea. We have to ensure that that does not happen. There is your evidence, my noble friend. I heard many times around the country from business that year after year the process was being abused.
Lord Wedderburn of Charlton: Does the Minister remember that in the year that the Employment Tribunals Service carried out its independent report on all possible types of unreasonable claims, business through the CBI suggested—as it has suggested this year—that something like 17 per cent of cases that went to tribunals were unreasonable and would never be there if only we used some other type of conciliation or mediation? In 1998, the Employment Tribunals Service found that, at the largest, the figure was 4 per cent. Is there any evidence whatever, except anecdotal evidence, that that figure has increased?
Lord Jones of Birmingham: I assure my noble friend that I am certainly on the side of 17 per cent. I am amazed that it is so little.
These amendments would make a claimant’s ability to access an employment tribunal conditional on an ACAS conciliation officer or independent mediator certifying that all parties had co-operated with the conciliation procedure, a serious obstacle to justice. An unco-operative employer could prevent a claim being heard simply by refusing to engage in the conciliation process. From my previous experience, I am the first to wish to see the employers’ burden of red tape and expense being minimised, but I am also the first to seek experience. If you have an unco-operative employer, I cannot see that this system would do anything to help that fairness argument. It is possible that it might even contravene the right to a fair trial.
The matter also raises practical problems; for instance, how will the independence of a mediator be assessed? Does the noble Lord, Lord Hunt, propose some kind of additional regulatory regime to determine that? I would have thought that many Members of the Committee would not wish to add to the burden of regulation on business. In the light of what I have said, I hope that the noble Lord will agree to withdraw the amendment.
Lord Campbell of Alloway: I wanted to hear what the Minister had to say before getting up and saying anything. From what little past experience I have of trade unions, disputes, ACAS and this and that, I was
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It seems to me that this has to be left as a voluntary position, free from statutory compulsion. In my experience, there were union/union disputes and union/employer disputes but I was never instructed in an employer/employee dispute. However, in disputes where I was instructed, the noble Lord, Lord Wedderburn, was usually the junior on the other side, and on many occasions his leader, who later became a High Court judge, and I used to sort out the mediation process between ourselves and it worked. When it did not work, we were in the position referred to by the noble Lord, Lord Wedderburn, where one side was bound to win and one side was bound to lose. Most of us at the Bar did not look at it in that way. It was an attempt at mediation and it very seldom worked. When it did, it did, but when it did not, the court decided and that was that. The trade unions have always observed the orders of the court.
I am sure that the amendment is well intentioned, and I think that it was the noble and learned Lord, Lord Woolf, who was referred to as commending mediation. However, he was really more concerned with commercial cases than employment law cases, and I do not believe that he would have intended what he said to go beyond the sphere in which he practised and sat as a judge. Therefore, I am grateful for what the Minister said. I think he is right on this and I am bound to support the Government’s attitude.
4.15 pm
Lord Hunt of Wirral: The responses of my noble friend Lord Henley and the Minister have been well worth waiting for. I was motivated to move this amendment to highlight the importance of mediation. I greatly respect all the experience of my noble friend Lord Campbell and the noble Lord, Lord Wedderburn, on both the practical and the academic side, but the noble Lord, Lord Wedderburn, should not be too patronising about alleged lack of knowledge. I do not think that he looked up when he asked us to put up our hands concerning the Conciliation Act 1896. Had he done so, he would have seen us all nodding vigorously. I recall how the Conciliation Act 1896 built on the very valuable history of conciliation boards being developed at the time in key industries such as the coal trade.
Then we had the Arbitration Act 1889, which moved things in the direction of arbitration. The Conciliation Act 1896 was very important because it disallowed Section 3 of the Arbitration Act 1889 and therefore built up over the years an immensely valuable series of conciliation experiences. Therefore, I do not think that the noble Lord, Lord Wedderburn, should presume ignorance on our part. We have all looked at the history of this.
I particularly wanted to highlight the role of mediation in order to explore what the Minister told
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Mediation or conciliation must not become just another procedural step. It must be informal and with the wholehearted consent of all the parties who are then able to resolve their disputes without troubling the courts of law or the tribunals. That was the purpose behind my amendment, so I greatly welcome what the Minister has said.
Lord Wedderburn of Charlton: When the noble Lord comes to rethink the amendment, will he again consider his remarks about the work which has been done, which at one point he seemed to dismiss as—in a nasty sense—academic? The 1954 book by Geoffrey Sharpe and the one that Paul Davies and I wrote were both based on groundwork. We spent two years going around the Ministry of Labour and various industries in order to understand that ministry’s evidence to the Donovan commission—the third work that the noble Lord should read.
I have no ideological objection to mediation. Where it works, it is very valuable. It works in financial services and some parts—not all—of commercial law, but ACAS has shown that it does not want to choose it for employment disputes and there are good reasons for that. That is not an academic judgment, but that of the people who actually do the work with the workers and employers at the place of work. I hope that the noble Lord will look at his speech and rethink how he dismissed the published books.
Lord Campbell of Alloway: There is no difference in principle at the root of our disagreement. I wholly accept the intendment of the amendment. However, I worry that it could have an effect which it does not seek, and that it appears that ACAS will now enter a far more generic role with its thing on the internet and
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[The Sitting was suspended for a Division in the House from 4.26 to 4.36 pm.]
The Deputy Chairman of Committees: Does the noble Lord, Lord Campbell of Alloway, have anything further to say?
Lord Campbell of Alloway: No, I have not. I am grateful that the Minister will deal with the problem I mentioned.
Lord Jones of Birmingham: I can give the noble Lord, Lord Campbell, the assurance that he sought. Nothing being proposed will stop ACAS suggesting mediation to the parties in dispute as one of the solutions. It will not fetter that. In fact, if anything, we are after more mediation in all forms at all times.
Perhaps I may bring this to a close by saying that I have listened to the noble Lords, Lord Hunt, Lord Campbell and Lord Henley, and my noble friends Lord Wedderburn and Lord Bach. I am a lawyer who never got on his feet in court but sat in smoke-filled rooms the whole time and I am now in the company of so many advocates who have so much experience of this at international level and who are an example to us all. I am reminded of what the great FE Smith said, just before he came into this place as Lord Birkenhead. One day, he was summing up, and afterwards the judge—sadly, history does not say who he was—said, “Actually, Mr Smith, I am none the wiser”, to which FE Smith replied, “That may well be, my lord, but you are better informed”.
Lord Hunt of Wirral: It was certainly well worth waiting for the Minister to speak again to hear him say clearly that the Government are in favour of all forms of mediation at all times. I welcome that. I agree with the second point made by my noble friend Lord Campbell. There is nothing between us. We must scrutinise the legislation to make sure that the position we want to achieve is brought about as a result of this legislation. If that has not yet been done, we must make sure we improve it.
To the noble Lord, Lord Wedderburn, I merely say that I await his reading list. He said that I needed to read, and I am always willing to learn. He mentioned several books, and I would be grateful if he could let me have a full list. I will endeavour to read them all before I return to this subject on Report.
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Lord Wedderburn of Charlton: The noble Lord is very kind, and I promise to send him a much more extensive reading list than I mentioned today. Reading lists of people who have experience are worth while. I must tell the Committee that the arguments put forward today are very close to directing ACAS to engage in mediation when its experience since 1896 suggests that that is not the best method. ACAS is independent; it is not subject to direction, and its independence is something that your Lordships ought to be very careful not to infringe.
Lord Hunt of Wirral: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 and 19 not moved.]
Baroness Turner of Camden moved Amendment No. 20:
When conciliation is attempted but this fails to produce a settlement, the claimant may require that steps are taken to ensure that Tribunal proceedings are commenced without delay.””
The noble Baroness said: As I said earlier, many of us agree that fair and reasonable procedures should be in place between unions and employers so that possible disputes, both individual and collective, can be dealt with at workplace level. In passing, I thank the Minister for sending me a copy of the ACAS draft code, which details disciplinary and workplace arrangements.
I am very glad to have that. However, it is not always possible for these procedures to work. That is particularly the case in loss-of-job issues. As I indicated in my Second Reading speech, job loss is for many a traumatic event; it can lead to loss of self-esteem, a breakdown in self-confidence and can sometimes make securing alternative employment difficult. It can even sometimes lead to marriage breakdown. The individual concerned is often not interested in alternative dispute resolution, no matter how well intentioned. He or she will not be satisfied and will not feel that justice has been served unless they have had their day in court. It is for that reason that I spoke as I did at Second Reading and have tabled this amendment.
The individual must not come to feel that procedural attempts are being made to prevent the case getting to the tribunal. Of course, a settlement must be made—everybody agrees with that—but the individual must be assured that the procedures are not being unnecessarily prolonged so that a tribunal hearing is delayed or perhaps avoided altogether. The amendment gives the individual the right to insist that enough is enough and that his or her case must be heard by a tribunal. Only in this way will individuals in the position which I have described feel that the system exists to protect them and to provide fairness and justice.
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I hope that the Government will accept my amendment. If they do not accept this wording, then perhaps they will accept the principle so that alternative wording to the same effect can be produced on Report. I beg to move.
Lord Campbell of Alloway: I wholly accept the principle of the amendment but I am puzzled about the steps to be taken. What sort of steps does the amendment refer to? Is it an application to the High Court to order the tribunal or to give a date? How do you make that application? In other words, I agree with what the noble Baroness wants but I do not know how she wants it done. There is no time limit, which is right; I do not think that you should have a time limit. The amendment says, “without delay”, but somebody then has to decide whether there has been too much delay. There is no provision to make an application to the High Court or to the appeal tribunal. That could be the appropriate way, but you need some means to implement the steps.
Lord Wedderburn of Charlton: I support my noble friend’s amendment but with one reservation. I may be unduly sensitive to this because I had to apologise for not doing it at the beginning of our proceedings. Getting a tribunal judgment without delay after conciliation steps and the like have been taken is in accordance with Article 6 of the European Convention on Human Rights, which, if I may paraphrase, says that in the determination of civil rights everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
The convention on human rights assumes that the answer to the question asked by the noble Lord, Lord Campbell, can be found on the ground within a reasonable time. I cannot say what a reasonable time is in any individual dispute; someone will have to decide. My noble friend gives the individual claimant the right to say he has had enough. I do not think that that would impair ACAS’s conciliation work, which the Committee will have seen that I am very keen to support on the basis of 100 years’ experience. Article 6 says that you must have a fair and public tribunal hearing within a reasonable time. That is made clear and substantive in my noble friend’s amendment.
4.45 pm
Lord Jones of Birmingham: I sympathise with the intention behind the amendment, but the results would not be workable in practice. I agree that, where the possibilities of conciliation are exhausted, it is important that a hearing should take place quickly to enable resolution of the issue—not just that it is done, but that it is seen to be done. It removes the uncertainty for both parties and enables them to move on positively from the events that gave rise to the dispute. People call it getting on with their lives.
At present, there is a gap between the receipt of a case at the Tribunals Service and the listed date for the relevant hearing. That enables ACAS to attempt conciliation. ACAS receives all claim forms and offers conciliation to all claimants. The mandatory fixed
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