Baroness Turner of Camden
Main Page: Baroness Turner of Camden (Labour - Life peer)Enterprise and Regulatory Reform Bill
Baroness Turner of Camden Excerpts(11 years, 11 months ago)
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“( ) Should the intervention of the conciliation officer not result in an agreed settlement, the claimant may proceed immediately to an employment tribunal.”
Baroness Turner of Camden
My Lords, in moving Amendment 17, I shall speak also to Amendments 18, 19 and 20, with which it is grouped. I put down these amendments to oppose this section of the Bill following the contribution I made at Second Reading because I feel that in many respects the Bill represents an attack on employment rights. My amendments are intended to enforce what I then said.
I have a great deal of respect for ACAS. As we know, Clauses 6 and 9 introduce early ACAS conciliation with regard to workplace problems. I do not oppose early ACAS attempted conciliation, but the Bill includes further steps before there can be a tribunal hearing. I think that these steps are intended to make it as difficult as possible for an employee to proceed further. That is why I propose an amendment which allows an employee, if ACAS intervention fails, to proceed immediately to a tribunal.
If the skilled intervention of ACAS does not produce a settlement, it is unlikely that further stages with different individuals will do so. This is particularly the case where it has to deal with the most difficult of disputes—those concerned with unfair dismissal. I gather that the Government are currently looking at a system of rapid resolution via ACAS for straightforward money-based claims such as alleged underpayment, perhaps, or failure to pay the minimum wage, and that sort of issue which could be dealt with very swiftly and easily by ACAS. I have no objection to that sort of procedure and neither, as I understand from its briefing, has the TUC.
However, unfair dismissal is a much more complicated issue. Failure to maintain oneself in employment can be life threatening for some people, and for many people to lose a job is a disaster, which often results in domestic upheaval and breakdown. It has occasionally resulted in suicide. Certainly, it leads to a lot of disturbance and heartache for the individual. It is a very life-changing situation for many people. For that reason it has to be treated differently from the kind of straightforward money issues that we have been talking about. Therefore, it is very important that if there has been an attempt by ACAS which has failed in a situation of that kind and the conciliation officer has not produced an agreed settlement, it should be possible for the claimant to be able to proceed immediately to an employment tribunal, as my amendment says. This is a special kind of case; it requires that sort of treatment and the individual should not feel that masses of other steps are in the way before he gets before a tribunal and gets his case heard.
For that reason I hope that the Government will be prepared to look at this amendment sympathetically because we are talking about individuals who are often very much at the end of their tether if they have been dismissed, perhaps after a long period of work for a particular company with no future alternative employment available. This is a very dire situation for many people and I do not think that a further set of steps should be placed in the way of them getting a tribunal hearing. I beg to move.
Lord Marland
My officials have suggested that I clarify as I was not perhaps as clear as the noble Lord wanted. They have passed me a note saying that the clock stops when the claim is received by ACAS and starts again when the certificate is received by the claimant. Is that as clear as mud?
Baroness Turner of Camden
I thank the Minister for the very sympathetic response he made to the amendment. I welcome his statement that the Government would also welcome a speedy resolution of these issues. I shall consider very carefully what he said. It seems to me that we could perhaps work towards a form of wording so that in the kind of cases that I have been particularly concerned with, a speedy resolution would be possible. That is terribly important in this kind of case, in particular. I will withdraw the amendment now, but will probably come back on Report with a different form of wording. I beg leave to withdraw the amendment.
Baroness Donaghy
I was having second thoughts on whether I should speak to this amendment because I would not really be doing so with my former ACAS hat on. However, that should not prevent me commenting.
The proposal for legal officers has been dusted down off the filing cabinet many times. I was a member of industrial tribunals, as they were then called, from 1974 to 1989, and therefore have had a long involvement on both sides of the fence on this. I am sure that the idea of legal officers was discussed in the 1970s, 1980s, 1990s and the noughties. In fact, the idea must be so old that it must be growing hairs like gooseberries. I congratulate the Minister on again bringing out this item from the filing cabinet. However, I should point out that that does not make it an antique worth buying.
This is intended to be a cheap way of obtaining legal services, and I suspect that the legal profession will wake up to this one quickly. I suspect that it will be disliked by employment judges; equally, there is a danger that it could second-guess the conciliation process at ACAS. Even more equally, in a time of austerity when the Government are seeking to cut the number of public servants, I should have thought that it was fairly unlikely that a whole platoon or army of these, dare I say, young law graduates or whoever will be employed by any department to do this job. And, if so, which department would it be? Will they be part of the Employment Tribunals Service, or will they be direct employees of BIS or another adjunct of the Ministry of Justice?
I am sorry that in this case I cannot be very enthusiastic but I support the amendment because I think that it may at least give some idea of government thinking on this matter. However, I give a warning that, even though this measure has been recommended many times, the devil is in the detail and the practicalities usually overcome any action on this.
Baroness Turner of Camden
My Lords, I originally intended to delete from the Bill any reference to this form of officer. However, I must point out that the Law Society, which has also briefed me along with the TUC and many other bodies, has already expressed some concern about this provision. It says:
“The Bill provides a new power for Legal Officers to make determinations in some (to be specified) Employment Tribunal Claims. The Society recognises the potential for Legal Officers to perform some duties, but stresses that they must be suitably qualified”.
It is clearly concerned that we will have people who are not suitably qualified making decisions on some of these highly complex potential arbitration cases. Therefore, I echo what my noble friend Lady Donaghy has said: the Government have to be rather careful about this. Given that specialist advice warning, I hope that they will look at it very carefully.
Lord Marland
Members on the Benches opposite make some very timely comments on this amendment because at the moment the Government are reviewing the response to the consultation. One of the elements of that review is rapid resolution, which involves legal officers, so we will obviously consider the points that the noble Baronesses and the noble Lord, Lord Young, have made. As I say, they are timely.
I say in response to the noble Lord, Lord Young, that decisions of a legal officer would be reviewed by a judge, so there is someone looking over their shoulder, and any decision by a legal officer could be reviewed or, indeed, reversed within the existing provisions in the employment tribunal rules. I think we have a level of comfort there but, as I said, this is a timely amendment. It is not something on which we have resolved our position. Noble Lords have identified a number of areas of concern. As we are in the middle of a consultation process, we will obviously take those into account. We will, I hope, have come to our conclusion by Report, when we can talk further and explain what is going on. On the basis of those comments, I hope that the noble Lord will withdraw his amendment.
Lord Monks
I support this amendment. Clause 7 is one of the key clauses in this part of this rather complex Bill, and I object to it. It rips up, rather contemptuously, several decades of history in the employment field.
There is general agreement that worker and employer representatives on tribunals do a good job. The original idea was from the Conservative Party, way back in the 1960s. From my experience over many years, I know that presidents of the Employment Appeal Tribunal have often said that the views of lay members were crucial. Lay members had a sense of what was going on and a feeling for the issues in the workplace from which judges would inevitably be rather distant. Often, judges followed the view of the lay members. They made sure it complied with the law, checked that there was nothing wrong and would adjudicate if there was a disagreement between the two, which often there was not. Very often, there was consensus between the employer representative and the worker representative. They were not a marginal presence sitting on the edge of the legal proceedings; they were right in the middle of them and central to them.
I acknowledge that times have moved on and tribunals and the Employment Appeal Tribunal have become more legalistic than we hoped. We hoped there would not be eminent QCs and eminent juniors on the kind of case that the noble Lord, Lord Brooke, referred to, that these things would be sorted out more cheaply and informally before a tribunal and that we would see everything done in a much less legalistic and more cost-effective way. However, over many years, the legal profession has colonised the tribunal system to a regrettable extent.
The lay members on the employment tribunals, originally, and on the Employment Appeal Tribunal have tried to push that back a little, keep its feet firmly on the ground and keep the costs of the whole exercise down. Clause 11 says that we are giving up on that and that the legal profession can have the lot, at least the ones that manage to get round the Grand National course and actually get their case there without falling at several Becher’s Brooks on the way. Inevitably, when they do get there, the whole thing will be more legalistic. That is not a criticism of the judges—I have seen some very fine ones in the Employment Appeal Tribunal, and elsewhere—but the whole experience of the EAT will be much changed and made much weaker than needs to be the case.
I have been thinking about how judges might operate this, because the Minister would say, “Well, if he wants one, the judge can have a couple of wing people—even four, we are expanding it”. It could look like the Nuremberg war crimes tribunal. “Why do we need an extra two?”. I do not know where that came from, as we have never felt that one from each side was not enough. I would be interested to know where it did come from.
I can see the first judge who comes forward after this Bill goes through saying, “I think I need two lay helpers for this particular case”. I do not think that many judges will feel comfortable doing that. Such judges would be regarded as a wimp by their peers, who will ask, “Why do they need a couple of people holding their hand when dealing with these cases? What effect is this going to have on the budget, if we have to pay some expenses for the lay members? Is this not all about cost savings, economies and making sure that the cuts work effectively in this area?”.
I am interested in the Minister’s reply to these points. I hope that the Government will pause before they go further down this road. They have already done it, in a way, to employment tribunals. The same provision is already there and I suppose it will be argued that this is a logical continuation. However, it is the continuation of a bad practice; and it is in the peak body this time, which makes it qualitatively different.
Baroness Turner of Camden
My Lords, we have got on to talking about Clause 11, which I opposed at Second Reading on the basis that it was quite unnecessary. I did not really understand why the Government decided to proceed along these lines because the tripartite system that we have works extremely well. The lay people who serve in it are highly respected and in no way put off by the somewhat legalistic environment. They are quite well able to look after the whole situation as concerns workplace arrangements—they know about workplaces, which is why they are appointed to serve on the tribunal.
I still do not really understand why the Government believe that a judge sitting alone on unfair dismissal cases is likely to be more competent. Do they expect him to find more ways to go against the employee? Have they decided that they want a judge sitting alone because the decisions are more likely to be the kind that the Government would like? We know that they are not very keen on tribunal hearings anyway. I want to know why the Government think that this is a good idea.
In the document that the Government have already issued, they have indicated that the points at issue would be legal points, which is why it would be a good idea to have a judge sitting on his own. However, I remind the Government that they have already introduced LASPO, which means that there is no access to legal aid in employment cases. In fact, the individual who is not represented by someone he can afford to appoint to look after him, if he does not have a union to support him, will be entirely on his own and will have no access to any form of legal aid because LASPO has decided against it, as far as employment cases are concerned. An unfortunate individual such as this would have only himself to rely on before a judge sitting on his own. That is not a good idea. It would be far better to have lay people still operating, and I very much hope that the Government will reconsider their position here because it is not fair. It means that individuals will very often, if they are taking up their case themself, be left without anyone to represent them. That is not a good idea if they are going before a judge sitting on his own who is guided simply by legal principles, not by what happens in a normal workplace.
Baroness Brinton
I have slightly different concerns about Clause 11, but they stem from the same starting point. They are about why the Bill proposes to give the judge much more power to decide on whether a panel should sit with him or her to hear an appeal.
Given that the practice is already there, evidence shows that lay people are brought in to assist a judge, usually on a controversial decision that requires expertise from both the employer and the workforce background. As has been mentioned by other noble Lords, lay members of these appeal panels frequently are respected by both parties. That balance has been an absolute strength of the appeal panel. I am struggling to see why it should become automatic that the judge would sit on his or her own.
I rather pointedly said “his or her own” because I also want to raise the issue of the diversity of an appeal panel when a judge is sitting on his own—it is usually “his” own—and diversity has, ironically, been provided by the lay members. Can the Minister give us some indication of the action the Secretary of State would require to ensure that there was diversity—essential in employment hearings—in appeal proceedings if this process becomes commonplace?
I come back to my initial point: I do not understand why the balance has been tipped from the current situation, in which when a difficult decision has to be made, judges are absolutely clear that they should bring in people, to a proposal in the Bill that presumes that the judges are likely to want to work on their own initially.
Lord Marland
Employment judges know as much about these things as we in this Room do. They have been doing case after case. We are presupposing that judges know nothing and that they are incapable of making decisions based on the rule of law on a subject that is determined by what the law says, not by: “Oh by the way, you must understand that there are extraneous circumstances that may affect the lay person, who quite rightly is sympathetic to them”.
Ultimately, the rule of law prevails. It is the interpretation of the law that prevails, and therefore it is a judge who is qualified to interpret the law, so I do not agree that there is a huge import in having lay members. Of course, as the noble Lord, Lord Monks, who knows so much about this subject, quite rightly says, the judge has the opportunity to choose a panel, and we can get into arm-to-arm combat on whether it is two or four people. Whatever one says, you are damned, in a sense. The judge has the opportunity to have lay members if he thinks there are circumstances he does not understand or working practices with which he is not familiar. Ultimately, these people are being judged on what the law says by someone who can interpret the law, not by people who may or may not understand the law in some circumstances. I am afraid I am not persuaded in this instance—by people who have great knowledge in this subject—that it is in the interests of either party to have lay people, except on cases where the judge himself decides he needs that support.
Baroness Turner of Camden
Does the noble Lord not recall that his Government introduced a law, which we now call LASPO, which denies any kind of legal aid rights to anybody in employment cases? Individuals, unless they are represented by a union or can afford legal representation themselves, have no representation because LASPO forbids it.
Lord Marland
I note what the noble Baroness says, but I do not think that it has any relevance to this amendment. This amendment is about who is going to decide, who is going to interpret the law in this particular case. Therefore, with great respect, I hope the noble Lord, Lord Young, hears what I have to say because it is actually what people will want.
Baroness Turner of Camden
My Lords, my noble friend has indicated that we do not care for Clause 11. I do not intend to proceed any further with the arguments because we have been over the ground quite substantially and of course I shall not press the debate because we are in Grand Committee. However, we shall have to look at all this again when we reach the Report stage. Perhaps some of the remarks that the Minister has made in response to the comments made by a number of us will cause us to use a different form of wording at the next stage. In the mean time, I am not pressing that Clause 11 should not stand part of the Bill.
Baroness Turner of Camden
I understand that the TUC refers to Clause 12 as “Beecroft-lite”, and I think my noble friend Lord Monks has already referred to it in that light. It will be recalled that the Beecroft recommendations were intended to make it easier for employers to hire and fire workers without having to justify or explain the decisions. The recommendations were widely condemned, even by employers’ organisations such as the EEF. Clause 12 enables employers to offer employees a sum of money and a compromise agreement in return for leaving their employment, as we have heard during these discussions. The conversations will remain confidential and cannot be admitted as evidence in unfair dismissal cases.
The TUC opposes the proposals in this clause since it believes that it will send out a clear signal to employers that it is acceptable for them to sack staff for an arbitrary reason without having to follow a dismissal procedure. The provisions in this clause are very complex and likely to lead to possibly costly legal wrangles.
Another point that occurred to me is that nowhere in the Government’s wording is there any reference to trade union representation, although my noble friend Lord Young attempted to introduce it in Amendment 20G. Quite obviously, the right to trade union representation in these circumstances is very necessary. At the same time, as I have already indicated, the proposals are so unsatisfactory that even with the reservations that have been expressed—which may, I hope, cause the Government to look again at these provisions—I still think that this clause should be opposed. That is what the TUC would like us to do, and I certainly believe that there are strong reasons for doing so.
Lord Stevenson of Balmacara
My Lords, I am very grateful to my noble friend Lady Turner for raising this particular debate because it is when one looks at the whole clause that one is able to reflect a little on the debate so far. We have learnt quite a lot, I think, about the way that the Government wish to approach this area, but we have not understood very much.
Many of the clauses we are discussing in this section of the Bill, and this clause in particular, strike at the heart of the way in which we want our society to be run. I had always understood that it was commonly agreed among the parties represented in your Lordships’ House, and more widely, that there was a case for government to regulate properly the way in which employers and employees went about their business. It should not be obstructive or didactic, but it must bring to bear fairness and other aspects of the good society we all wish to live in.
Lord Young of Norwood Green
I wish to put the record straight on one point. I specifically mentioned that there was a proper way to deal with—to use the Minister’s phrase—“bad employees”, or employees who fail to live up to the mark. If the appraisal system is done properly, then there is a route to dismissal.
Baroness Turner of Camden
My Lords, I am still in opposition to this clause. Of course, we know that we cannot press it in Committee. We will take away what has been said during this debate, which has been very interesting and useful, and see what we come up with on Report.
Certainly, I am not at all happy with what has been said. I do not believe that this helps the good employer—quite the reverse. It helps the bad employer who seeks to get rid of employees as easily as possible, which was what Beecroft was all about; we opposed that, as did a lot of other people. We cannot press this now, and it is not our intention to do so, but we shall have a close look at what has been said before we come back again on Report. There are aspects of this clause that I do not like, and which I would like to pursue further.
Baroness Turner of Camden
I want briefly to speak in opposition to Clause 13 and to say that, according to my briefing from the TUC, it is also opposed to the proposals to reduce the cap for compensatory awards in unfair dismissal and other cases. The Government are proposing to reduce the statutory limit for compensatory awards. They claim that reducing the statutory cap would help to reduce employees’ expectations in unfair dismissal claims. However, there is concern that the main effect of these proposals will be to make it cheaper for employers to sack staff unlawfully. Clause 13(2) gives the Government a power to cap the compensatory awards. It is not just the TUC that is concerned about this. The Law Society says in its briefing:
“The Government is seeking a power to vary the compensatory award in line with annual average earnings. The Society queries the arbitrary nature of this limit, which will prevent a substantial number of claimants who have been unfairly dismissed from recovering their full losses”.
Older workers, who are more likely to have accrued higher occupational pension and other entitlements, may find it more difficult to get new employment and will be disproportionately affected. Recent unemployment figures show that nearly half of unemployed workers over the age of 50 have now been out of work for a year or more. Obviously, they find it very difficult to get alternative work. The link with annual salaries could mean also that low-paid and part-time workers could lose out. For all these reasons it is suggested that this clause should not be proceeded with. I am therefore raising my objection to Clause 13.
Lord Young of Norwood Green
I will be very brief. I think my noble friend Lady Turner has expressed our concerns quite clearly. I await with interest the Government’s assurances that they want to get this right. As it stands, we will obviously be returning to this clause on Report.
Lord Marland
My Lords, if we are to make any progress on this Bill, we have to take a more conciliatory position between ourselves. I believe that underlying all this is a conciliatory position, because ultimately we all want more jobs and more people employing others. We all feel passionately about that. We cannot always come at this from the polarised position of the TUC. Indeed, we as government are not coming at this by saying, “Beecroft says this, so we must do it”. In fact, as a department, we rejected quite a few things that Beecroft said because we did not think that they were in the interests of employees. Therefore, we are not taking a polarised position based upon part of the argument. In the end, we are all interdependent. Without the employer, we do not have employees, and without employees, we do not have a return to prosperity.
It was a pleasure to negotiate with unions in the north. Sellafield was my area of responsibility. I much admired the way in which they came to the table and to understand that they had to improve their working terms and conditions for Britain to become competitive again. It is to their eternal credit that after two rounds, three pinfalls and one submission, we got to a very amicable and successful direct contact where there was mutual respect. As an employer, the first company with which I was involved in setting up, the majority of people who worked there were shareholders. We believed that that community spirit was the best way forward.
I have already conceded on this matter and we do not really need to debate it, but we have a roaming brief on this issue. I think that all parties agree that we need to have a cap on awards but we need to make sure that we get it right and that it is fair. It should not be in favour of the employee or the employee: it should be fair and balanced. This House is good at being fair and balanced.
I am grateful for the contributions, which have been fair and balanced at times. When they have been fair and balanced, we have started to make progress. I think that in our hearts we all want the same thing. At the end of all this, we will have the same thing. It will leave this place a better Bill. It will have been challenged. It will not have been challenged by taking unreasonable, polarised positions. If we did, we would not end up with something reasonable at the end.
After all this, I hope that the noble Baroness will support this clause.
Baroness Turner of Camden
I thank the Minister for his fairly sympathetic response. I also thank noble Lords who have contributed to the debate, particularly my noble friend Lord Monks who set out what has happened over the years in relation to employment rights, which have been the fruit of the struggle of many of us over the years. Workers in their unions, and workers not always in unions, have struggled very hard to maintain rights in employment, which did not come easily to them.
Eventually, we succeeded in getting quite a lot of employment rights. My former noble friend, Lord Wedderburn of Charlton, who I am sorry is no longer with us, was very instrumental in changing the law in this country. He did it as a result of pressure from unions on behalf of the workers who, at that time and in the past 200 years, have been through most appalling conditions. Through organisation and struggle, they managed to change that and we now have a set of employment rights which many of us are now fighting to maintain.
A good employer does not dispute that workers have entitlement to rights. Usually, they are quite willing to honour those rights. It is the poor employer who does not and who wishes that they can regard their employees as disposable. We do not regard employees as disposable. We want to ensure that employment rights are suitably maintained. We shall continue with this when the legislation now before us reaches Report stage. We take on board what the Government have said but I think that we shall come back with different wording and we shall argue for it. That will not be for this evening but perhaps for another time.