Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013

Baroness Donaghy Excerpts

Monday 8th July 2013 Lords Chamber

[Baroness Turner of Camden]

My Lords, we have seen a series of government proposals over the past year, all designed to reduce employment rights and all apparently in the belief that this will promote employment. So a supine, disposable workforce is expected to result in increased employment. This is entirely wrong. We have legislation now making it more difficult for a dismissed worker to claim unfair dismissal. Already, a worker must be in the job for two years before any such claim can be made. Then a series of steps has to be taken before the case can get to a tribunal. The Government have admitted that they want to make access more difficult, and their policies certainly have done so. Now, the Government want to charge and a complicated system is being proposed.

Level A claims for unpaid wages, and smaller claims under category A, are to have an issue fee of £160 followed by a hearing fee of £230. For unfair dismissal, the charges are much greater, being £250 and then £950. We are told that vulnerable and poorer people will not have to pay but the TUC research indicates that a significant number of people on the national minimum wage and living wage rates will have to pay. It is clear that the Government are moving in the direction of the Beecroft proposals, which were widely condemned even by employers. The Government are trying to do that without seeming to do so. The scheme by which employees give up employment rights in return for shares in the employing company, which incidentally was voted down in this House when first proposed, is not meeting with much success even though the Government managed to get it through the Commons.

The latest proposal about charging for tribunal access is part of the same mindset. An employee seeking access to a tribunal following what he or she deems unfair may have been in the job for a number of years. Losing the job could have a distressing effect not only on the employee but the family, leading perhaps to further benefit claims as well as the illness of the dismissed employee. An appeal to an ET before a judge sitting alone will cost more money, and lay members, who bring experience and knowledge of workplaces, are being dispensed with. The Government are clearly expecting that the whole process will seem too complicated and costly for most employees and that there will be very few claims as a result—with no legal aid, of course, in employment cases. Furthermore, employers will be less inclined to seek resolution internally, as they will understand well enough that the complex procedures and costs awaiting employees claiming unfair dismissal will put off any but the most determined.

Do the Government really think that a frightened, submissive workforce is going to assist us in our present economic difficulties? Of course it will not. Growth requires a committed and enthusiastic workforce. These latest government proposals are completely and utterly unfair. They should be withdrawn.

[Baroness Donaghy]

My Lords, I am grateful to my noble friend Lord Beecham for raising these issues, and I will not cover the ground that he has already covered. During Committee on the Enterprise and Regulatory Reform Bill, I congratulated the noble Lord, Lord Marland, who was then taking the Bill through this House, on the fact that the proposals regarding ACAS were right. They laid emphasis on mediation and settlement, and aimed to enhance ACAS’s role. I said that this was the right thing to do and I still think that. Both sides would receive a reality check and be in a much better position to take appropriate action after the ACAS procedures—that is, until these proposals came along.

Unfortunately, alongside the much needed reform that came up in the hands of the noble Lord, Lord Marland, there come these punitive measures for applicants to employment tribunals. It is a classic result of two government departments approaching a problem and coming up with contradictory results. What kind of mood will the client and the employer be in when they get to ACAS? The employer will hold his ground in the hope that the entry fee to the employment tribunal will be sufficient to put the applicant off. The applicant will feel that the cards are stacked against him or her and will be in no mood for conciliation. That is how to sabotage a perfectly good reform.

Today, I spoke to John Cridland, the director-general of the CBI, about these proposals because I knew his views when we were on the ACAS Council together. The CBI agrees with charging for employment tribunals but wanted a lower fee of around £100 and rules that apply more generally to each applicant, rather than all the exemptions and ceilings.

The CBI view is that the high fee is unhelpful. The exemptions defeat the purpose of the exercise and the proposals are confusing. It believes that the Ministry of Justice has concerned itself with recouping charges for its own cost base rather than as a deterrent for vexatious claims. The Ministry of Justice is not focused on how to influence culture, and John Cridland expressed frustration at the poor implementation that he fears, as do I, will get in the way of conciliation. My view is that this apparent deregulation and cut in public expenditure will set up a whole complicated bureaucracy because of the complexity of the scheme, and applicants will not know to which category they belong. This is more red tape, not less.