Employment Bill [HL]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Miller. By my calculation, this is the 11th major employment Bill to come before the House since I came here in 1977. Like many of the previous Bills of this Administration, the Bill, like the curate’s egg, is good in parts. I welcome the measures to improve the enforcement of the national minimum wage and to deal especially with arrears payable in that regard. I welcome the clause to comply with the ASLEF judgment in the European Court of Human Rights, which seems to have received very little attention today. However, it will be necessary in Committee to examine carefully whether the Bill complies with what the Minister, in his kind briefing, suggested it should: namely, that unions must have a right to determine their membership. I wish mainly to address the earlier clauses of the Bill, which rightly repeal the 2002 Act’s compulsory dispute procedures that were unfair to workers, counterproductive and unnecessarily complex. No one who heard the passionate objections to those statutory procedures raised in 1991 by my noble friends Lord McCarthy and Lady Turner of Camden—eventually with some support, in the last resort, from the Conservative Party—will be surprised that I welcome their repeal. The question is, however: what replaces the compulsory dispute procedure? I apprehend that it will be agreed in all corners of the House that the best way to settle disputes at work is to have a speedy and efficient procedure agreed between the employer and representatives of employees for the settlement of disputes. That is the way to bring down the number of cases that need third-party enforcement through an employment tribunal, yet the Bill does relatively little in that respect. The only measure here, which is a sort of carbon copy from the 2002 Act, is the power of a tribunal to increase or decrease compensation after a case has gone to the tribunal, according to what is reasonable or unreasonable. What are we left with as the relevant code of practice to which the Bill directs the tribunal’s attention? We are left only with the basic ACAS code of practice as a required relevant code. The Explanatory Notes state that the ACAS code will be the relevant code in almost all cases, yet at 3.10 pm today the Minister, from his semi-detached position on the Front Bench of the Labour Government, asserted clearly that the ACAS code would apply in all cases. That should be made clear in the Bill, otherwise uncertainty will only lead to unnecessary litigation. Even the current ACAS code is designated by authorities on the subject, such as Professors Deakin and Morris in their book on labour law, as a dilution of the high standards of previous codes. Under the Bill, however, we shall not even have the current version of the ACAS code before us; it has been required to rewrite its code of practice on disciplinary and dismissal procedures and grievance procedures for workers. I have two questions for my noble friend Lord Bach. First, why does the Bill not make it clear just when the ACAS procedural code is, and is not, the relevant code of procedure? Secondly, why cannot the Government delay the Bill until we can see the nature of the new ACAS code that is being rewritten? My noble friends have made that point already, but it bears repetition. To ask the House to pass the Bill before we even know what is in the new ACAS code is asking it to buy a pig in a poke. That is not satisfactory. A further practical question arises, of great importance. What will be the status of voluntary procedures agreed between the employer and the trade union, which is the vital nub of settling disputes at work? Is that procedure never to be a relevant code of procedure under the Bill? It is a pity that the noble Lord, Lord Jones, is not replying to this debate, although I am sure he enjoyed moving the Bill from the Front Bench for a Labour Government. The job of replying has been left in the capable hands of the noble Lord, Lord Bach, and I hope he can say something on those questions. There is no sustainable evidence that the number of claims to employment tribunals is excessive. That is the only way at the moment that workers can enforce their rights. Everyone with any knowledge of the tribunals knows that we have a gigantic backlog of equal-pay cases and cases of age discrimination which the Bill might have said something about. There must be a way of dealing with that backlog, which is otherwise going to overflow into a huge wave of litigation—not perhaps the best way of solving it, but what other ways at the moment do workers have? What is wrong with the Bill in that respect is the absence of high-level socio-legal research before it was drawn up. Serious socio-legal work was done before most of the Bills of the past 10 years were drawn up—my noble friends will remember the reports—but not in this case. It has merely produced the Gibbons report, which, to be frank, was a genuine attempt to present an amalgam of anecdotal evidence and uninstructed comparative law, more like a draft student essay—with the greatest respect to the document. Of course, it supported ACAS, and in that respect I welcome it. I turn to another feature of the Bill. There is to be a fast-track procedure when cases reach the tribunal, which will have no oral hearing at all. It is a very grave question; what is the position of this bureaucratic, administrative, office decision that will replace a normal hearing? We are told that this will be done in a limited number of jurisdictions. Surely those jurisdictions should be enumerated in the Bill. What kind of access to justice is this? The Government will say that the Bill ensures that the fast-track procedure will apply only where both parties agree. Even on that basis—we must look at that very carefully in Committee—there is a question of how far it will offend Article 6 of the European Convention on Human Rights, which we have adopted in the Human Rights Act. It is very questionable whether the Government have got this right and have failed to take advice on the European Convention in drawing it up. I turn to deductions from pay by an employer. Noble Lords may think that in these modern, civilised days, rather than what my Italians colleagues call ““savage capitalism””, improper deductions from pay are a rarity. Noble Lords might like to know that in 2006-07 there were some 35,000 complaints about unauthorised deductions. ACAS conciliated a settlement for about 7,000, and nearly 20 per cent of the rest had to be fought for by workers in a tribunal, asserting their right to a proper wage. The Bill would add to the worker’s remedies the right to claim financial loss in addition to what he can claim now in a tribunal. Why only financial loss? There are many sorts of loss that a worker and his family may experience if he does not receive his proper wage. That must be looked at in Committee. I will make one remark about the nature of the tribunals, about which I agree very much with my noble friend Lady Gibson. There is at the moment very widespread concern that the position of the lay members of the employment tribunals is being undermined. One of the reasons for that is that the tribunals appear to come within the scope of the Ministry of Justice. One might have thought that it would have taken care to understand the nature of tribunals and employment tribunals, but it has not, as its recent document Transforming Tribunals, issued in 2007, makes abundantly clear. I ask for clarification of just how far the Ministry of Justice is likely to go in its campaign to downgrade lay members of the tribunals. Finally on ACAS, the Bill makes changes in the conciliation process. I agree with the noble Lord, Lord Hunt, that of course that overflows into mediation. ACAS does it quite regularly; we do not have to give ACAS some exceptional, alternative dispute resolution to do that. It understands conciliation and mediation, although the Bill makes it more difficult for ACAS to demand the reinstatement of a worker who has been unfairly dismissed. That is very important for us to consider further in Committee. I ask for one undertaking from the Government on ACAS. Will my noble friend assure us that it will be given full resources to do its difficult work in settling disputes at work and that any recent cuts in its resources and funding will be restored by the Government at a very early stage? With those caveats, I welcome the Bill, and I look forward to Committee, although I am very unhappy that the Bill is being transferred to that graveyard of amendments, the Grand Committee, rather than being debated in a Committee of the whole House as it deserves.