Employment Bill [HL]

moved Amendment No. 2: 2: Before Clause 1, insert the following new Clause— ““Employment tribunals etc: role of lay members 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— (a) an employment tribunal as ““other members””; or (b) the Employment Appeal Tribunal as ““appointed members””, under the Employment Tribunals Act 1996 (c. 17).”” 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 be a potential nucleus of labour courts in Great Britain for individual disputes between employer and employees. And so it has turned out. The Donovan Commission’s Royal Commission report in 1968 suggested that they should be given such a function with a tripartite status, which gives them a very special character. The Donovan Commission report said that they should be easy of access and less formal than ordinary courts and close to the realities of employment and its relationships. 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””." He went on: "““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””." I am sorry to subject the Committee to that long quotation, but it stands part of an even longer page or two on the problem and it is the point of view of persons who have spent in some cases many decades as wing-persons on employment tribunals. It is not a question of whether too many cases do or do not go to tribunals; that is quite a different issue—and I quoted the Minister at Second Reading, who went on to say that he thought that more cases could be settled before they got to tribunals, which is a more controversial issue. I am addressing the problem of the composition and framework of employment tribunals. There is a need for a reassurance from the Government that these fears are not well founded and that employment tribunals are not just another set of administrative tribunals but are there for the purpose stated in the Donovan Commission report and a vast number of other documents over time. That was not a party issue. The need for employment tribunals of this kind became a feature underpinning our employment relationships. Whether those persons who served for so long on employment tribunals and represented many hundreds of lay members, as I prefer to call them, are right or wrong, their fears are such that a reassurance would be welcome. These amendments are proposed to this Bill because there is no other place to discuss the problem in Parliament these days and it would be very welcome if the Government took up the opportunity to do so. I beg to move.