Employment Bill [HL]

moved Amendment No. 16: 16: After Clause 4, insert the following new Clause— ““Mediation where no agreement reached: constitution of tribunal In the Employment Tribunals Act 1996 (c. 17), after section 17 there is inserted— ““17A Mediation where no agreement reached: constitution of tribunal Where a chairman or other member of an employment tribunal engages in mediation in relation to a claim made to the tribunal and that mediation fails to reach agreement between the parties, he shall not sit in respect of further proceedings in that matter (including any preliminary hearing) and the claim shall be determined by a tribunal fully constituted to hold a hearing in the proceedings.”””” The noble Lord said: The amendment, which I am obliged to move, is about the position of mediation in the proceedings of an employment tribunal. First, mediation is not the same as conciliation. Looking around the Committee, I am quite sure that everyone is sufficiently experienced to understand that. Mediation means that the mediator advances solutions to the parties. Therefore, the intention is that mediation should in future be undertaken by any member of the tribunal who is assigned the possibility of that process in the regulations. The amendment is technically deficient because the job of being a mediator has already been assigned to any member of the employment tribunal by paragraph 42 of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007. That paragraph inserts a new section in the Employment Rights Act 1996, Section 7B, ““Mediation””. It states that any member of the tribunal can act as a mediator in disputes where the case is the subject of proceedings. If Members of the Committee consider where we have got to, a employee or worker brings a claim to the tribunal and, instead of the tribunal all acting in the required judicial capacity, one of them acts as a mediator, necessarily taking sides about what is, or is not, the superior argument and solution to the dispute. Amendment No. 16 ought therefore to require an amendment of Section 7B of the Employment Rights Act 1996. Members of the Committee may ask how on earth that new section was placed in that Act. Simply, it was put there in your Lordships’ House, without argument or debate, promoted by the Ministry of Justice, which frankly has little knowledge of the realities of employment tribunals. It has made it a requirement that a member of the tribunal—and it is spelt out that it could be the chairman or any other member—should act as a mediator when judicial proceedings have been brought before the tribunal. The only qualification that makes any more sense of this mistaken proposal is that regulations on this point, and this point alone, must be made after consultation with ACAS. Suddenly, the Tribunals, Courts and Enforcement Act brings in ACAS. It was said to me when I was considering this deep problem, that that paragraph in the schedule is a follow up to Section 24 of the 2007 Act on mediation. That is quite true, but it makes a particular provision about employment tribunals: "““Employment tribunal procedure regulations may include provision enabling practice directions to provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings””." The final twist in the skein is made by Section 7B(3), which states that once a member has begun to act as a mediator in relation to a disputed matter in a case that is subject to proceedings, the member may decide matters in the case only with the consent of the parties. The difference between that and Amendment No. 16 is that we say that once a member who is there to carry out judicial functions has taken the role of mediator, he or she should not sit in the subsequent proceedings when the tribunal considers the matter. In view of what my noble friend has said, I notice that it is twenty-five minutes past the hour. I wish to move Amendment No. 16, with a footnote that if we come back to this on Report—which we really should because here is a serious innovation to the role of members of employment tribunals—it would have to be with proper drafting that changed the new Section 7B inserted by the 2007 Act. I beg to move.