Employment Bill [HL]

Amendment No. 22 seeks publication of the papers in tribunal claims which have been determined, withdrawn or settled and include a claim under the Public Interest Disclosure Act 1998. I understand that the intention of the amendment is to expose publicly employers who are alleged to have sought to cover up dangerous or unlawful activity. The Government recognise concern about the issue, and we support action by the appropriate authorities to stamp it out and exposure where proven—I repeat, where proven. However, we are concerned about the practical impact of the amendment. In cases that reach the stage of a tribunal hearing, the evidence is of course put into the public domain of the hearing—almost all tribunal hearings are in public. However, in cases that do not reach a hearing, such as those that are withdrawn or settled beforehand, the Government would be concerned about publication of the papers. There would have been no investigation of the alleged wrongdoing to test the facts. The Tribunals Service would be publishing material that might include unsubstantiated allegations to which, depending on the stage of proceedings reached, the respondent might not have had the opportunity to respond. I have heard much about fairness from noble Lords today, and that would be inherently unfair. Publication of that material would not be a proportionate response in those circumstances. It is arguable that to publish might be counter to the Data Protection Act; it could also be a breach of confidence or of copyright. I am sure that those people whose writing can be misleading, but factually accurate, would consider it open season. Furthermore, in cases that have been withdrawn or settled, not only are the employer’s details still confidential but so are those of the claimant. The claimant has every right to expect them to remain confidential. We can speculate that the claimant may have been bought off, but, equally, the detriment he claimed may have been reversed or ameliorated through conciliation. None of that would work if all his details were to become a matter of public record precisely at the moment that he settled. PIDA claims are not about the working practices underlying the claim; they are about the detriment, actual or potential, suffered by the claimant. Revealing the claimant’s details may lead to the employer feeling betrayed by an employee with whom he has reached an amicable agreement, and there is a risk of further detriment. That is in no one’s interests. My noble friend Lord Borrie discussed information that is no longer on the public register. Employer and claimant details were on the public register before 2004. Information relating to employment tribunal claimants and respondents was put on the public register prior to the introduction of the current employment tribunal rules in 2004. However, it became clear that that was encouraging ambulance chasers and reducing the chances of the parties achieving a conciliated settlement. ““Publish and be damned”” comes to mind. Therefore, confirmed by a public consultation, it was decided to preserve the confidentiality of the parties and to publish details of judgments only. That policy was supported by the key stakeholders. My noble friend Lord Borrie also referred to the appeal made to the Parliamentary Ombudsman on behalf of the charity Public Concern at Work concerning access to the details of respondents to PIDA claims and the findings of the ombudsman’s report. The noble Baroness, Lady Wilcox, also referred to that. The Government accept the findings of the report, which recognised that there was no intention to deceive. The Government fully accept that action may be needed to prevent the undesirable practices that an employee may attempt to expose, leading in turn to his suffering detriment and to a Public Interest Disclosure Act claim. Both the CBI and the EEF have told us that they oppose this amendment for reasons similar to those that I have just set out, but they have asked us to stress that they of course support rooting out employers who engage in dangerous, fraudulent or abusive behaviour. I am grateful to my noble friend Lord Borrie, who, in explaining his amendment, said that it should be read in the context of a statement of settlement, or similar, being added to the paper published. I am grateful for that clarification of the purpose of the amendment, but I am afraid that I am not persuaded that such a procedure would be workable or overcome the difficulties with the amendment. There would still be no court finding on the substance of the employer’s alleged behaviour against which to test the statement. It would be making public an allegation, not a proven fact. The certificate could still reflect a cover-up between the employer and the claimant who, for whatever reason, had settled directly. Furthermore, there is no mechanism to ensure that the parties would agree to put their statement into the public domain, nor that they would be able to agree its terms. I know that my noble friend recently discussed this matter with my right honourable friends the Minister of State for Employment Relations and the Member for Makerfield. In his subsequent letter, the Minister of State said that he believed the amendment would impact adversely on the innocent and that there was no evidence that it would increase our ability to tackle bad employers. I therefore ask my noble friend to withdraw the amendment.