Employment Bill [HL]

I am particularly grateful to the noble Lord, Lord Henley, for his observations on who started this in the first place. I particularly welcome the contribution of the noble Baroness, Lady Perry. The Government are committed to creating an environment in which employers and employees make genuine attempts to resolve their workplace disputes without recourse to the employment tribunal. When such disputes go on to become employment tribunal claims, it is important that measures are in place to ensure that claims are made responsibly and discourage those which seek only to inconvenience or harass a party or to bring the system into disrepute for selfish reasons. The Government believe that only a very small proportion of tribunal claims fall into the latter category, and they are dealt with, as appropriate, by the tribunal system. The amendment seeks to include within Section 33 of the Employment Tribunals Act 1996 restrictions on frivolously instituted vexatious proceedings. Section 33 contains provisions for restrictions on habitually and persistently made vexatious proceedings. The Government recognise that a distinction can be drawn in certain circumstances between habitual and persistent, and frivolous, vexatious proceedings, and believe that it makes sense to treat them differently in the law. My noble friend Lord Wedderburn raised the point about research, and I would welcome some work being done in future on how many frivolous claims are settled at the beginning of the whole process so they do not feature in current research. Employers buy them off—especially small businesses, which write a cheque to avoid being wrapped up in the mire of litigation. A frivolously started claim might not find its way into the statistics because the cheque is written completely unfairly to get rid of something that will cost the business a great deal. That is an abuse of the process but one that does not feature on the radar of survey work of what tribunals actually hear. I can provide the assurance to the noble Baroness, Lady Perry, that the provisions are sufficient to cover the point that she rightly raised. The powers contained in Section 33 of the Employment Tribunals Act 1996 are appropriate for dealing with a course of conduct that could include repeated frivolous claims, whereas a frivolous case in the terms of this amendment could be a one-off claim, although it would still have to be a vexatious one. It is based on the provisions of Section 42 of the Supreme Court Act 1981, which also draws this distinction. The powers available under this provision enable the appeal tribunal, when there has been habitual and persistent institution of vexatious proceedings without reasonable grounds, to make a restriction of proceedings order which includes that no proceedings shall without leave of the appeal tribunal be instituted in any employment tribunal or before the appeal tribunal by the person against whom the order is made; any proceedings instituted by that person in any employment tribunal or before the appeal tribunal before the making of the order shall not be continued by him without the leave of the appeal tribunal; and no application is to be made by him in any proceedings in any employment tribunal or before the appeal tribunal without the leave of the appeal tribunal. That is evidence of the assurance the noble Baroness sought. Other powers are available to tribunals in respect of weak cases. The Government suggest that if frivolous cases are weak, they can be considered under those powers. They include striking out, cost orders, pre-hearing reviews and a requirement for payments of deposits. The law already safeguards access to justice, while giving employment tribunals appropriate mechanisms for dealing with weak cases.