Employment Bill [HL]

moved Amendment No. 3: 3: Clause 4, page 4, line 15, after ““consent”” insert ““in writing”” The noble Lord said: My Lords, in moving Amendment No. 3 I shall speak also to Amendments Nos. 4, 5, 6, 7 and 8. These amendments cover various aspects of determinations without a hearing. Amendments Nos. 3 and 5 ensure that determinations without a hearing in employment tribunals can be made only where there is express consent in writing from all the parties, save for those circumstances in which a default judgment can be issued without a hearing, as happens at present. Over 70 per cent of consultees in our dispute resolution consultation favoured the implementation of such a mechanism. These views are summarised in our response to this consultation, which we are publishing today. I am arranging for copies to be placed in the Libraries. Powers have existed since 2002 to enable regulations to provide for determinations without a hearing in employment tribunals. At present, this only happens in circumstances where the respondent does not present a response—or a valid response—in the proceedings, where the case is not contested, or where the claim is withdrawn and the proceedings dismissed. These are known as default judgments. Clause 4 seeks to circumscribe further this power to make such regulations, as my noble friend Lord Bach described in Grand Committee. In this context, it is important that the power is clearly described and limited. Clause 4, as originally drafted, would establish in law that determinations without a hearing could take place only where there is consent from the parties, but that consent could be either express or deemed. It would also—and this was not the intention—remove the tribunals’ ability to issue default judgments in circumstances where no response is submitted and where the case is uncontested. We debated the consent issue in Grand Committee on 4 February and my noble friend Lord Bach undertook to consider further the case for requiring the expression of consent to be made in writing. He also undertook to reconsider the drafting of the second arm of Clause 4, which would permit determinations without a hearing to take place on the basis of deemed consent where parties had been given the opportunity to request a hearing of their cases but had not done so. My noble friend Lord Wedderburn firmly argued that deemed consent was not an appropriate mechanism in this situation. Other noble Lords expressed similar concerns. I subsequently met him and my noble friend Lady Turner to discuss their concerns on this point. The House will join me in wishing him a speedy recovery, as he cannot be here today. On reflection, we are persuaded that it is appropriate that the law should limit the order-making power enabling determinations without a hearing to situations where express consent in writing has been secured from all the parties. This will give certainty that such an important decision—to waive the right to a hearing—has been made by all the parties. This amendment therefore removes from the Bill the provision that would have enabled regulations to establish deemed consent as a sufficient basis upon which to proceed with a written determination. It also carves out default judgments from the requirement for consent, since clearly consent could not be obtained from both parties in the circumstances I described earlier where default judgments are issued. It is our intention to consult publicly, later this year, on regulations providing a legal framework for enabling determinations without a hearing in five jurisdictions— national minimum wage, holiday pay, breach of contract, redundancy pay and unlawful deductions from wages. Determinations without a hearing, in such cases, will only be possible where all parties consent, and an employment judge, considering the papers, considers that no hearing is required to make an informed determination in that particular case. I beg to move.