Employment Bill [HL]

My Lords, I thank the noble Lord, Lord Henley. I was actually speaking at a businesswomen’s event in Leicester this lunchtime. I believe that, if people have agreed to a speaking engagement some months ago, they should do everything that they can to try to fulfil their promise. Amendment No. 4 will be effected through our Amendment No. 5. Amendments Nos. 6, 7 and 8 would introduce additional legislative requirements for any written determination procedure. These are unnecessary and would in some cases add extra complication, complexity and cost. Amendment No. 6 proposes a list of criteria for establishing whether consent to a written determination is valid. Our amendment ensures that consent would have to be unequivocal and in writing. That is what is required by the case of DH and Others v the Czech Republic. ““Without constraint”” implies an assumption that parties could be subject to pressure to choose written determination. We do not believe that that will be an issue. Parties will have to consent expressly to the procedure. If they do not, they will proceed to a hearing, as is currently the case. This element of the amendment is not required. This brings us to informed consent. We shall ensure that parties receive sufficient information to make an informed decision about whether to consent to a determination without a hearing. We do not agree, however, that ““informed consent”” should be defined as ““subject to receipt of independent advice””. Independent advice is defined in Section 288 of the Trade Union and Labour Relations (Consolidation) Act 1992. That provision relates to a decision by parties to accept a compromise settlement, which would result in the parties forgoing their right to a determination of their case by an employment tribunal. The safeguard is appropriate in those circumstances. Consent to written determination is not analogous, since the case would be determined by an employment judge. Parties will have sufficient time to seek advice on consent—a minimum of three weeks, as we said in Grand Committee. It should be open to parties to decide not to seek advice, which may have time and cost consequences, if they so wish. Amendment No. 7 would establish by regulation that the judge’s decision in cases determined without a hearing would be notified to the parties and the public within two days of the decision. That is unnecessary. Currently, when a hearing takes place, a judgment with reasons is usually given orally at the end of the hearing to the parties and any members of the public present in the hearing room. A written copy of the judgment is either sent to the parties after the hearing or given to them on the day. Written reasons are given, if requested by a party, either at the hearing or within 14 days. While the Tribunals Service has internal targets for sending out judgments after a hearing, these are not set out in regulations. I can, however, assure noble Lords that the Tribunals Service acts quickly to notify the parties of the outcome, regularly exceeding internal targets. The Government do not believe that it is necessary to specify a target within regulations. In cases determined without a hearing, the Tribunals Service would routinely send the judgment to parties as soon as it was made. Any further incursion of regulations would, I hope noble Lords will agree, increase, rather than decrease, the red tape that employers suffer. Amendment No. 8 would restrict the determination of individual cases to a specific judge by imposing a legal requirement for the parties to be advised of the name of the judge who would determine their case, and for that information to be provided before the parties provide consent. This would create an unprecedented provision, not seen anywhere else across the judicial landscape, for the parties to have a right of approval of the judge who would determine their case. That, surely, cannot be right. We have full confidence in the ability of any judge to operate written determination procedures appropriately. Employment judges are appointed following a robust appointment process which ensures that they have the required experience and judicial capacity to judge in the complex jurisdictions that make up the canon of employment law. This amendment would also effectively restrict the designation of single cases to single judges and stifle the Tribunals Service’s ability efficiently to organise and manage cases in the most effective, expeditious and, presumably, cost-effective way. For instance, if the designated judge were unavailable to proceed with the determination, through illness or incapacity, it would not be possible to transfer the case to an alternative judge without beginning the notification and consent process all over again. How is that for causing further delay, further cost, further confusion and further frustration? That could hardly be in the interests of the parties as it would simply introduce delay and unnecessary bureaucracy into the proceedings. The Government believe that their amendment to Clause 4 which we discussed previously provides all the safeguards necessary to ensure access to justice for all parties concerned. On Question, amendment agreed to. [Amendment No. 4 not moved.]