Employment Bill [HL]

moved Amendment No. 10: 10: Before Clause 5, insert the following new Clause— ““Disciplinary and grievance procedures: code of practice (1) Any draft code of practice on disciplinary and grievance procedures issued by ACAS under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) shall encourage employers to ensure that third party facilitated dialogue is used, in appropriate cases, as a part of disciplinary and grievance procedures. (2) Any such code of practice shall provide guidance as to what constitutes an ““appropriate case”” for the use of third party facilitated dialogue. (3) In this section a reference to ““third party facilitation dialogue”” includes a reference to conciliation, mediation and independent investigation.”” The noble Lord said: My Lords, I shall speak also to Amendments Nos. 11 to 13. I am very grateful to my noble friend Lord Campbell of Alloway for his support in putting his name to the amendments. We return here to the whole question of mediation and conciliation and to the generic subject of alternative dispute resolution. The proposed new clause in my amendment states clearly that the ACAS code of practice should refer to what is described as, "““conciliation, mediation and independent investigation””," in appropriate cases. There will be guidance in the code of practice on what constitutes an appropriate case. I am grateful for the support that I have received on this from many noble Lords. I feel so strongly about it not just because I am a Centre for Effective Dispute Resolution-accredited mediator but also because, as a partner in a national commercial firm of solicitors, Beachcroft LLP, I have become aware of the tendency in what some people describe as a damages or compensation culture, whether perceived or real, for lawyers to be involved at an early stage and to escalate a dispute, making it even more difficult to reach a proper resolution of the problems that have arisen. Although this did not really enter into employment tribunal cases historically, I am given to understand that there is now much more of a tendency for employment tribunals to become a battleground where disputes are taken that should have been settled at a much earlier stage and where the parties involved have not had an opportunity of talking through the situation in the way that this new clause stresses is so important. Amendments Nos. 11, 12 and 13 proceed to refer to conciliation and mediation as well. Both are forms of alternative dispute resolution. I am seeking in these amendments to identify and facilitate ways in which employers and their employees can settle issues between them early on before any battle lines are drawn up and before, as all too often happens, irrevocable decisions and positions are taken. There is a difference between conciliation and mediation. ACAS, with all its experience, identifies that on its website, where it describes conciliation as where an independent conciliator discusses the issues that have arisen in an employment tribunal claim, "““with both sides to find common ground on which the claim could be settled””." The term conciliation is used when an employee, "““is making, or could make, a specific complaint against their employer to an employment tribunal””." It is therefore different from mediation. Rightly, the ACAS website describes mediation as, "““the most common form of alternative dispute resolution. It’s completely voluntary and confidential. It involves an independent, impartial person helping two or more individuals or groups reach a solution that’s acceptable to everyone … Mediators do not make judgements or determine outcomes””." They are there to facilitate the parties to reach their own agreement, which as a result is much longer lasting and satisfactory. The whole focus is on going forward to establish a continuing relationship between the parties, rather than on going back and being judgmental about what has or has not gone wrong. In 80 per cent of mediations a settlement is reached, as is clearly laid out on the ACAS website. Agreements are not legally binding. In fact, as my noble friend Lord Henley, who is also a fully accredited mediator, will testify, often no settlement is reached. The mediation has not failed, however, because often a settlement will result in the weeks following, as the parties suddenly begin to realise its importance. Therefore, the mediator’s job is not to achieve a settlement but merely to enable both parties to try to reach accommodation themselves. Therefore, settlements are not legally binding, although they can be given legal force if an ACAS conciliator becomes involved—but not unless that occurs. The other issue is equally important. With mediation being a private process, can ACAS under the existing legislation involve outside mediators? There is a whole range of expertise in the employment arena, with highly professional people who could assist ACAS. Of course, ACAS will need additional resources to enable it to fulfil all those functions. But if it is to fulfil them, I would hope that we would see the number of disputes diminish and an increasing number settled amicably. I beg to move.