Employment Bill [HL]

My Lords, I am grateful to the noble Lord, Lord Henley, for this amendment, which would preclude an employment judge from taking part in the determination of any case in all circumstances where he or she has been involved in mediation. The present legal position is that the express consent of all parties is required before a mediating judge can determine such a case. I agree with the noble Lord that in general, and as a matter of course, it is desirable that mediating judges should play no part in the determination of cases. Parties need to have confidence in the impartial judgment of the tribunal. However, if they do, why should it be impossible for the mediating judge to be part of the employment tribunal? It is because the parties need to have confidence in the impartial judgment of the tribunal that, in the recent Tribunals Service trial of judicial mediation in employment tribunals, the rules of the scheme provided that a mediating judge could not take part in the judging of a case. It is right that this should be the general rule. We should be mindful that ““mediation”” is, as I understand it—there are much greater experts in the House than me—a fairly elastic term that is undefined in law. It is a broad church that can stretch from activity that is close to conciliation, where the mediator seeks to establish common ground between parties but does not take a view on the substantive merits of the case, to a model more like arbitration, where the mediator proposes a solution having heard the arguments of the parties. Where it is more akin to conciliation, we think that there is an argument for using the law to prevent a judge’s involvement. We think that the argument for using the law to prevent a judge’s involvement in the determination of a case is less strong in the mediation model, which has been used in the recent pilot of judicial mediation in employment tribunal cases. We sympathise with the arguments advanced in favour of the amendment, but is it right to prescribe in legislation that no mediating employment judge can ever subsequently be involved in determining a case? There could be circumstances in which such involvement would be in the interests of justice. In a complex case, a mediating judge would become familiar with the facts and, if mediation fails, there might be unnecessary delay if the parties have to set out their respective positions in detail to another judge. In such circumstances, ought we to say—this is the question that I pose to the House—that in law, even if the parties themselves desire it, the original judge cannot continue in any circumstances to determine the case? We are not sure that that is not going too far. Parliament accepted the argument that I have just put forward in relation to other tribunals when it passed the Tribunals, Courts and Enforcement Act last year. That included a provision that a mediating judge could take part in the determination of a case where all parties agreed. We are not sure that the case has been made for treating mediation in the context of an employment tribunal differently from mediation in the context of other tribunals. Our view is that the existing legal position, whereby a mediating judge could be involved in subsequent determination, but only with the express consent of the parties, is the appropriate way for statute to deal with this matter. That is why, although sympathetic to much that the noble Lord, Lord Henley, has said, we think that it would be wrong to put this into legislation and I invite him to withdraw his amendment.