Employment Tribunals Act 1996 (Tribunal Composition) Order 2009

My Lords, this order will enable employment tribunal proceedings relating to leave entitlement under certain working time regulations to be heard by an employment judge sitting alone. Employment tribunal panels usually consist of a legally qualified employment judge and two lay members, one each from the employee and employer sectors. However, since the mid-1990s there have been specific instances, set out in the Employment Tribunals Act 1996, where an employment judge can sit alone to decide a case. Initially this power applied to claims including breach of contract and unauthorised deductions from wages. Claims for redundancy payments and certain national minimum wage claims were added to the list from 1 August 1998 and 1 April 1999 respectively. Today’s order adds a further category, referred to as "holiday pay". Again, it covers simple monetary matters and relates to leave entitlements under the working time regulations. Straightforward monetary disputes typically involve clear issues of law where there is no dispute over the facts. In such cases a lay member’s practical experience of the workplace is less relevant. Consequently, the Government, and the majority of our stakeholders, view this order as a sensible measure that will enable the most productive use of the precious time of lay members. Lay members make an immensely important contribution to employment tribunals. They bring an understanding of the realities of the workplace from the perspective of both employers and employees. During the passage of the Employment Act last year, there was widespread support among members of both Houses for their role. My noble friends Lord Wedderburn and Lady Turner raised a number of valuable points, for which I am grateful. I apologise to my noble friends for an oversight by the department in not consulting them before this measure was tabled, as was promised by the noble Lord, Lord Jones. The request was not conveyed directly to the department and Ministers. However, we would have wished to consult them, and I hope they will accept this apology. I know that my noble friends are concerned that there should be no diminution of the role of lay members and I can assure the House that this order will not undermine their valuable contribution. Indeed, as employment tribunals continue to see rising numbers of individual claims it is important that lay members are involved in these cases where their skills and experience can bring most benefit. During 2007-08, 3,000 holiday pay cases were disposed of by an employment tribunal. Some would not have been suitable to be heard by a judge sitting alone but many would. This order will free lay members to sit on more complex cases instead, allowing them to be heard sooner. The majority of respondents to the Government’s consultation last year agreed that lay members’ time could be better used. The Council of Tribunal Members’ Association said that it had no objection in principle to this measure provided that appropriate safeguards were in place. I can assure the House that such safeguards are already in place for cases where an employment judge can sit alone, and these will apply equally to cases concerning holiday pay. When deciding whether a case should be heard by a judge sitting alone or by a full tribunal, an employment judge must consider the circumstances of the case and the views of the parties involved. A judge may also decide at any stage that a case should be heard by a full tribunal; for example, if the facts of the case are likely to be disputed. The order is part of broader efforts to simplify and improve the dispute-resolution framework. In addition to today’s measure, we are expanding the confidential and impartial ACAS helpline. It is available to answer specific employment questions and to provide advice on resolving workplace disputes. From April, ACAS will offer, in appropriate circumstances, a free pre-claim conciliation service, accessed via the helpline, to employees and employers unable to resolve their disputes. For the reasons that I have outlined, the Government believe that the reform is a sensible addition to the jurisdictions that can be heard by a judge sitting alone. We are confident that it will ensure that the valuable expertise that lay members bring to the tribunal process is used where it can add greatest value. On that basis, I commend the order to the House.