Employment Tribunals Act 1996 (Tribunal Composition) Order 2009

My Lords, I support my noble friend Lord Wedderburn. I well recall the discussions we had during the passage of the Employment Bill, which is now an Act. We had been contacted by the organisations representing lay members serving on employment tribunals. They believed that they were being gradually phased out as they had been sitting on fewer cases. Moreover, a review commissioned by the Government appeared to be inclined in that direction. Indeed, the view seemed to be taken in the review that all tribunal members could be interchangeable. There seemed to be a lack of understanding of the special knowledge of employment issues that could be deployed by the lay members representing employees and employers. As a result of the representations made to us by these lay members, we raised the issue during debates on the Bill and had discussions with the then Minister, the noble Lord, Lord Jones of Birmingham. We believed that we had convinced the Minister of the validity of our concerns. He certainly assured us that the Government were well aware of the worth of lay members and the need for their continued involvement in employment tribunals. I am very glad that the Minister has reiterated that view this evening. After our discussions, we expressed our satisfaction with the outcome and duly reported accordingly to the lay members who had approached us. I was therefore somewhat surprised to see in the draft order now before this House that the Government are departing from what we took to be firm assurances about the continuing role of lay members in these important tribunals. I do not doubt at all that the noble Lord, Lord Jones, certainly did not intend to mislead us in the discussions. He himself no doubt believed that what he said was accurate, and he was working from the brief that he had from the department. This is an important issue. An employment judge, sitting alone, is unlikely to have the breadth of knowledge and experience of the current lay members representing employees and employers. The matters that the order stipulates as being suitable to be heard by an employment judge sitting alone are likely to be of considerable importance to the workers bringing the cases. The Government claim that there has been full consultation, but tucked away in the accompanying paper is the single line, ""there was some opposition from employee organisations"." Yes, I do not doubt that there was. Important workers' rights are involved. Unions have raised the possibility that some of the cases could be complex. The safeguards proposed only seem to involve a communications strategy—a matter of simply telling people what all the changes mean. It is our belief that the whole idea of an employment judge sitting alone in these cases should not be proceeded with. When we had talks with the lay representatives during discussion of the Employment Bill, some expressed the view that, despite what the Government had said about the value of the contribution they made, there was a view within the department that they should indeed be gradually phased out over time, leaving the process entirely in the hands of single employment judges. My noble friend Lord Wedderburn has dealt in detail with their feelings in that respect. We thought that we had managed to deal with that feeling, and as a result the lay members we met pronounced themselves satisfied. However, perhaps they were right after all and this is a first step towards the objective, and the valuable contribution that these people make to justice and employee rights is to be discontinued. I very much hope that this is not so. Generally speaking, employees have confidence in the present system. They know that their cases will be heard before people who have knowledge of the world of work. That is important. Incidentally, I had discussions today with the noble Lord, Lord Campbell of Alloway, who has experience in these matters. He was involved in the original Donovan Commission report, which eventually led to the establishment of these tribunals. Unfortunately, he cannot be here this evening for personal reasons, but has given me permission to say that he fully agrees with what my noble friend Lord Wedderburn and I have said. He opposes the idea that eventually lay people should not sit on the tribunals. He believes that they have a great deal to offer and he does not care for a situation in which an employment judge sits alone on these cases. He asked me to bring that to noble Lords’ attention. I urge the Government to think again about what has been said this evening.