Employment Tribunals Act 1996 (Tribunal Composition) Order 2009

My Lords, I agree with a great deal of what has been said by my noble friends Lady Turner and Lord Wedderburn of Charlton. They have made the general argument that the Employment Act has resulted in a trend of judges hearing cases alone without the benefit of the experience of the wing men—the employer and the employee representatives. I remind the Liberal Democrat Benches that my noble friend Lord Wedderburn referred to the Donovan report and the way in which industrial tribunals—employment tribunals, as they are now called—have a wing-men approach. That tripartite function of membership is so important. It dates back to Lloyd George, who introduced tripartite membership of tribunals dealing with national insurance and other matters. He conceived that there should be a three-person tribunal with a legally qualified chairman and people representing the employer and the employee. It has a notable and significant history and I am worried, as are my noble friends, that the clock may be being turned back without adequate justification. Let us look at paragraph 7.4, which my noble friend Lord Wedderburn quoted: ""The Government believes that some tribunal cases, which revolve around the determination of facts in cases of monetary disputes, could be dealt with more quickly and simply … by an Employment Judge sitting alone to hear the case"." As my noble friend indicated, factual questions about holiday pay are just the sort of thing where wing men are most useful and most experienced in a way in which a lawyer/judge probably is not. Yet it is suggested that the employment judge sits alone to hear the case. It might make more sense if it were one of the wing men, but that would not do, because it would have to come from one side or the other, so that would not be satisfactory. The noble Baroness, Lady Garden, from the Liberal Democrat Front Bench, said that there is a degree of flexibility. Indeed there is, and the Minister in opening the debate mentioned the flexibility, which is referred to in paragraph 2.2. If the employment judge reviews the papers before the hearing and considers that a full panel will be desirable, there will be one. Why should it be the employment judge who determines the flexibility and the question of whether there will be a full tribunal? Why does the whole tribunal not determine whether it is satisfactory that the employment judge should sit alone? I am all in favour of the flexibility that there is here, but who determines it is a significant question. It is not determined by the tribunal as a whole, but by the judge alone. I am not sure that that is entirely desirable. For a number of reasons, I have questions, and I would be only too glad if the Minister will in particular answer the questions asked by my noble friend Lord Wedderburn.