New clause 7 - Dismissal after end of protected period
Employment Relations Bill
9:30 am
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
I hope to. If not, I shall return to the subject.
An appropriate employer representative is defined in subsection (6) of new section 238B as a person who has the authority to settle the matter on behalf of the employer, or a person authorised by that person to make recommendations to him or her with regard to the settlement of the matter. That makes sense, and it ensures that the right people will be engaging in the conciliation or mediation process. On the union side, the appropriate person must be responsible for handling the matter subject to conciliation or mediation on behalf of the union.
The second matter, set out at subsection (3), is whether the employer or union co-operates with the conciliator or mediator to make arrangements to set up meetings. That will ensure that employers and unions cannot use delaying tactics to put off such meetings. In other words, the law would make it clear that both parties must treat approaches by the conciliator or mediator as a priority, and they must treat them seriously and constructively.
The third matter, set out at subsection (4), is whether the employer or union carries out the actions agreed with the conciliator or mediator. The additional requirements of subsection (7) are designed to ensure that these actions are carried out in a timely manner.
The fourth matter, which is set out at subsection (5), is whether, at meetings with all parties present, the employer or union should answer reasonable questions. That formulation recognises that there will be occasions when either party should be entitled to refuse to give a response to a question. For example, neither party should be required to divulge confidential information about individuals, or about the bottom line in its negotiating strategy. All those provisions are sensible. They map out the basic procedural features of conciliation or mediation.
Subsections (8) and (9) of new section 238B concern the evidence that conciliators or mediators may give to tribunals. We recognise that they may be required to give evidence. After all, no other person is as well placed to know what went on. Moreover, the conciliator or mediator has no vested interest. Their evidence must, therefore, carry particular weight. However, the work of conciliators and mediators is based on trust. Respect for their impartiality and professionalism is essential. Most are either ACAS officials or, in the case of mediators, individuals appointed by ACAS. In order that trust be maintained, the parties must know before they enter the process that confidential information passed to the service provider will not be revealed. Further, it is not appropriate that the service provider should give a subjective opinion, however professionally derived, on the behaviour or reasonableness of either party. We need to place some limits on the evidence that conciliators or mediators must provide.
Subsection (8) therefore ensures that case notes taken by service providers will not be admissible in evidence. The service providers are also required not to give evidence on anything without the consent of the party who communicated it that in their judgment would mean divulging either commercially sensitive information, or information as to the position of the party on the matter subject to the conciliation or mediation. Nor can they be required to offer an opinion as to the reasonableness of the questions that any party was asked at a meeting.
The net effect is to limit the evidential role of the conciliator or mediator to the provision of the essential factual information relating to a case. It will be for the tribunal to assess the reasonableness of the parties' behaviour, based on that factual information and the arguments advanced. If we did not make such a provision, the vital work of ACAS might be undermined. Parties might become reluctant to use those key services.
New clause 7 will improve the operation of the law. It makes it clear that parties must engage in the conciliation or mediation process once they have chosen to go down that path. They should not be allowed to sit out meetings or pay lip service to the process. The new clause will help the mediator and conciliator in their work, while preserving essential safeguards. It will give them the best opportunity, often in difficult situations, to help the parties to find a settlement to their disputes. I therefore commend the new clause to the Committee.