Employment Bill [HL]

Part of the debate – in the House of Lords at 5:15 pm on 19 May 2008.

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Photo of Lord Jones of Birmingham Lord Jones of Birmingham Minister of State, Department for Business, Enterprise & Regulatory Reform, Minister of State, Foreign & Commonwealth Office, Minister of State (Foreign and Commonwealth Office) (also in the Department of Business, Enterprise and Regulatory Reform), Minister of State (Department for Business, Enterprise and Regulatory Reform) (Business and Regulatory Reform) 5:15, 19 May 2008

My Lords, the amendments of the noble Lord, Lord Hunt, propose a range of measures to promote greater use of conciliation and mediation in the early stages of an employment dispute. I personally thank him for giving oxygen and an airing to the whole issue. The more people in all walks of life—people who might come before a tribunal—are aware of the facility available, the more efficient, quick, cheap and understandable the process will be. I am sure that we all agree with the sentiment behind the amendments even if we do not feel that it is appropriate in this case.

The Government firmly believe that more disputes could benefit from early mediation and conciliation because the problems will be resolved at the earliest opportunity. We announced on 6 February that we intend to invest significant additional resources in ACAS's pre-claim activities to make this service more widely available. We are also investing significantly in improving the ACAS helpline so that more people are able to benefit from advice on the options available for resolving employment disputes. The noble Lord, Lord Hunt, asked whether it is possible for ACAS to draw on outside parties to facilitate and complement that. I will get back to him on that.

The noble Lords, Lord Hunt and Lord Henley, come from a profession where I spent 20 years. When I was an articled clerk, one of my first principals had a sign above his desk saying: "Settle out of court? Where's the fun in that?". I hope those days are over.

As I said in Grand Committee, we believe that the parties should choose the ways that make most sense to them in resolving their dispute. We believe that mediation by private providers can play a crucial role and intend to promote its benefits effectively and systematically. However, we believe that these amendments are unnecessary in the light of the measures that are already in place or that we are now proposing. Perhaps I may explain that. I shall consider each amendment in turn, starting with Amendment No. 11.

The first two elements of Amendment No. 11 would include mediation within the heading of the section specified of the Employment Tribunals Act 1996, and insert into subsection (2) that a conciliation officer may use mediation or conciliation when endeavouring to promote a settlement, before proceedings are instituted. Mediation and conciliation are both elastic terms with disagreement among practitioners about what each means in practice. ACAS uses a variety of techniques, including telephone discussion and face-to-face discussion, in seeking to resolve disputes at the early stage. I do not believe that including both these terms in the legislation would have any practical impact. The existing legislation already enables ACAS to use a variety of techniques to resolve disputes. The amendment changes nothing.

The third element of Amendment No. 11 seeks to insert a provision that ACAS conciliation officers may engage outside mediators to assist in the settlement of proceedings. Nothing now prevents conciliation officers suggesting to parties that the help of outside mediators could be worth while. That is done in individual cases every day. ACAS would not, however, pay the fees of such mediators; it has to be right that parties themselves should bear their cost if persuaded of the benefits. The noble Lord's amendment could have the effect of requiring public funding for private mediation.

Clause 5 provides for ACAS's existing duty to conciliate in cases where no claim has yet been presented to an employment tribunal to become a power. Amendment No. 12 would remove that change. We cannot support this. It may be helpful to explain the context of our proposed change. ACAS currently has a duty to offer conciliation in certain cases which are capable of becoming the subject of an employment tribunal claim where both potential parties request it, or, where one party makes a request, the conciliation officer judges that there is a good prospect of success. That duty has been on the statute books since the 1970s. During the 1980s, ACAS increasingly found employers asking ACAS to assist with cases which were never likely to become the subject of an employment tribunal claim, at the taxpayer's expense. In response, the ACAS council decided to interpret the duty strictly in the spirit in which it was intended, so that the pre-claim conciliation service could be focused on cases which were otherwise more or less certain to become the subject of a tribunal claim. As a result, the numbers carried out have been small.

Following overwhelming support for more early ACAS conciliation from respondents to the consultation on the Gibbons review, the Government will invest up to £37 million in additional conciliation resource and in improving the ACAS advice service, which, among other things, will be able to explain to people what help is available to resolve disputes and offer the statutory ACAS conciliation service in cases which seem likely to benefit from it and where the parties wish it. There is a risk that demand for ACAS conciliation services will exceed supply once the service is actively made available as we now intend. We therefore wish to ensure that ACAS is able effectively to manage the new case load without having unduly to restrict the use of its services. That is why we wish to change the existing duty to conciliate to a power to enable it to do so without being exposed to legal jeopardy.

Amendment No. 13 would add to Section 18(6) of the Employment Tribunals Act words enabling the encouragement of the use of mediation as a first step in any conciliation process. The subsection already provides for this through a broad requirement that,

"a conciliation officer shall, where appropriate, have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances".

Finally, Amendment No. 10 also seeks to encourage employers to use conciliation and mediation. ACAS plays a key and valued role in the resolution of workplace disputes and the Government are supportive of codes of practice issued by ACAS. As your Lordships will be aware, ACAS is revising its code of practice on disciplinary and grievance procedures to be principles-based and concise, supported by fuller non-statutory guidance. Tribunals will then be able to consider the appropriateness of parties' behaviour in the particular circumstances of a case against the principles set out in the code, in line with the conclusions of the Gibbons review and the public consultation. This is a sensible and balanced way of encouraging employers and employees to follow the principles of good practice in the early resolution of workplace disputes and overcomes the unforeseen and undesirable results experienced when detailed procedures were enshrined in primary legislation.

I circulated an early draft of the code in Committee. The draft has now been issued by ACAS for public consultation. All interested parties can comment on it to ACAS. It clearly says that employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace, and the foreword to the draft makes specific reference to third-party assistance. ACAS will also be considering including further guidance on obtaining outside help, such as mediation, in its accompanying detailed guidance booklet. That might give even more help and assistance on the issue raised by the noble Lord, Lord Hunt.

In conclusion, these amendments are unnecessary as there will be more than adequate measures to encourage conciliation and mediation where it is appropriate, whereas legislating would lead us back into being overly prescriptive and lacking flexibility. Please do not mistake the Government's opposition to these amendments for a stance of not encouraging mediation and conciliation. That must be the way forward, but we must ensure that we do not remove flexibility or become overregulated and overly prescriptive, and ultimately fall foul of the law of unintended consequences.