Determination of proceedings without hearing

I beg to move amendment No. 13, in clause 4, page 4, line 13, leave out ‘only’.

With this it will be convenient to discuss amendment No. 12, in clause 4, page 4, line 14, at end insert—

‘(za) the proceedings relate to a money dispute, and’.

This is a probing amendment, to open up this important clause to wider discussion and perhaps clarification.

Michael Gibbons’s 2007 report “Better Dispute Resolution: A review of employment dispute resolution in Great Britain” recommended that some cases before the tribunal should be dealt with by a fast-track procedure. His emphasis was on the settlement of monetary disputes on issues such as wages, redundancy and holidays, as the legal points at issue were simple and would be resolved more quickly by expert determination. However, in the debate in the other place the matter got confused, and it is necessary to make it clear when a full tribunal hearing is required and when a fast-track individual hearing is appropriate. Specifically, there seemed to be confusion in the other place about whether the Government intended the process to apply solely to monetary claims.

The balance that must be struck is between comprehensiveness, fairness and cost. The aim of an abbreviated fast-track process must be to deal quickly and fairly with those cases that do not need a full tribunal. I support proposals for a system that, in the words of the Minister in the other place,

“will deliver swift and effective justice and help many claimants to receive redress early, potentially relieving them from hardship and uncertainty”.

The Minister went on:

“Respondents will also benefit from having cases determined at an early stage, freeing them to concentrate on their businesses.”—[Official Report, House of Lords, 4 February 2008; Vol. 698, c. 487.]

That is all well and good, but care must be taken not to place an individual in a weaker position for the sake of expediency. We need to limit the role of single-member tribunals to dealing with those cases that are so clear-cut as to be almost procedural. There is something worrying about limiting a claimant’s right to a review by a full panel in all but the most simple and incontestable cases.

If we are to introduce a written consent process, as envisaged by proposed new subsection (3AA) to section 7 of the Employment Tribunals Act 1996, provision must be made to ensure that that cannot be abused. I am especially concerned about the role of deemed consent to a single-person tribunal. To that end, I would be grateful if the Minister could make clear to the Committee the limits of the proposed new subsection: the claims to which the fast-track process would apply, and what form consent in writing to a single-member tribunal would take.

This comes down to the good old article 6 question of whether people are having a fair hearing. The bigger issue that needs clarification is proposed new subsection (3AB). Logically, if both parties agree that there should not be a hearing, there will not be one. That is entirely fair. There is a point about fast track. If we aim to resolve things prior to tribunal in the conciliation process, one would hope that there was a fast track in initial determinations to suggest such a resolution.

We see no reason why the word “only” should disappear, although it seems otiose in the circumstances, as the tribunal would have to be given a power to determine something without a hearing. Therefore if it does not have that power, it will not be able to determine it without a hearing. That should be limited. The circumstances are reasonable, but some clarity is needed under proposed new subsection (3AB) because employers who feel that they have responded and are then told that their response does not count would have a real problem. Perhaps the Government should considering tabling an amendment on Report.

I should like to say how much I look forward to serving under your chairmanship, Mr. Bercow. I appreciate the point made by the hon. Member for Huntingdon, but the amendment does not seem to address the key issue. If there is mutual consent or if one side has not bothered to put in a substantive case, it seems obvious that the matter should be fast-tracked, entirely independently of whether it is a money issue or something else. I take the point made by the hon. Member for Birmingham, Yardley: we need to be clear about the exact meaning of proposed new subsection (3AB) because there should not be any doubt. We have sufficient trust in the tribunal system to believe that a reasonably adequate request for a hearing would not be dismissed purely on frivolous procedural grounds.

Does the hon. Gentleman agree that it is particularly important to indicate to a respondent that their response has not been accepted and that they could submit an alternative before any written determination?

That sounds reasonable to me.

Indeed. The point has been made about how an employer as a respondent has the opportunity to make his case. I ask the Minister to look at the current procedural rules more generally. Perhaps I can give him a short example of a local case that came  to my notice. The employer did not receive the notice in time, or so he claimed. He sent something in slightly late—two days after the final date. The rules currently say that he cannot be heard. The only option was to go through the whole process with him sitting there watching, but not taking part, and then subsequently appealing to the AT to see whether there was another way. I do not know what happened as a result of all that. But the draconian nature of the current rules, which debar people from taking any part in proceedings, is unlike any other jurisdiction. In every other part of the legal system, so far as I am aware, by incurring a penalty or making a payment to the court or whatever, there is a way back into the proceedings. Uniquely within the tribunal rules, that does not apply. I ask the Minister to have a look at that if he agrees that it is an injustice.

The clause was indeed the subject of considerable debate in the other place. That is understandable, because it deals with a traditional part of the tribunal process, and perhaps people are led to expect a full hearing with the tribunal chair and two lay members—or wing members as they are sometimes known. The question posed is whether that is always necessary in all jurisdictions and in all cases. Earlier we discussed faster and perhaps less costly mechanisms for resolving disputes, which is really what the clause is concerned with. The question at the heart of amendment No. 17 is: “If we are to have a system of written determinations or determinations without a hearing, what jurisdictions should that cover?”

The first point to make is that tribunal chairmen can already sit alone and deal with certain jurisdictions, so that is not new. I have written several times to hon. Members who have asked what jurisdictions I have in mind. They are largely, but not entirely, the same as those jurisdictions in which a tribunal chair can already sit alone—unlawful wage deductions, breach of contract, redundancy pay, holiday pay and minimum wage cases. The only difference is the addition of holiday pay.

That is the type of case to which we are referring, and the question at the heart of the amendment is how we define that in the Bill. Our intention, if introducing such a procedure, is to define in secondary legislation those jurisdictions to which it would apply. Were such a system to be introduced and prove successful, those jurisdictions might or might not change over time in the light of experience. The Government’s view is that it makes more sense to specify the jurisdictions and the type of cases to which the procedure would apply in secondary legislation. Also, the regulations and rules would be laid before Parliament, which would allow us greater flexibility to amend the jurisdictions in the light of experience while of course retaining proper parliamentary oversight. That is a judgment about what needs to be on the face of the Bill, and it is how we intend to proceed.

The hon. Member for Birmingham, Yardley asked about proposed new subsection (3AB). The secondary legislation consultation looked at default judgments and how parties might have a way back into proceedings, a point to which my hon. Friend the Member for Hastings and Rye also referred. We are currently considering the responses to that and will announce any changes we might make in due course.

In conclusion, I believe that the type of jurisdiction is best defined in secondary legislation. That would allow us the flexibility to make adjustments in the light of experience if necessary.

I thank the Minister for his clarification on the areas to which the clause is likely to apply. He said that that would be finalised in secondary legislation. I will go away and think about whether items of such importance merit being put on the face of the Bill, rather than going through secondary legislation, and I might well come back to that at a later stage. I take the point made by the hon. Member for Broxtowe that the amendment only loosely makes the point that I intended to make, but I raised it on a probing basis because I thought it was important that we had a debate about the fairness of the procedures whereby someone would effectively give up their rights. I think that the hon. Member for Hastings and Rye and, to an extent, the Minister recognised that. I am pleased that we have had the debate and will think a little further on it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.