§ Mr. Richard Holt (Langbaurgh)
The Minister will not be surprised to hear that I have chosen to speak about industrial tribunals and to explain to the House how industrial tribunals work today compared with how they worked under the legislation which established them. I first spoke on this topic on 15 May, since when my views have been formally reinforced by recent experiences at Ebury street.
The idea of some form of industrial relations court was first mooted as long ago as 1919. Not until the passing of the Industrial Training Act 1964 to determine appeals for people assessed for levy were industrial tribunals as we know them set up. Their functions have gradually been extended by the Redundancy Payments Act 1965, the Docks and Harbours Act 1966, the Equal Pay Act 1970, and other measures. Today unfair dismissal and sex discrimination cases are no longer dealt with in the informal tribunal manner.
The idea of a tribunal is to provide a place where people can place their grievances fairly before an impartial panel. If an injury or injustice has been done, they can seek to have it put right. If the finding is in their favour a financial settlement will be made in compensation. It is right that there should be a court of last resort.
The concept of tribunals has changed. Originally the idea was that there should be an informal atmosphere unburdened by legalistic practices, prejudices and all the panoply of a court. Today, if one presents oneself at an industrial tribunal, one is in a court of law just as one would be if one was at the Old Bailey on a serious charge.
Employees should not be put in that position. Unless one is legally represented at an industrial tribunal, one's chances of success will not necessarily be measured by the merit or otherwise of the case. It will be measured by some obscure precedent of which one has no detailed knowledge, other than that which is read in the law reports and reviews.
This subject was raised a long time ago in the House by a number of distinguished former members. Mr. Charles Pannell, speaking in this Chamber in December 1970, said:
"Yet these are courts, and one of the prime objections I find to this Bill is that it will lift industrial relations into the purely legal atmosphere, where precedent will be added to precedent and very few things will be discussed on their merits."
What a far-sighted statement that was. He also said:
"I think this whole thing will be a lawyers' paradise. I came across this quotation which was used by Philip Snowden on the Trade Disputes Bill in 1927. I only use it because he quotes Winston Churchill in an earlier incantation".—[Official Report, 14 December 1970; Vol. 808, c. 1031–2.]
As we see, for a long time the lawyers have gradually been getting matters to go their way. Markers have been put down. Charles Pannell put down a marker when he used the words that I quoted. Lord Can, as he now is, also spoke in that debate in 1970. Mr. Pannell having made the comment that I quoted, Mr. Can, as he then was, apologised for not quite catching Mr. Pannell's remark. Perhaps the ball was a little too fast as it came off the face of the bat.
The idea of these courts was that they should not be terribly legalistic places. The idea was to have a friendly atmosphere, perhaps discussing matters over a cup of tea 532 or coffee; I would not suggest anything stronger. Let us do away with all the trappings of a court of law. That was why the House decided to call them tribunals, not courts.
My hon. Friend the Member for Warwick and Leamington (Sir D. Smith) was the Minister at the time of the debate in 1970. He said then that people would be put at their ease. He said:As I was saying, deliberate efforts will be made to put people at their ease. Generally in civil cases the panoply of the law, even though there will not be the full criminal court procedure, can put people at a disadvantage".—[Official Report, 14 December 1970; Vol. 808, c. 1072.]It was recognised by the Government at that time that the full panoply of the law and a legalistic framework would put people at a disadvantage, particularly if they were not used to the courts and the legal framework. In that same debate, the present Lord Wilson of Rievault said that he was interested in the word "informality" in the context of the new court, whatever it might be called.
There was concern then, and I am expressing concern, today, because the drift has gone on and on, so that now we no longer have that which was intended by Parliament in the first place. The Government must tackle this problem because in industrial relations we are drifting into waters that are familiar to us all: one can get justice in many cases so long as one can afford it, and frequently the cost is such that one is denied the opportunity for justice.
Another telling point is that because industrial tribunals are not courts of law a person's right of appeal, as might apply if the offence had been murder or rape or some trivial offence, is not there. Once a person has been found guilty in the eyes of the tribunal, he has no right of appeal unless he can prove a point of law. That is wrong.
Let me dwell a little on the composition of the tribunal. I can find no justification whatever for the chairman of a tribunal being a banister or a lawyer of a minimum of five to seven years' standing. They may never have been inside a place of commerce or industry—a shipyard, a mine or even a farm, although they may have that as a side interest. They have no depth of knowledge of the real world of industry and commerce, but they have knowledge of the law and they are there in a quasi-judicial capacity.
The other two members of the tribunal are nominated, one from the trade union's side and one from the employer's side. Does not that bespeak the fact that there is an intrinsic interest on both sides before a case comes before the tribunal? There has to be an idea of prejudice, otherwise there would have been no need to seek a balance. Why should there be one from either side? If people are to judge a case on its merits as it is presented by the appellant and/or the employer, surely, in the same way as the jury system takes virtually anybody and allows them to become jurors, we should have well thought of honest people of integrity, but not necessarily with a track record as employers or employers' hacks or trade union nominees. The view might then be expressed that they were a little more impartial in the way in which they looked at things.
Since I last spoke on this subject it has been brought to my attention that nominees from trade unions are liable not to be resubmitted by the trade union for consideration to remain on tribunal panels if too often they do not find in favour of the appellant. That is something new which has not been widely expressed previously.
One man came to see me, who, for obvious reasons, has to have anonymity, because he was concerned at the 533 pressure being put upon him through the new militancy within his trade union which said that it would not support him any further as a so-called independent member of a tribunal if he kept on finding in favour of the employers. [Interruption.] I am sorry if I hear an interjection from the Opposition Front Bench that that cannot be true. I shall supply privately to that hon. Member the name and address of the man in question. I have already supplied it to my hon. Friend the Minister. Therefore, that helps to make my case that we should be re-examining tribunals and their composition—
§ Mr. Norman Hogg (Cumbernauld and Kilsyth)
Will the hon. Gentleman make it clear that the intervention to which he referred did not come from the Opposition Front Bench?
§ Mr. Don Dixon (Jarrow)
The hon. Gentleman has referred to trade unions putting pressure on their nominees to industrial tribunals. If he took that claim to its logical conclusion, there would be no trade union nominees on the tribunals because in the vast majority of cases the tribunal finds in favour of the employer.
§ Mr. Holt
I accept what the hon. Gentleman says. He will see from Hansard that I said that this was something new, not something that has been going on since the courts were established in 1971. I am saying that it is a new phenomenon which emphasises my point that it is time for a full review of the tribunals their composition and their procedures.
§ Mr. Holt
Whether the hon. Gentleman takes it as an allegation or not, I will stick to the word "phenomenon". I do not think that bandying semantics will achieve very much. I am concerned about this because the impartiality of the tribunals is essential.
On the hon. Gentleman's point about the outcome of cases, I am approached fairly regularly and I talk to people quite a lot on this subject and I know that a vast number of cases do not come before the tribunals at all. Where compensation is paid one might reasonably assume that those cases might well have been won by the appellant if they had come to court. In those circumstances, the bare statistics do not tell the whole truth and it is hard for anyone to justify the argument one way or the other in that context.
With regard to the chairman—the lawyer or judicial person—I recently appeared at Ebury street in front of a Lady Mitchell. Everyone I speak to tells me that if a case comes before Lady Mitchell the employer's chance of winning it is nil. That seemed a very strong allegation, so I decided to investigate whether it was credible. I asked the Department to tell me how many cases had come before that lady as chairman and whether the outcome was for or against the employer, but I could not obtain the information. I then asked the industrial court, but again I could not obtain the information. There is more secrecy 534 and difficulty over this than over criminal proceedings in the High Court. That is highly unsatisfactory. Very learned lawyers have told me that as soon as they know the outcome of the Russian roulette system of allocating cases to court rooms they know what the outcome of the case will be.
That takes us a long way from the orginal idea of informal courts to adjudicate on individual cases of dismissal. We now have 15 centres and a large number of people, costing £20 million or more. It is time for a reappraisal of the system by the Government. Now that we have 15 years of case history, with 16,000 cases per year, we can see that the tribunals are not working out as originally intended. They are not cheap and they are not speedy. The average time for a case to come to court is 13 1/2 weeks. There is no incentive for the individual to find a job in that time because if he is then found to have been unfairly dismissed the compensation will be diminished. What we really need is a vast number of tribunals made up of the local great and good nominated and supplied from a wide variety of sources. If someone is dismissed, he can go very speedily—within 48 or 72 hours—before an informal tribunal. The test is not necessarily whether in law a person has been fairly or unfairly dismissed, but whether that is so in the eyes of the tribunal.
I know of one employer who was told, "You had another job of a lower grade which you did not offer to the appellant and therefore in law it was an unfair dismissal." On the next occasion, he offered a job in a lower grade but was told, "You cannot do that." and the case went against him. Therefore, the present structure is over-legalistic and costly.
Some employers are being forced to contemplate very high costs indeed for the legal profession in respect of cases brought by the Equal Opportunities Commission. The EOC has an unlimited fund of money from which it can pay lawyers. One furniture manufacturer will shortly face a five-day hearing as a result of the Ford decision. If the decision goes against him, he is liable to lose between £200,000 and £250,000 and could be faced with a legal fee of £20,000. That is not what industrial tribunals were intended for. That is what Mr. Charles Pannell said in 1970.
The informality does not exist by which there can be a free exchange of views. I challenge the Minister or any of his officials to go to Ebury street, to sit in on a hearing and to listen to the way in which it is conducted on a legal basis. One can present an opening statement, call witnesses, cross-examine, have re-examination and make closing submissions, but one should not necessarily look for truth or fairness. One should look for a case precedent during the last 15 years on which one can hang the case and outwit the other barrister who has not come across that loophole.
I attended a case in which there were 10 precedents. Let us imagine an employer with 25 or 30 employees. Let us suppose that he is living on the margin, and let us also suppose that the appellant turns up with a solicitor provided by one of the law societies or citizens advice bureaux who is armed with all the facts and figures and who takes cases on a regular basis. What chance does that employer have if it is purely a legal matter?
When I pressed the Government on this matter some time ago, the Minister's predecessor said that they were concerned that the tribunal courts were becoming over-judicial, over-legal, over-costly and not quick enough. But 535 18 months have gone by, and absolutely nothing has been done. It is almost as bad as trying to discover the boundaries of Cleveland. No one disputes that there ought to be some form of industrial tribunal at which those who feel they have been wrongly dismissed may have their cases assessed and heard. If there has been an injustice, there should be compensation; no one disputes that. But many people today—other than those with vested interests in the legal profession—would perhaps say that things have gone too far.
Can anyone seriously believe that the tribunals were intended to deal with cases such as that of the singing rabbi comedian which filled our papers, gave us all some amusement, but cost us all a lot of money? Can anyone seriously imagine that the tribunals were intended to deal with the case of a sacked football manager such as Malcolm Allison? The transcript shows how much he managed to smoke and drink in his short time at Middlesbrough football club at the expense of my constituents. Were the industrial tribunals set up for that sort of case? I accept that at the end of the debate on the Consolidated Fund a little lightheartedness comes in, without any harm, but it is a serious matter.
I urge the Minister to say that he will ask for a Select Committee of the House of Commons to be set up to examine the working of the tribunals today, as opposed to what they were intended to be, the drift into legalism, the drift into heavy cost and the drift towards the slowing down of the process of justice.
If the Government do not do something about the matter, I shall be as tenacious as any Opposition Member. I do not believe that any of the parties involved are being given a fair crack of the whip, other than the lawyers, and I do not want industrial tribunals ultimately to become the "Bleak House" of this century.
§ The Parliamentary Under-Secretary of State for Employment (Mr. Peter Bottomley)
I am grateful to my hon. Friend the Member for Langbaurgh (Mr. Holt) for raising the subject of industrial tribunals.
With regard to excessive legalism, both the Court of Appeal and the Employment Appeal Tribunal have made statements which demonstrate that they, too, are losing patience with legalistic tendencies. In particular, the president of the Employment Appeal Tribunal has on several occasions emphasised the need for industrial tribunals to look to the words of the statute for their authority in deciding cases. He said that they should not be too quick to draw comparisons with the facts of other cases and treat them as binding precedents, even those which have come to be widely known.
When my hon. Friend talks about excessive legalism, he describes it in exactly the right way. We need some degree of legalism. What we do not need is the excessive digging back into cases, with people thinking that they are being very clever in showing that they have done more research than anyone else. The important point, as my hon. Friend rightly emphasised, is to discover what happened, was it reasonable and was it fair.
My hon. Friend said that the only grounds for appeal against the findings of an industrial tribunal were legal. That is not a bad position to be in. If one were able to appeal on other than legal grounds, it would put the tribunal into great difficulty. Both claimants and respondents would be seen to be in an impossible position, 536 because the tribunal exists to decide what happened and whether it was fair, reasonable and lawful. If people were able to appeal on matters other than points of law, it would tend to reopen matters and to duplicate everything that the tribunal is there to hear.
My hon. Friend mentioned a minority of my predecessors. He has shown that the half-life of a Parliamentary Under-Secretary of State for Employment is not long. There may be times in the future when others will be able to refer to my hon. Friend in my position. I do not think that his approach as a Minister would be different from mine.
My hon. Friend invited me to go to Ebury Bridge road. I have been there twice, once as Minister, to observe and the other time when I was an employer who had been involved in the sad issue of redundancy and three of the people involved made a claim for unfair dismissal. I went along without legal representation..i did not consult a lawyer before I went. The work people were represented by their union representative. We managed to get three cases through in four hours, to the satisfaction of both sides. I do not think that it is relevant to say which way the case went, but the firm incurred no extra cost.
Before a case comes up for consideration by a tribunal—this applies not only to my case, but to all cases—there are opportunities for ACAS to work for individual conciliation. It is worth remembering that a minority of dismissal cases lead to claims for unfair dismissal. Of those cases that come forward, about a third are withdrawn, about a third are conciliated and about a third go before a tribunal. The claimant is successful in about a third of the cases that go before a tribunal. Taking the whole procedure together—the opportunity to withdraw, the opportunity to conciliate and the tribunal hearing—and even looking on the tribunals as legal instruments, I believe that the tribunals consider only a minority of a minority of cases. Looked at in the round, there are opportunities for people to come to an agreement on facts and to avoid putting their future and fate in the hands of three people.
My hon. Friend asked whether it should be necessary for the chairman of a tribunal to be legally qualified. I have not torn that proposal up by the roots to examine it. I doubt whether we can change the requirement. There is a split responsibility. The Department of Employment is responsible for administration and for proposing laws to Parliament, and appointments of chairmen are in the hands of the Lord Chancellor's Department. My hon. Friend will need to be persistent, as he has promised, in trying to get the two Departments to look at this matter together.
My hon. Friend asked whether I would refer the whole issue of industrial tribunal procedure and presumably, that procedure's part in industrial relations, to a Select Committee. It is not in Minister's hands to do that. No doubt, Select Committee members will read my hon. Friend's words.
My hon. Friend referred to excessive legalism, excessive cost and excessive time. I hope that my response will not be taken as diminishing my hon. Friend's legitimate concerns, but I believe that it is worth putting another perspective. This does not destroy my hon. Friend's argument, but it provides a separate perspective. In a way, that can be used as an explanation of the membership of the industrial tribunals.
My hon. Friend used what would almost call "South Down logic" in saying that balance in the membership of 537 the tribunal implies prejudice. I would say that balance engenders confidence and that people, because of their work responsibilities, will have differing perspectives. In many cases the tribunal's membership are unanimous. That suggests confidence. If people have differing points of view, it is not normally because of different prejudices, but because of different views on the facts put forward by the tribunal. It is not the case that people who are brought up in the same way, or who have the same training or experience, normally agree with each other. My hon. Friend is not a lawyer; nor am I. We are both personnel people. One cannot get lawyers to agree, especially if they are on different sides in a court case or tribunal hearing. Presumably they have not had the experience of being employers or trade union representatives.
My hon. Friend referred to a union suggesting to a person who had been nominated to be a member of an industrial tribunal that his re-nomination might be at risk if he did not find in a particular way in a certain percentage of cases. That is a serious allegation, which we regard as unacceptable if it can be demonstrated to be general. If people feel that they are being victimised in that way by a trade union or the nominating employers' bodies, I hope they will feel that it is their responsibility to ensure that the information is drawn to the attention of Ministers and, in the case of the TUC and the CBI, to the attention of those organisations.
My hon. Friend spoke about cost. I am not sure whether his figure of £20 million makes allowance for costs outside the public expenditure remit. My information is that the cost of the tribunals is about £13 million at present. We look to those with responsibilities for organising industrial tribunals to try to ensure that we get value for money. We hope that in the courts and tribunals efforts are made to ensure that financial management is regarded as seriously as in the private sector and that equal importance is attached to it.
§ Mr. Dixon
When the Minister talks about costs, will he bear in mind that he is talking about men's jobs and men's futures? I shall give him an example of what happened to me prior to the establishment of tribunals. I was a member of a safety committee representing employees in a shipyard. I was asked to leave the committee because the foreman wanted to see me. I was sacked two hours later. I had no opportunity to go to an industrial tribunal to put my case. I was put out of the yard and I had no appeal. That is an example of what happened prior to the establishment of industrial tribunals.
§ Mr. Bottomley
The hon. Gentleman makes a very important point. My hon. Friend talks rightly of employers who are operating on a knife edge and who face being broken financially by going before a tribunal. The hon. Member for Jarrow (Mr. Dixon) rightly observes that employees have been exposed to arbitrary discipline, to injustice, and to unfair dismissal, including when they have been carrying out important work to try to provide physical protection for those working with them. I become upset occasionally when others assume that a Minister, 538 even in the present Government, is automatically on one side or the other. There is a balance to be found, and where we bring the parties together before an industrial tribunal the balance is usually found.
My hon. Friend talked about time. With the built-in conciliation procedures, some time needs to be taken. One can argue that the conciliation service of ACAS, good though we expect it to be—we hope that it will become better, for there is always room for improvement—is a process that can be described as a talk around a table. Some parties, they are often employers, believe they require legal representation and try to get their legal representatives to talk to the ACAS conciliator. I hope that my hon. Friend and I would say, even if we were lawyers, that both the employee, or ex-employee, and the employer should consider carefully at what stage it is necessary, and whether it is necessary, to bring in legal representation, and whether it is not better to get the parties round the table.
§ Mr. Gordon Brown (Dunfermline, East)
Will the Minister comment on industrial tribunals in the Scottish mining industry? The coal board directorate in Scotland and the rest of the country has refused to give any undertaking that it will reinstate ex-employees if the industrial tribunals find in favour of dismissed miners, and has said that it would probably not reinstate many of them. Will the Minister comment on the position of the coal board as a good employer?
§ Mr. Bottomley
My hon. Friend the Member for Langbaurgh suggested that information should be available on individual chairmen. He will know that I cannot, will not and would not provide the information. If it were to be made available in one instance, the same information would be sought on every chairman. We would end up with research students obtaining PhDs and suggesting that there would be a 5 per cent. better chance by avoiding this court or that court. I do not think that my hon. Friend would want what he might regard as excessive statistics. He referred to excessive legalism, and both might go together.
§ Mr. Bottomley
There is some element of truth in that, but that is to be found in any system that is created by man. One can look for experienced interventions and review. With the leading members of the industrial tribunal system, the Lord Chancellor's Department, my hon. Friend's constant presence and genuine concern for these issues and the views represented by the hon. Members for Jarrow and for Dunfermline, East (Mr. Brown), I am sure that we can create a better system. We have a good one, and we can make it work better, and that requires our continued attention. I am grateful to my hon. Friend for initiating the debate. I hope that he regards my response as adequate and that we can continue our discussions.