Lord McIntosh of Haringey (Deputy Chief Whip (House of Lords), HM Household; Labour)
My Lords, that illustrates very clearly the difference between us. My noble friend Lord Wedderburn and others seem to think that the fact that an employer can show that he would have dismissed anyway gets him off the hook. That is not the case. That is not what the Bill says. The issue is whether, as my noble friend and others seem to think, claiming no difference will by itself make a dismissal fair, because it has happened, because that is the fact of the matter, or whether, as we think, it must also be fair in all other respects. That is the situation. An amendment accepted at Commons Committee made that clear, although we at the time considered that it was implicit in the clause as originally worded.
That is the key to the difference between us. It has to be fair in all other respects. That is why we have the words "by itself" in the Bill. The amendment that we accepted in the other place made that clear, but I appreciate that the concerns remain, perhaps because the clause does not specifically refer to the need for the dismissal to be fair in other respects. Amendments Nos. 94 and 95 both suggest additional wording which specifically refers to fairness. The noble Baroness, Lady Turner, made that point quite legitimately in moving Amendment No. 94.
I hope that it will be helpful if I explain why this is unnecessary. To defend an unfair dismissal claim, an employer must first show that he dismissed the employee for one of the potentially fair reasons set out in Section 98 of the Employment Rights Act 1996. As I said to the noble Lord, Lord Lea, that is still there. Nothing in Clause 34 will change this. The employer who wants to plead "no difference" will still, in the first place, have to convince the tribunal that he had a fair reason for the dismissal.
Next, and finally, Section 98(4)(a) of the 1996 Act requires the tribunal to consider whether the employer acted reasonably in dismissing the employee for that reason. Clause 34 changes this only by saying that a failure to follow a procedure beyond the statutory minimum will not by itself be unreasonable for the purposes of Section 98(4)(a) if the employer can show that it would have made no difference to his decision to dismiss. The words "by itself" make it clear that the employer must still act reasonably in all other respects.
Other wording about fairness is therefore unnecessary to ensure the limited nature of the change, which we have always stressed is not only unnecessary, but unhelpful. The amendments introduce the words "fair" and "fairness" without defining them. As my noble friend Lord Sainsbury said in Grand Committee, that would risk the development of a different test for new Section 98A from that which the tribunals otherwise apply in dismissal cases.
The noble Lord, Lord Wedderburn, when winding up the debate on the previous amendment, described the Polkey case and a particular application of it. On the facts of that case, as he described them, there would have been a clear failure to follow the statutory disciplinary procedures and therefore there would have been an unfair dismissal.