Clause 34 - Procedural fairness in unfair dismissal
Employment Bill
12:15 pm
Mr Rob Marris (Wolverhampton South West, Labour)
The amendment seeks to clarify section 98A of the Employment Rights Act 1996. The meaning of new section 98A(2) and the context in which it sits have been the subject of much debate on Second Reading. Several individuals and organisations have expressed concern about the way in which the new regime would operate, particularly in relation to the overturning of Polkey. The amendment would clarify and probe those issues.
Under new section 98A(1), unfair dismissal will take place if there is a breach of the basic procedure of schedule 2. That will lead to four weeks of compensation as set out in new section 112(5). The right to be accompanied under the schedule 2 basic procedure was clarified by the Minister when we debated it; he kindly confirmed that. The right to a fair hearing is implicit in schedule 2, and I hope that he will be able to make that explicit now. If there were no proper investigation under the basic schedule 2 procedure, I hope that he will also confirm that the employer who failed to carry one out would be caught by new section 98A(1)-a breach of the procedure-which would lead to an automatic finding of unfair dismissal.
I understand the Government's desire to encourage employers to adopt at least the basic procedure by introducing it statutorily, but we also need to encourage enhanced procedures-better than those in schedule 2-in the interest of better industrial relations and of having fewer cases come before employment tribunals because differences have already been resolved in the workplace. New section 98A(2) overturns the long-standing case of Polkey in 1998, which was raised on Second Reading. I am anxious that overturning Polkey will lead to employers not using the enhanced procedures and hiding behind the no-difference test. They might say that they would have got rid of the employee anyway and the fact that they did not follow the procedure does not matter because of what is stated in the legislation. I appreciate the Government's desire, encompassed in the Bill, to encourage enhanced procedures and the fact that, if we did not have the new subsection, an employer might be hoist by the petard of a minor breach of an enhanced procedure. If an employer were so hoist, he would be less likely to have an enhanced procedure for fear of going wrong, and would be more likely to fall back on the basic procedure under schedule 2. Nevertheless, proposed new subsection (2) raises questions, some of which I have tried to elucidate today. The Minister mentioned a forthcoming review of such issues. I seek his assurance that, in overturning Polkey, the review will establish whether proposed new subsection (2)-as drafted, or in the light of my amendment-dilutes enhanced procedures that improve on the basic schedule 2 procedure, thereby enabling employers to hide behind the wording, or whether the subsection results in employers moving away from enhanced procedures that operated before the Bill's enactment.