Clause 34 - Procedural fairness in unfair dismissal
Employment Bill
5:30 pm
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
The hon. Member for Runnymede and Weybridge must have had a bad time at the Adjournment debate, as he is not his usual, charming self. Understandably, he could not be with us in Committee this morning.
I struggle to see what great concessions I have made on the clause. We have had a good debate, and we went into the matter in some detail. My hon. Friend the Member for Wolverhampton, South-West called the clause the lynchpin of the Bill. We discussed clause 29 and schedule 3 and agreed that there should be a statutory minimum procedure. We agreed that there were cases where even those statutory procedures would not apply, such as cases of bullying, harassment and violence, which will be set out in regulations. We also agreed that a modified procedure is needed to deal with certain cases of grievance and discipline.
Clause 34 deals, in effect, with the no-difference test. This morning's debate made it clear that we have introduced those basic provisions and that employers are expected to comply with them. If they do not, a dismissal will automatically be unfair. We also discussed the fact that the change to Polkey referred to discipline procedures above the minimum.
Several Opposition Members, including the hon. Member for Hertford and Stortford (Mr. Prisk), expressed concern that there may be an inconsistency in having minimum procedures, encouraging people to abide by them and then making it seem as if they did not have to abide by them because the no-difference test would be restored. I explained that we were setting a minimum standard, encouraging people to move to a more sophisticated system and taking account of the ACAS code. If we did not reverse the no-difference test, employers would rightly wonder why they should move to a more sophisticated code if they could be found to be wrong on a minor error of procedure, irrespective of the fundamentals of the case.
I accepted the amendment tabled by my hon. Friend the Member for Wolverhampton, South-West on the basis that we had made it clear that nothing in clause 34 changed the requirement of the employment tribunal to ensure that the case of unfair dismissal was fair in other respects. That obligation is placed on the tribunal. My hon. Friends believed that that was not clear enough in relation to clause 34(2)(c), and I therefore accepted the amendment in the spirit of making clear what we had set out to do. We are criticised for accepting sensible amendments and for not accepting them. The amendment is sensible, and we accept it. I reassure the hon. Member for Runnymede and Weybridge that that makes no difference to the fundamentals of the Bill, to the issues on which we consulted or to the message that we sent out to employers and employees about the new rights and responsibilities in the Bill.
I also accepted the other amendment. Once again, we are damned if we give no warning of forthcoming amendments and we are damned if we listen to a carefully argued amendment and respond by saying
that we will table an amendment. The amendment does nothing other than point out, as the hon. Gentleman did, that there was an error in the drafting. Because of that error, an employer who followed only the modified procedure that we agreed last week under clause 29 would automatically be found to have dismissed unfairly. We must deal with that and we are doing so through an amendment. It is no big deal. Employers' organisations are unlikely to be marching on Downing street tomorrow. This part of the Bill does not fundamentally change anything.
The concerns of my hon. Friend the Member for Manchester, Central are understandable and other Government Members have also asked me to think again. However, I believe that the balance is absolutely right. This morning, my hon. Friend the Member for Wolverhampton, South-West asked whether we would keep the process under review. Once it has been implemented and has had time to take effect, we will consider the employers' argument that reversal of the no difference test will encourage participation in the fuller procedures. As to my hon. Friend's concern—shared by my hon. Friend the Member for Manchester, Central—we would obviously examine the position carefully, but we believe that the balance is just right. None of the amendments—neither the one we accepted, nor the other intended for Third Reading—disturbs the balance. Clause 31 is not being amended. Clause 34 is being amended to make it consistent with clause 31. We are therefore talking about two, not three, amendments here.
If members of the Committee have listened carefully to the debate and examined the explanations offered, they should feel happy that we are amending the provisions for the better, without fundamentally changing the principles. The error pointed out by the Liberal Democrats needs to be addressed.
The hon. Member for North Norfolk articulated his concerns about summary dismissal. On the basis of my long experience of these matters—I know that he has had experience too—I do not share those concerns. If we get the regulations right—there is at present no requirement for these procedures—it is wrong to insist that employers have to keep someone on the premises—