Clause 34 - Procedural fairness in unfair dismissal
Employment Bill
4:40 pm
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
That is true, but that is not why I asked hon. Members not to press it. A number of examples were given to show the way in which the Polkey judgment has worked and why the restoration of the no-difference test would, in my hon. Friend's view, be damaging. I explained that those examples would still have been unfair dismissals because they would not have met the basic need to be fair in all other respects.
I gave another important example of the way in which the current procedures do not work adequately. An employer who dismissed a number of employees for racially harassing their colleagues lost his case solely because of a procedural error, even though the tribunal acknowledged that it would have made no difference to the outcome. It applied the only measure that it is allowed to apply, which was an award of no
compensation to the employees—the worst of all possible worlds. Although the case was classified as unfair dismissal, there was no compensation and no one felt satisfied with the outcome. The background to the case was that the manager who had been charged with hearing the initial appeal decided to double check the complainants' point of view. Because the dismissed employees did not see transcripts of those second interviews with the complainants—they had had full opportunity to consider and comment on the original witness statements—the tribunal found that dismissal was unfair on procedural grounds. Under the new proposals, the tribunal would have discounted the procedural error since it made no difference to dismissals that were fair in every other way.
The Bill meets the requirement to ensure that dismissals are fair in every other respect. Amendment No. 78 seeks a spelling out of the fact that a no-difference line of defence where a procedure has not been followed does not, by itself, mean that the employer has acted reasonably. The drafting is fine and we are prepared to accept the amendment, but hope that amendment No. 27 is not pressed.