Lords Amendment: No. 48, in page 17, leave out lines 3 to 7 and insert—
(1) In determining for the purposes of this Act whether the dismissal of an employee was fair or unfair, it shall be for the employer to show—
(1A) In subsection (1)(b) of this section the reference to a reason falling within this subsection is a reference to a reason which
§ 11.0 p.m.
§ The Solicitor-General
I beg to move, That this House doth agree with the Lords in the said Amendment.
It may be for the convenience of the House if, with this Amendment, we discuss Lords Amendments No. 49, in page 17. line 16, at end insert—(1B) Where the employer has fulfilled the requirements of subsection (1) of this section, then, subject to sections 23 and 24 of this Act, the question whether the dismissal was fair or unfair shall be determined in accordance with the following provisions of this sectionNo. 50, in page 17, line 41, leave out from beginning to ("shall") in line 10 on page 18 and insert—() Subject to subsections (2) and (3) of this section, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances he acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that questionNo. 57, in Clause 31, page 23, line 38, leave out "good reason" and insert "reason fulfilling the requirements of section 22(1) of this Act"
and No. 326, in Schedule 6, page 154, line 14, at end insert—. Where in accordance with the regulations an industrial tribunal determines in the same proceedings—1236
- (a) a question referred to it under Part I of the Redundancy Payments Act 1965, and
- (b) a complaint presented under section 102 of this Act,section 9(2)(b) of that Act (whereby a dismissal is to be presumed, unless the contrary is proved, to have been by reason of redundancy) shall not have effect for the purposes of the proceedings in so far as they relate to the complaint under section 102 of this Act.The purpose of these Amendments is, in response to observations made both in this House and in another place about the unfair dismissal provisions, to make plain where the burden of proof lies at each stage.
§ Amendment No. 48 alters the first part of Clause 22(1) so as to make it plain that it is for the employer to show first what was the reason for the dismissal and, secondly, that the reason was one of those listed in the subsection as it stands or some other substantial reason relevant to the work which the dismissed employee was doing. The opportunity of showing some other substantial reason replaces the idea to the same effect which was in subsection (4) originally, save that it makes it plain that the reason has to be a substantial one and not simply a good one.
§ Amendment No. 49 is one which makes a small change in the structure of the Clause but which has no new effect.
§ Amendment No. 50 removes the original provisions in subsection (4) which were a rather lengthy way of showing some other good reason, and removes from the employee the burden of showing the unreasonableness of the employer's decision as to the weight and significance of the reason justifying the dismissal. Instead, Amendment No. 50 now leaves it for the tribunal to decide, once the employer has shown the reason for the dismissal, whether the employer's action in regarding that as a sufficient reason is reasonable.
§ The Clause still maintains the employee's protection in subsection (2) regarding a dismissal on grounds of taking part in trade union activities and still preserves the express provision in subsection (3) for a man who is unfairly selected in a redundancy situation.
§ Amendment No. 57 is a consequential one in Clause 31 because the idea of a good reason has been replaced by the more solid one of a substantial reason.
§ Amendment No. 326 is one relating to the situation which may arise where a claim is brought before a tribunal 1237 alleging that the employee is entitled to compensation either on the ground of redundancy or on the ground of unfair dismissal. In that situation, it removes the presumption contained in the Redundancy Payments Act to the effect that the dismissal must be regarded as due to redundancy and leaves it to the tribunal to decide whether the claimant has shown that it was due to unfairness of dismissal or to redundancy as the alternative ground of his claim.
§ The upshot of the provisions, included in response to a case strongly presented by the Opposition in another place, is to make plain where the burden of proof lies regarding unfair dismissals: that the employer is obliged to show that the dismissal was for one or other of the reasons set out in Clause 22(1) or some other substantial reason.
§ The total effect of the provisions is plain and fair and in accordance with the Government's intention, which was made clear in response to representations by the Opposition both here and in another place.
§ Mr. Rose
One thing of which I was certain on reading the Clause dealing with unfair dismissal—and I am convinced in my belief having listened to the hon. and learned Gentleman—was that these provisions displayed many curious lapses and ambiguities in drafting, to say nothing of certain matters of principle, such as the question of reinstatement rather than re-engagement, which we were unable to debate at an earlier stage. In many respects, the problems which the Solicitor-General has outlined might have been dealt with properly at an earlier stage if we had had the time in Committee and on Report to discuss unfair dismissal. Of those things which we were prevented from discussing, I felt that the question of unfair dismissal was the most important.
I am not surprised that the Amendments which have come back from another place are partly in response to Amendments moved by some of my noble Friends. It is wholly unsatisfactory that problems as fundamental as the right to reinstatement and the burden of proof for unfair dismissal should not be debated first in this House, but in the other place. I acknowledge that this group 1238 of Amendments attempts in some measure to meet some of the points raised by my noble Friends in the other place.
I assure the Solicitor-General that in raising a number of legal points and technicalities, it is not a question of hair splitting. There are many problems which disturb not only Members of this House, but members of the legal profession and the trade union movement.
§ Amendment No. 48 places responsibility on the employer to show the reason for the dismissal and then to show that it falls within the subsection specifying the possible reasons. I am still unhappy about the drafting. What he should have to show under (a) is surely that there was justification under the subsection. I think that there is a misuse of the word "reason", as if it were synonymous with justification. This is an important point of drafting which has not yet been ventilated.
§ I think that there is a genuine attempt here on the part of the Government to meet the Opposition on the question of the onus of proof; but the onus appears merely to be to show that there was a reason for the dismissal and that it was one of the specified reasons listed.
§ I accept that Amendments Nos. 49 and 50 go some way towards meeting the problem of the onus of proof, but they do not wholly answer it because the employer has to show only sufficient reason, and reason is defined in subsection (1)(a). Surely what is required is for the employer not to have sufficient reason, but sufficient justification for dismissing the employee under the heading of one or other of the reasons specified. It is a vitally important distinction. I hope that the Solicitor-General will turn his mind to it.
§ I can only hope that when an industrial tribunal has to deal with these matters it will treat the word "reason" in Amendment No. 50 as if it were the word "justification". I think that it would help towards that if today the Solicitor-General stated that this was the intention. That might assist tribunals in this difficult task.
§ I wholly accept also that as a result of the original Clauses and the Amendments that follow, the Solicitor-General must insert Lords Amendment No. 326. Again, I regret that for the purposes of 1239 unfair dismissal, he has not adopted the same type of formula as was adopted in Section 9(2)(b) of the Redundancy Payments Act—in other words, placing the onus fairly and squarely on the employer by means of a presumption that has to be rebutted by the employer.
§ I have had the pleasure, if that is what it may be called, of appearing before a number of industrial tribunals. In redundancy cases, the presumption of redundancy is a great help to the worker who is seeking compensation, because often the worker does not have exact and precise knowledge of the detailed operation of his employers. It does not in any way prejudice the fair and honest employer who can always rebut the presumption, but it is important to know where the presumption lies. A similar presumption in the case of unfair dismissal, in cases brought under that heading, would easily have placed the onus of proof fairly and squarely where it should lie—that is, upon the employer.
§ I foresee difficulty in what I call the "either/or" case where there may be an unfair dismissal or there may be a redundancy. I know that the Solicitor-General has tried to deal with this problem in the Amendments. Again, however, the burden to be discharged is what matters and a rebuttable presumption would, to my mind, have been the most convenient way of dealing with this matter and would have brought about a far less complicated structure in the Bill. Redundancy would only be presumed where the employee took action under that heading and it would be a defence, if it was established, to an action for unfair dismissal. I therefore see no problem in that.
§ In any event, subsection (3) shows that the problem of overlap may still exist concerning cases when there is a selection for dismissal, when there is a redundancy but the employer has to decide who will be made redundant. He may exercise that discretion fairly or unfairly. In subsection (3), the word "reason" is used in its correct sense; it is a reason rather than a justification. That reinforces the problem, to which I alluded earlier, of the manner in which the word "reason" is used in other 1240 parts of the Amendment where it means something entirely different.
§ Clause 22(3) uses the words "it is shown". I am not clear, although I have read it carefully, whether Lords Amendment No. 48 will apply subsection (1) to subsection (3). It specifically refers to subsection (2). If I am given the Solicitor-General's assurance, I shall accept it, but I cannot see a reference to subsection (3). Subsection (1)(a) and (b) are applicable to subsection (2). There is no specific reference to their applicability or otherwise to subsection (3). I should like to have an explanation from the Solicitor-General about this.
§ Another problem arises concerning the word "unreasonably" in Lords Amendment No. 50. We are all familiar with the problem of what is reasonable and what is unreasonable in law. It is a problem to which the courts have to turn their minds and with which we are familiar in, for example, the matter of reasonable care. It is a concept that we accept as routine in our legal system.
§ 11.15 p.m.
§ But what is not reasonable is the fact that a case of dismissal might well present a problem of a very different order from the normal problem of what is reasonable and what is not, as it has to be dealt with from day to day in the courts. I say "of a different order", because we have to deal with problems such as reasonable conduct. Nothing in the Bill makes it clear whether reasonable conduct applies merely to conduct at the place of work and during the period of employment or conduct in a general sense, which may take it outside the sphere of employment.
§ The subjective factors in industrial relations are such that what is reasonable to an employer and what is reasonable to an employee are very different things, and whereas the concept of what is reasonable may easily be applied by the courts to many other problems, it presents extreme difficulty in industrial relations, because of the relationship—and sometimes the antagonism—between employer and employee. A clear statement on the question of onus, again by means of a rebuttable presumption—showing justification rather than reasonableness—rather than using the concept of what is 1241 reasonable or unreasonable, would have avoided that problem.
§ The fear is that we are dealing with conduct that may occur outside the employment. We have not been unmindful of the fact that there have been recent examples in education, where conduct outside the employment has been used as a pretext for the dismissal of persons employed in that sphere. This is a practical problem, which could be solved merely by the presumption that all cases of dismissal were cases of unfair dismissal unless the employer proved otherwise to the satisfaction of the tribunal.
§ It would be outside the bounds of order to go into great detail on the Clause itself, but I want to deal with subsection (1)(a), which is extremely wide when linked to subsection (6) and this Amendment, together with Lords Amendment No. 50, which does nothing to help narrow the definition.
§ I have dealt with a number of what might be termed technical or legalistic points. I am sure that some of my hon. and learned Friends—as well as those who have experience in the trade union movement—will have something to say about the practical problems of unfair dismissal; all that I say is that although the Amendments meet some of the objections raised in another place, if we had had time to discuss the matter in detail earlier all this difficulty could have been avoided. Suggestions could have come from hon. Members on both sides of the House about the question of onus, and the manner in which unfair dismissal should be dealt with, and a far more satisfactory conclusion could have been reached.
§ We are left with a pretty tatty piece of drafting—a rather unsatisfactory position for the tribunals in interpreting the law. That is a direct result of the abuse by the Government at an earlier stage, when they imposed a guillotine and prevented the discussion of an important part of the Bill—a part that, unfortunately, we did not discuss in this House either in Committee or on Report.
§ Mr. Greville Janner (Leicester, North-West)
I echo what has been said by my hon. Friend the Member for Manchester, Blackley (Mr. Rose) about the importance of this part of the Bill, which, in my view, is likely to have, actually or poten- 1242 tially, quite as great an effect on most workers, at every level, as any others of its provisions. It is a disgrace that we have not had opportunity to consider it in detail up to now.
At this stage, we can consider an Amendment which puts the burden of proof on the employer, but it is essential that we look at the realities of the situation and see how it is likely to work in practice. Although it will undoubtedly, and rightly, make it more difficult for an employer to dismiss, and an employer will have to be much more careful in so doing, it will in one sense put a premium on summary dismissal. Drafted as it is, it will, in my view, encourage employers to dismiss without notice.
At present, it is possible to dismiss anyone at any time by giving notice or pay instead, and an employer who dismisses workers summarily cannot be forced to pay them any more by way of damages than they would have received had they been dismissed with proper notice. When the Clause, as amended, comes into force, the employer who dismisses fairly will be in the same position as today, but an employer who dismisses unfairly may have to pay damages or compensation up to £4,160.
A major employer may be pleased to pay £4,000 to be rid of a trouble-maker for ever. If a shop steward is prepared to close down a business by his activities, if he has sufficient strength in his voice and power in his arm to control the workers in a factory in a way which the employer does not like, it may be well worth £4,000 to dismiss him, since such a sum may represent a few minutes' production time in a major works. So that must be carefully watched.
For the small employer, a shop keeper or someone with a few employees, £4,000 is a great deal of money. He will take care how he dismisses a worker, but, none the less, he will have to be prepared to justify that dismissal, if necessary, according to the rules laid down in the amended Clause. How will he do it? In practice, if he wishes to avoid the possibility of paying over £4,000, he will have to show that the dismissal related to the capability or qualifications of the employee, to the conduct of the employee, that the employee was redundant, or that he could not continue to work in the position without creating an illegality. In my 1243 opinion, it is likely that conduct will be the ground most relied on.
If an employer wishes to rely on conduct, he will now have to show not only that the reason was the conduct of the employee but, quite rightly, that he acted reasonably in the circumstances in treating that conduct, or misconduct, as a sufficient reason for dismissing the employee.
Let us assume that an employer has it in mind to dismiss an employee. He knows that, if he dismisses him unfairly, he will be liable to pay over £4,000. Incidentally, the personnel managers and others whose business it is to hire and fire may themselves lose their jobs if they dismiss too many people unfairly; and that in itself is quite fair. But how are they to handle this situation? If they wish to avoid paying over £4,000, they will have to show before a tribunal that the dismissal was fair. To show that it was fair they will have to prove that they reasonably relied upon the conduct. Nowadays there are many cases where an employer gives an employee who is a borderline case for summary dismissal his pay in lieu of notice and a reference, and the man leaves with something.
I fear that under the new amended Clause the employer will be tempted to dismiss a man summarily for various reasons. First, if he has to face an attempt by the employee to obtain compensation he will be able to show that he was dismissed because of his conduct, and it will be easier to show that he acted reasonably if he can point to a summary dismissal rather than a dismissal with notice or with pay or a reference. In other words, he will doubtless show the tribunal that he relied upon misconduct and acted in a manner which was consistent with serious misconduct, which is what I suspect the tribunals will expect an employer to show I hope that the Solicitor-General will say what sort of burden of proof in conduct cases he would expect the tribunal to accept in regard to substantial reasons, a substantial reason being more than a good reason, as he has put it. What is a substantial reason? Is a substantial reason in the case of conduct likely to be the same sort of reason as would nowadays amount to sufficient reason for summary dismissal—serious misconduct rather than ordinary, mild misconduct? There is that first, main risk.
1244 Second, an employee is always at a disadvantage when he is dismissed. This problem goes right up to the most senior employees. When a man is dismissed he needs the money which he could get if he were to settle his claim. Unlike the company, in general, he cannot do without the money which is being withheld. If the man is summarily dismissed, by definition he does not have the money he would otherwise receive if he were shown out of the door with his notice or his pay in lieu. Therefore, he is more likely to settle the case before it reaches the tribunal. At this stage we have the problem of the queue outside the tribunal created by this legislation. Clause 153 specifically forbids the contracting out of a man's rights under the Bill. It prevents a person from giving up his right to present a case to the tribunal. But the conciliation officers will have the job of trying to encourage people to settle cases before they reach the tribunal. Is it the Solicitor-General's view that it will be possible to settle a claim for compensation for unfair dismissal under Clause 22 as amended without the intervention of the conciliation officer, or will that amount to a contracting out? As I read the Bill, it will, which means that the hon. and learned Gentleman had better set about appointing many hundreds of conciliation officers. How many conciliation officers does he propose to appoint, and when?
A man who says that he has been unfairly dismissed and is entitled to compensation will take his place in the queue on the way to the tribunal. He will know that he is faced with delay. The extent of the delay will depend upon the number of tribunals and the speed at which they work. Will the hon. and learned Gentleman tell us how many tribunals it is proposed to appoint and when?
If the queue is as great as I expect it to be, those who are summarily dismissed, or those who are dismissed with notice but unfairly dismissed, will have a long wait and are then going to be prepared to settle their cases. They will be faced with summary dismissal and the burden of proving the allegation that the dismissal was fair will rest on the employer. But it will be a burden which the employee may fear will be discharged. The nature and the extent of 1245 the fear will depend to some extent on documentation which will come before the tribunal. When there is an attempt to dismiss a man, when it is known that a man is to be got rid of, it is simple to prepare the way for the dismissal. In general this is done, particularly in the case of those employed above shop floor level, by the preparation of documented complaints. I recollect that there is to be legal aid before the tribunals in connection with unfair dismissal cases, and I should be grateful if the hon. and learned Gentleman would confirm that.
Assuming that all these matters are overcome, we then have the unfortunate dismissed employee in a much less happy-position than a quick reading of this Clause might suggest. On the face of it, his position will be greatly improved; in practice I fear that there are subtleties within the Clause which may lead not only to difficulties for the tribunals and for those who have to state whether the tribunals have come to their decisions on a correct understanding of the law, but also difficulties for the employees themselves.
One of the grounds upon which it will be possible to show fair dismissal will be that the man was dismissed as redundant. In this case it would, of course, prevent a man from obtaining two sets of payment—a redundancy payment and a payment of compensation. One can dismiss a man unfairly if he is redundant but he will get his redundancy pay; conversely, the other method would apply. The danger here is that redundancy pay comes 50 per cent. out of the Exchequer and there will be a temptation to an employer where possible to make his payment 50 per cent. out of the redundancy fund. I trust that the Department of Employment will keep a careful eye on this sort of manoeuvre.
As in the case of redundancy payments, so in the case of compensation for unfair dismissal: a man will get neither until he has been employed for two years, and wherever the onus of proof is placed, this is a fact which no doubt will weigh heavily with employers. They know, and it is right for them to know, that it is for them to show reason for the dismissal; but equally they will know that this protection applies only for people who have been employed for two years or more. I should like to know why they should have 1246 to wait two years for the protection to apply. Is it not likely that before that time arrives, and in particular during the last two months of the two-year period, there is going to be a temptation to dismiss before risk of unfair dismissal arises under this Clause?
In many ways, this Clause will do a great deal of good but on the other hand we should bear in mind that there are dangers inherent in it, and it is a great pity that we should have to debate it at this late hour and at this stage in this enormously lengthy procedure.
§ Dame Irene Ward (Tynemouth)
I am glad that some changes are to be made to the Bill, for I wish it to be as fair as possible to both employers and employees and it is important that employers should have to justify dismissals. I like to be a straightforward individual and to give instances to demonstrate my argument. I spent the weekend in my own part of the world and while I was there some employees put to me an example of what they regarded as unfair dismissal. I assume that if these provisions had been law, the employers concerned would have had to justify those dismissals.
At this moment, I am firmly on the side of the employees in this matter and perhaps for once the Opposition will be inclined to support me on that account. [HON. MEMBERS: "Disgraceful!"] It is not at all disgraceful. I believe that I am being absolutely straightforward. I want employers to be fair when employees are dismissed.
On Tyneside there is the firm of C. A. Parsons which for some weeks has been persuading some of its employees, already members of one union, to join another, and it has been putting pressure on them to do so. This attempt to force trade unionists to join a union chosen by the employer has caused grave anxiety over the past few weeks. About seven days ago, the employers issued notices to the employees concerned saying that if they did not join the union of the employers' choice they would be dismissed, although those employees were fully paid up and responsible members of another trade union. If it were brought before a tribunal, this would be an interesting case because the employers would have to justify the dismissal of men 1247 who had committed no offence except that of wishing to remain members of the union to which they have belonged for many years.
Over the weekend, many of these workers came to see me, and I told them that if the opportunity arose—and I am glad that it has arisen—I would put on record, before the House of Commons, their objections to their employers' actions. If it is possible, under the Bill, for aggrieved trade unionists to complain to the tribunal about their employers' actions, nothing will give me greater pleasure, because in this case the employers are treating their employees extremely badly. I know that when the Bill is passed employers will be prevented from behaving in that way, but some employers are so clever in their support of the trade unions which they select—which are certainly not the trade unions which I would select—that they have issued notices to some of their employees before the Bill can be placed on the Statute Book.
I promised the trade unionists who approached me, as their Member of Parliament, that I would bring the action of their employers before the House. Those employers are dismissing men who have committed no offence other than to wish to remain members of the trade union which has faithfully served the industrial establishment over many years. C. A. Parsons want D.A.T.A. as their negotiating body and the professional engineers, who belong to U.K.A.P.E.—as they have every right to belong to U.K.A.P.E.—are objecting.
We have heavy unemployment on Tyneside, but these employers are throwing these men out of work and adding to the unemployment—simply because the employers want to choose the trade union and not to allow their long-serving workers to remain attached to their own union. I hope that the Solicitor-General will assure me that there is no justification for employers to behave in this way. I take great exception to their action and I stand up for the trade unionists who are members of U.K.A.P.E.
§ 11.45 p.m.
§ Mrs. Neil McBride (Swansea, East)
As the hon. Member for Tynemouth (Dame Irene Ward) has said, the question of unfair dismissal, if proved, is a very 1248 serious thing. Even if damages are awarded there is the question of reinstatement. It may be that a craftsman likes to follow his trade at a particular factory, or likes a certain firm because it is near his home or for some other good reason. The Government should tackle the important question of who has responsibility for this. There should be a provision for reinstatement in the event of unfair dismissal.
Dismissal depends on whether an employer in the circumstances, in the words of the Amendment, acted "reasonably or unreasonably" in dismissing an employee. This gives an employer great scope and will result in many and varied legal interpretations of these words.
Unfair dismissal can be the most disruptive thing in industrial relations and here I have an advantage over the Solicitor-General because I spent 25 years in the great shipyard we were discussing earlier in the debate about U.C.S. It is not the ostensible reason for dismissal that can cause the trouble, it is the nagging pin-pricks than can lead to the dismissal.
The fact that insufficient time has been allocated to this Bill means that it is a hotch-potch. Anyone who has worked in industry knows that and, speaking as a former shop steward—a much maligned race—may I remind the Solicitor-General that while industry marches on its generals it can never carry out its work without the "non-coms". I wonder whether the hon. and learned Gentleman has thought about the legal costs which will be added to industry's bill as a result of this Measure. Summary dismissal will become the order of the day, the new method of evading the provisions of the Clause. Paving the way for unfair dismissal in this way is most important. I speak as a non-lawyer, but in this House I have heard lawyers interpret Clauses in a Bill and in no case have their opinions been coincidental. This will rupture and bedevil, rather than help, industrial relations.
One must understand the position before one can help to create good industrial relations, and, as one who has lived and worked with workpeople, I assure the Minister that the Amendment, lacking a provision for reinstatement in the way I have described, and the Bill, lacking a sense of humanity, shows that 1249 the Government are singularly devoid of the understanding that is necessary to deal with the whole issue of industrial relations.
§ The Solicitor-General
The hon. Member for Swansea, East (Mr. McBride) made an important contribution to the debate when he emphasised the wide importance of this provision. I was disappointed that he closed by concentrating on a critical note, suggesting that in the absence of a provision for reinstatement, this part of the Measure was of no value.
§ Mr. McBride
I did not use the words "of no value", though I may have an opinion about that. I thought it logical that a provision for reinstatement should be included.
§ The question whether reinstatement should be in the Bill has been debated extensively both in this House and in another place. [HON. MEMBERS: "No."] It has been canvassed in one speech after another at various stages of the Bill.
§ Mr. Rose rose—
§ The Solicitor-General
The hon. Member for Manchester, Blackley (Mr. Rose) will remember that it was last canvassed on 16th March in debating several Amendments. I have the OFFICIAL REPORT with me.
§ Mr. Heffer
I want it clearly on the record that this whole question of unfair dismissals was never debated in this House. It may be true to say that hon. Members obliquely referred to it and tried to discuss it when speaking to other Amendments, but the guillotine prevented us from debating the matter in depth.
§ The Solicitor-General
I agree that we did not reach this set of Clauses in our discussion in the House—[Interruption.]—but the House must acknowledge that the amount of repetitious discussion of 1250 earlier Clauses was the large factor in our lack of progress towards these Clauses. There would have been ample time for us to have discussed these and many other Clauses in the time available, and it is significant that the Bill was discussed from end to end twice in another place, where these Clauses were examined.
Notwithstanding that, the issues with which we are now dealing, reinstatement or not, have been raised many times in our debates. [HON. MEMBERS: "No."] They were raised on Second Reading and in the debate on the Consultative Document. Anyone who has paid a moment's notice to our debates, if they have noticed anything, will have noticed the argument about reinstatement.
In this Bill provision is made for increasing awards of compensation under Clause 102(4) if a recommendation for reinstatement is made and disregarded. Although under the Bill introduced by the Labour Government there were provisions for reinstatement to be ordered, if those orders were not complied with, the only remedy was an increase of compensation by a scale not exceeding 50 per cent. of the total compensation otherwise awardable.
§ Mrs. Castle
The hon. and learned Gentleman must realise how unfair he is being, trying to exonerate the Government on the reinstatement issue on the basis of a narrow Amendment rather than in the context of the Bill, when it is out of order for us to widen the discussion, apart from the fact that it is five minutes to midnight. I challenge his easy generalisations about the similarity between the two Measures and deeply regret that we did not have a chance to examine that part of his Bill dealing with reinstatement.
§ The Solicitor-General
I decline to accept the matter in that form. Time after time after time in this House we have drawn the attention of hon. Members to the fact that the provisions for reinstatement in the right hon. Lady's Bill did not and could not go as far as securing reinstatement. Of course, the Bill had not—
§ Mrs. Castle
On a point of order. As the Solicitor-General is now giving the text of an entirely different Clause which has nothing to do with the Amendment 1251 under discussion, shall we have an opporunity tomorrow to discuss the reinstatement Clauses which are not now before us and which were not discussed in Committee?
§ Mr. Speaker
The right hon. Lady has asked me a hypothetical question. I shall have to see how the discussion goes.
§ The Solicitor-General
If the right hon. Lady does not wish me to continue the comparison on the point raised by the hon. Member for Swansea, East I will not do so. The point has been included on the record many times.
I will pass, instead, to the point made by the hon. Member for Swansea, East of the importance of these recommendations. Exactly the same point was made by the hon. and learned Member for Leicester, North-West (Mr. Greville Janner) in an extremely thoughtful speech. This was the first occasion on which tribute has been paid and acknowledgement given to the Government for the great importance they attach to the unfair dismissal provisions in the Bill. The hon. and learned Member said—and this was echoed by the hon. Member for Swansea, East—that the provisions relating to unfair dismissal were likely to be, as my right hon. Friend has stated many times, one of the most important sections of the Bill, dealing with the position of individual workers. It is encouraging to have this on the record.
§ Mr. McBride
The right hon and learned Gentleman is perhaps inadvertently, misleading the House. I was referring to the terms "reasonable" or "unreasonable", which is a different matter.
§ The Solicitor-General
I will come to discuss "reasonable" or "unreasonable" in a moment, pointing out that the formulation by reference to reasonableness and unreasonableness follows closely the words used in the right hon. Member's Bill. I am making no partisan point 1252 about that, because it is impossible to deal with unfairness or fairness of dismissal save by using such words as "reasonable" or "unreasonable". It is important that we should be satisfied that they are the best words for the purpose.
My hon. Friend the Member for Tyne-mouth (Dame Irene Ward) raised, with characteristic skill, an important question from the point of view of her constituents about the effect of the Bill on the C. A. Parsons case. It would not be right for me to pronounce on the merits of a particular dispute, nor to say in general terms what is the justification or non-justification for the action she was discussing, but I can answer her question about the effect of the Bill on the situation she described.
The Bill cannot affect the matters she discussed if any action takes place before the Bill comes into force. Once the Bill is in force, if an employer is threatening with dismissal an employee upon the grounds that he will not join the union of the employer's dictation, the employer would be dealing with the employee unfairly and would be open to action for unfair dismissal.
The only exceptions to that situation are these. If the employer were dealing with a situation where an approved closed shop agreement had been established under the elaborate provisions of Schedule 1, it would not be unfair. The second exception is if there were an agency shop agreement the employer would not be entitled to dismiss the employee for belonging to a union of his choice, but would be entitled to do so if the employee was not paying agency shop contributions to an established agency. If it had been decided that the approved agency shop union was D.A.T.A., for example—
§ It being Twelve o'clock, the debate stood adjourned, pursuant to the Orders [25th January and 28th July].
§ Debate to be resumed this day.