HC Deb 03 August 1971 vol 822 cc1338-44

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—

  1. (a) what was the reason (or, if there was more than one, the principal reason) for dismissal, and
  2. (b) that it was a reason falling within the next following subsection, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.
(1A) In subsection (1)(b) of this section the reference to a reason falling within this subsection is a reference to a reason which'.

Order read for resuming adjourned debate on Question proposed [2nd August] on consideration of the Lords Amendments, That this House doth agree with the Lords in the said Amendment.

Question again proposed.

3.42 p.m.

The Solicitor-General (Sir Geoffrey Howe)

When the House rose last night, I was replying to the debate on this Amendment and had not sought the leave of the House to make that reply. Therefore, with the permission of the House, perhaps I may now continue my reply to the debate.

I had almost finished answering the point raised by my hon. Friend the Member for Tynemouth (Dame Irene Ward) and I had explained that, under the Bill, an employer will not be able, by dismissal, to do anything to compel membership of a union of his choice or of the union's choice except under the conditions laid down, where the approved closed shop has been established on the conditions specified in Schedule 1, or where an agency shop has been established and then only if the worker refuses to contribute to the agency union.

This means that, if a particular union has persuaded the Commission on Industrial Relations to approve a unit as one which it should seek to represent, and if that union has secured the support of the workers in the union, so that an agency shop has been established, then a non-member of the successful union can be required to contribute to the agency union, but cannot—this answers the point of the right hon. Member for Blackburn (Mrs. Castle)—be required to belong to that union and remains free to remain a member of the union of his own choice.

I welcome the recognition of the hon. and learned Member for Leicester, North-West (Mr. Greville Janner) of the importance of these provisions. He discussed a number of difficulties inherent in any unfair dismissal scheme—difficulties which were considered by both the present Government and our predecessors, difficulties which, if they exist, are common to both schemes, which are on similar lines, and which I am sure the House would feel should not stand in the way of the introduction of these proposals.

The hon. and learned Gentleman suggested that it was regrettable that it was only after a two-year qualifying period that a worker should be entitled to take advantage of the unfair dismissal provisions, but that is the preliminary stage. The qualifying period may be shortened hereafter, once the size of the case load has been ascertained. There was a similar provision in the Bill introduced by the right hon. Lady at the end of the last Parliament.

The hon. and learned Gentleman mentioned the possibility that dismissals might take place just before the expiry of the two-year period in order to escape the provisions of the Bill. If that is so—it should not be assumed that it is—it is in line with the provisions already operating under the redundancy payments scheme, and there is no evidence that it has been taken advantage of in that way.

The hon. and learned Member also suggested that documented cases to justify unfair dismissal might prove cumbersome before the industrial tribunals, and implied that this might be encouraged by the availability of legal aid. But, as he will remember—I think that he raised the point in an earlier debate—legal aid would be available not before the industrial tribunals, under this or under the previous Bill, but before the Industrial Relations Court.

In fact, of course, if an employer, in order to justify a dismissal, has to produce a documented statement setting out what he is complaining of and why he is seeking to dismiss an employee, that is, on the whole, regarded in industry as to the good, because it means that he cannot merely launch bland assertions with which to justify his dismissal.

The hon. and learned Gentleman also suggested that a settlement as a result of conciliation of an unfair dismissal claim was not admissible under Clause 153. That point is fair in relation to the Bill as it left this House in March, but has been taken into account by the provisions of Lords Amendment No. 259.

Going back to some extent over old ground, the hon. and learned Member also argued that it would be possible for an employer to get away with the dismissal of a troublemaker and to buy him off for a maximum of £4,000. But of course, that is a great deal better than the present position, under which the "troublemaker" unfairly dismissed has no claim to compensation or benefit at all. In other words, the scales are now tilted against the employer even in this situation.

Mr. Greville Janner (Leicester, North-west)

Is the position now to be that a settlement will be permitted only if it has the blessing of the conciliation officer concerned, or will the settlements, in the hon. and learned Gentleman's view, be permitted where there is no such blessing? My understanding of this is that, even as the provision is amended, the conciliation officer will have to approve of any settlement.

The Solicitor-General

I think that the conciliation officer will have to have been brought into it in the sense that he will have had to be notified. It is the object of the scheme that any claim of this kind should be notified to the conciliation officer. There were similar provisions in the last Government's Bill relating to the notification of a conciliation officer. Everyone is anxious to see that claims of this kind particularly should be resolved by conciliation rather than by litigation if at all possible.

The last point that the hon. Gentleman raised relates to the first point raised by the hon. Member for Manchester, Black-ley (Mr. Rose), about the extent to which it is possible that an employer might be tempted to dismiss summarily in order to show that he was dismissing on good and substantial grounds, and thereby avoid the softer option of dismissal on notice.

One cannot dispute that, under this scheme or under the arrangements contained in the last Government's Bill, that would be a theoretical possibility. The essence of the protection provided for the worker there, as in every other dismissal situation from now on, is that he would be able to challenge such a summary dismissal and secure a remedy from the industrial tribunal.

The effectiveness of that remedy depends, of course, upon the extent to which he can establish his claim before the tribunal. That is where we come to the point which is common to both hon. Members—about the adequacy of the provisions in relation to the reasonableness or unreasonableness of the dismissal. The hon. Member for Blackley, I think, suggested that the provision of Lords Amendment No. 48 required the employer only to establish the fact or existence of a reason and did not give the tribunal notice of the extent to which the sufficiency of the reason had also to be considered. In fact, one must look at Amendment No. 48 with Amendment No. 50. The employer has to show what was the reason and that it was one of the listed reasons; and then, under Amendment No. 50, once the existence of the reason has been established, the tribunal still has to consider whether in the circumstances he "— the employer— acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. That is intended to meet the same point as was met by Clause 35(3) of the Labour Government's Bill, save for the fact that in that case the dismissal was not held to be unfair unless the tribunal was satisfied that the employer acted unreasonably in dismissing the employee. Under those provisions unreasonableness rested with the employee to establish, whereas under Amendment No. 50 the burden of proof is left open, so that, if anything, it is easier for the dismissed worker to establish that the employer acted unreasonably in dismissing him.

We cannot go as far as the hon. Member for Manchester, Blackley would wish in maintaining the presumption of redundancy in the case of a mixed claim—a claim on the ground of redundancy and/or unfairness of dismissal; and Amendment No. 326, which requires the tribunal to decide one way or the other without the existence of a presumption, is in line almost exactly with Clause 50(3) of the Labour Government's Bill.

Mr. Paul B. Rose (Manchester, Blackley)

I think the hon. and learned Gentleman has misunderstood me. I asked him whether he would apply the principle that applies to redundancy payments to the case of unfair dismissal, and thereby create a rebuttable presumption.

The Solicitor-General

I appreciate the distinction which the hon. Gentleman has in mind, and that is the object of the clarification of the burden of the proof that we have undertaken. Once an employee goes before the tribunal and shows that he has been dismissed, it is then for the employer to show the existence of a reason under Amendment No. 48. This puts the employee beyond first base without having the additional complication which was in Clause 35(1) of the Labour Government's Bill.

The next point raised by the hon. Member for Blackley was whether "reasonableness" would be assessed fairly and by objective standards relative to the employee and the job he was doing. I refer the hon. Gentleman to the provisions in Amendment No. 48(1)(b). If the employer is relying on a substantial reason outside those listed in the Clause as it stands, then that must be a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held". In other words, rather than being assessed subjectively, the matter must be related to the work that he was doing and considered objectively. In addition, Amendment No. 50 leaves the burden of proof open rather than placing it on the employee in showing whether it was reasonable or unreasonable.

The hon. Gentleman then suggested that a wide area of discretion will exist here. If one looks at Clause 22(1)(a) of the Bill and then at Clause 22(b), one has the position set out. In the first instance, one of the admissible reasons for dismissal may be related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do. Subsection (6) defines "capability". The hon. Member for Blackley expressed anxiety lest that might be regarded as too wide. I answer him in a not very aggressive spirit, and I hope in a modestly defensive one, by saying that those two provisions are taken verbatim from Clause 35(2)(a) and Clause 35(5) of the Labour Government's Bill.

Mr. Rose

Is the hon. and learned Gentleman aware that that Measure was a Bill in draft, had not passed through its Committee and Report stages in this House, had not been through the House of Lords, had not returned to this place and, therefore, had not had the benefit of being amended? Will he please answer the point and not keep fobbing me off with reference to an earlier Bill which did not have the benefit of a thorough consideration by Parliament, with the possibility of being improved?

The Solicitor-General

Dear, oh dear! I am sorry that the hon. Gentleman is so sensitive about this. In the spring of 1969 that Bill was in prospect from the then Labour Government.

Mr. Rose

But only in prospect.

The Solicitor-General

In June 1969, the prospect of that Bill was brought to an end and, thereafter, one assumed that for the next 10 months the Labour Government gave the closest consideration to a Bill which they would introduce, which they did, before the General Election. Indeed, the hon. Member for Liverpool, Walton (Mr. Heffer) in earlier debates when attempting to repudiate my arguments on this topic, in which I had referred to "In Place of Strife", described that Measure as one which had had the support of the entire Labour Movement.

I dare say that the Bill was capable of improvement and that it would have been subjected to a mass of amendments both in this House and another place. I am, nevertheless, entitled to make the point that these provisions are in line with the fruits of the deliberations, lasting almost 12 months, of the Labour Government, leading to the publication of these proposals in their Bill.

However, that is not the only defence I offer. The proposals themselves are sensible and acceptable. The employer must show that he is relying on the ground that the dismissal can be justified because it can be related to the capability or qualifications of the employee for performing work of the kind which he was employed … to do and "capability" is defined in Clause 22(6)(a)

Of course, the working of these provisions as with the working of any provisions providing a remedy for unfair dismissal, will depend on the objectivity with which the tribunal applies the test of reasonableness as contained in the Bill, as it was contained in the Labour Measure.

I suggest that these provisions are entirely workable, are entirely fair and that the obligations in respect of the burden of proof in this matter are now clearly set out in response to the wishes expressed in another place and in this House by way of the group of Amendments now under consideration.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Forward to