ORDER FOR REINSTATEMENT OR RE-ENGAGEMENT (Hansard, 5 August 1975)

§ Mr. Brittan
I beg to move Amendment No. 139, in page 52, line 7, leave out from beginning to 'shall' in line 10 and insert— '(1) At the commencement of the hearing of any complaint under paragraph 17 of 335 Schedule 1 of the 1974 Act (unfair dismissal) the industrial tribunal hearing the complaint'. This amendment relates to the hearing of a complaint for unfair dismissal. Frankly, in view of the number of points on which the Government have felt able to meet us during the conduct of the Committee, I find it mildly surprising that this uncontroversial amendment should still stand on the Order Paper in the name of my right hon. Friend and ourselves, rather than be adopted as a Government one. All it seeks to do is to prevent a hearing of a complaint for unfair dismissal being in two separate sections, rather than in a single unit, which we should have thought preferable.
Under the Bill as it stands, without this amendment the industrial tribunal has to hear the complaint of unfair dismissal, and then, after it is found that there are grounds for the complaint, it has to explain to the complainant what is the position in regard to the possibility of orders for reinstatement or re-engagement. It then has to ask him if he wants the tribunal to make any such order, and then the tribunal has to decide whether to make such an order.
The reason that a two-stage hearing is involved is that in considering whether it is appropriate under the Bill or under the statute, as it will have become, to order reinstatement or re-engagement, a great many issues of fact may have to be considered which could and should have been much more conveniently considered when the substantial claim for wrongful dismissal has been heard.
There seems no purpose in covering the same ground again. This is an unnecessarily cumbersome way of proceeding, especially as the form which the complainant must fill in long before the hearing specifies the details of his complaint. We suggest that instead of requiring the tribunal to give the explanation of reinstatement and re-engagement after the determination of the basic claim, and then to ask the employee whether he wishes to avail himself of these remedies, the tribunal should at the commencement of the hearing explain the orders and ask the employee what he wants. It is important that the matter shoud be made clear at the outset, rather than that the tribunal should be required to take two bites of the cherry.

§ Mr. Booth
The object of the Clause 63(1) procedure is to ensure that the successful complainant understands what remedies the tribunal can provide and has an opportunity to tell the tribunal whether he has changed his mind about his preferred remedy. That object would not be fully achieved by Amendment No. 139.
When we discussed the matter in Committee we indicated that we were already planning to arrange for additional questions to be included in the form of application to the tribunal so that employees would have an opportunity to say what remedy they wanted when they first complained. Moreover, given that officers of ACAS will try to help the employer and employee to settle the complaint by agreement, both parties will normally have a pretty clear idea of the complainant's preferred remedy by the time the case reaches a tribunal hearing.
There are two main reasons why I urge the House to reject the amendment and retain the provisions of Clause 63(1). first, the employee needs to understand exactly what is involved in tribunal orders for reinstatement, at the point when the final notice is being made, or re-engagement, at the point where the final choice is made. The fact that he has previously opted for reinstatement rather than compensation on his application form will not necessarily mean that he undertands what considerations the tribunal must take into account in deciding whether to make an order for reinstatement or re-engagement.
Secondly, the tribunal needs to know whether the employee has changed his mind after he has submitted his application form, or at the conciliation stage. There are many reasons why he might do so—the offer of a better job with another employer, or subjective factors such as a changed attitude due to his employer's refusal to consider the conciliated settlement.
The tribunal therefore must check up on what the employee wants as a remedy at that point in the hearing. In practice, as the hon. Member for Cleveland and Whitby (Mr. Brittan) knows, having studied the matter, we have up to now had only limited experience of successful reinstatement or re-engagement. We are hoping that as a result of this legislation 337 many more people may be successful in obtaining reinstatement or re-engagement after unfair dismissal. However, I believe that we have the best possible chance of that being successful in every sense to the employee and employer most concerned if the options are fully understood and kept open until the last moment of the tribunal's decision.

§ Mr. Brittan
The objections and worries of the Minister are unrelated to the amendment and to the arguments I put forward in support of it. The Minister—not I—spoke about the form, which will be amended, to require the applicant to state what he wants. I do not ask that the applicant should be bound by any form submitted long in advance.
The amendment suggests that at the outset of the hearing the matter should be explained to the employee. That will not tie him down long in advance without any understanding. It will give the tribunal an opportunity to do exactly what it must do, under the clause, in any event. But at a later stage in the hearing the tribunal must explain to the complainant the remedies and the factors which will determine whether it will award those remedies.
There is no question of the man not being allowed to change his mind between making the original complaint and coming to the tribunal. He is asked to state at the beginning of the tribunal hearing what remedy he wants. I can think of no form of hearing at which that procedure would be regarded as objectionable or at which it is thought appropriate that the person concerned should be asked what he wants only at the end of the tribunal's proceedings. It is a sufficient concession to the general ignorance which may be thought to exist on this matter that the tribunal is required under the statute to take the unusual step of explaining everything. That having been done, I cannot see why it is not possible to give the explanation and to invite the choice to be made at the beginning of the hearing.
I do not find the explanation given by the Minister convincing. I hope that he will think about this again. He may not have had enough time since the Committee rose to reconsider the matter, but he has other opportunities to do so. I hope that he will make the change, which 338 is not controversial. It is a matter of convenience. I cannot help thinking that the Minister is unduly suspicious of the motives of those proposing this amendment.

§ Mr. Booth
I mentioned the procedure which is to occur before the tribunal hearing, and the question of the form, in support of the proposition that applicants need to know the remedies well in advance of the tribunal hearing. I do not think that there is any dispute between us. Given that the person concerned knows the remedies in advance, the requirement of the amendment, that there should be an explanation at the start of the hearing, is superfluous.
I urge upon the House that there are two points at which there needs to be knowledge on the part of one or more parties of the options of reinstatement or re-engagement. One occurs prior to the start and one occurs at the later stage when the final determination has to be made.

§ Mr. Booth
I beg to move Amendment No. 140, in page 54, line 6, after 'shows' insert '— (a)'. The effect of this amendment and Amendment No. 141 is to free employers from the requirement imposed by the present provisions of Clause 63(8) to arrange for a dismissed employee's work to be done without recruiting a permanent replacement—except where this is impracticable—if the dismissed employee fails to inform the employer that he wants to be reinstated or re-engaged within a reasonable period after he has received notice of dismissal or after the dismissal notice has taken effect.
I gave an undertaking to consider the matter further on representations being made in Committee. I hope that it will be considered that we have met the point. We accept that if an employer's decision to take somebody else on in place of an employee whom he has dismissed is to be considered properly—if the dismissal was found to be unfair and reinstatement is claimed—at least the employer should have a right to be informed within a reasonable time that the employee he has dismissed will seek reinstatement or re-engagement at a tribunal. Provided 339 that is done the point raised in Committee will be met, and the rights of the respective parties will be properly covered by the Bill.