BASIC AWARD (Hansard, 23 April 1980)

§ Mr. Mayhew
I beg to move amendment No. 10, in page 10, line 3, leave out from " that " to " such " in line 6 and insert any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given), other than conduct taken into account by virtue of subsection (7), was ".

Mr. Deputy Speaker
With this we may take the following amendments:
No. 66, in page 10, line 4, leave out " whether ",
No. 67, in page 10, line 4, leave out " or after ".

§ Mr. Mayhew
The effect of this amendment is to limit the scope of clause 8(4) so that it deals only with situations where the basic award may be reduced because of the employee's misconduct before the dismissal but only discovered subsequently.
This amendment arises as a result of our acceptance in principle in Committee of the Opposition's amendment No. 108, which sought to exclude conduct after the dismissal as an element that could be taken into account by the tribunal in considering whether to reduce the basic award of compensation for unfair dismissal.
It seemed to be quite wrong that it should be open to a tribunal to take adverse account of conduct by the complainant which took place after his dismissal. That would be basically unjust and we acknowledged that the clause as drafted could give rise to that result. We believe that this amendment overcomes that, and meets the point that was raised in the House of Lords in the case of Devis v Atkins. Although the remaining amendments, Nos. 66 and 67, are not Government amendments, they would be superseded by this amendment if it were accepted by the House.

§ Mr. Harold Walker
I have had few opportunities during the 100-odd hours that we have debated this Bill to express any gratitude to the Government. I cannot allow this opportunity to pass. I am not sure that the complicated amendment 662 standing in the name of the Secretary of State meets entirely the point that the Opposition made. If it does, or is intended to do so, I cannot see why the Government were unable to accept the amendments that we tabled.
None the less, I am prepared to accept the assurance of the Under-Secretary of State. I believe that the hon. and learned Gentleman is not only an honourable man in House of Commons terms but an honourable man in the real sense of the term. I am prepared to accept his assurance and to express, for once, a little gratitude to the Government.

§ Mr. Harold Walker
I beg to move amendment No. 68, in page 10, line 9, at end insert ' and where the tribunal considers that the employer's conduct, whether before or after the dismissal, has been such that it would be just and equitable to increase the amount of the basic award to any extent, the tribunal shall increase the amount accordingly '. I was puzzled by some comments of the Under-Secretary of State in reply to an amendment proposed by the Opposition yesterday. His remarks have conditioned what I might have otherwise said about this amendment and its effect on the clause. Clause 9 (1) begins: If in proceedings before an industrial tribunal on a complaint against an employer under section 67 the employer claims "—— A number of things ensue, it seems, merely from the claim of the employer. If the Opposition's understanding of that is correct, it is extraordinary that a number of matters should ensue against individuals merely on the unproven claim of the employer. Even though we disagree with the substance of the clause and all that ensues, we argue that the employer should at least be required to prove rather than merely claim.
Perhaps, in the light of his comments yesterday, the hon. and learned Gentleman can convince me that the requirement to prove is not necessary. On the face of things, I am bound to say that we feel that he should be required to prove conclusively what he is claiming before the consequences ensue.

§ Mr. Mayhew
I suspect that the right hon. Gentleman has not addressed himself to the right amendment. I think that the happy accord, established on 663 the last amendment, has been carried forward to this. I know exactly what the right hon. Gentleman wanted to say. I can perhaps say it for him. What the right hon. Gentleman would have said—I am happy, in my professional capacity, to speak on his behalf—is that it is desirable, where the tribunal considers that the employer's conduct, whether before or after the dismissal, has been such that it would be just and equitable to increase the amount of the basic award to any extent, that the tribunal shall increase the amount accordingly.
The right hon. Gentleman wants to make the employer pay a larger sum, by way of a basic award, where the tribunal believes that the employer's conduct, leading to the dismissal, warrants it. The right hon. Gentleman, I think, is saying that this is a quid pro quo and that what is sauce for the goose should be sauce for the gander because we say that the basic award can be reduced to zero and that there shall not be a minimum basic award of two weeks, no matter how much the complainant's—the employee's—conduct has contributed to the dismissal. That probably states fairly what the right hon. Member for Doncaster would have said.

§ Mr. Harold Walker
I am grateful to the hon. and learned Member.

§ Mr. Mayhew
Having expressed what the right hon. Gentleman would have said, I must add that it is misconceived. There is no analogy. The employee complains that he has been dismissed and his basic award is reduced because of his conduct. That of which he complains he has brought about. The statute provides a scale of compensation for unfair dismissal. It does not provide, and never has provided, for graded scales of compensation according to a moral assessment of the employer. The analogy in the right hon Gentleman's mind does not exist, although I can understand why he might think that it does. I urge my right hon. and hon. Friends to resist the amendment.

§ Mr. Harold Walker
I am deeply grateful for the hon. and learned Gentleman's quid pro quo. I had put a line through amendment No. 68 but I had not remembered to tell you, Mr. Deputy Speaker, or the Minister so that he could follow my example and move on to amendments Nos. 72 and 73. I ask the 664 hon. and learned Gentleman to bear my remarks in mind when we come to those amendments when his reply may be more relevant to my arguments. I am prepared to accept what he says about the geese and the golden eggs and the quid pro quo. I am happy to leave the matter there.

Mr. Deputy Speaker
I must put the Question, unless the right hon. Gentleman wishes to withdraw the amendment.

§ Mr. Harold Walker
I beg to ask leave to withdraw the amendment.

§ Mr. Harrison
No.