Mr. Lloyd: Will my hon. Friend concentrate on the case that I referred to him earlier-Bentley Engineering Co. Ltd. v. Mistry. The matter was investigated and statements were taken from witnesses, but the tribunal held that the dismissal was unfair because Mr. Mistry was not given adequate opportunity to know the witnesses' case against him or to cross-examine the witnesses. That is important. I accept what my hon. Friend said about the provision being not intended to catch such cases, but that may be its consequence. The employer would have the defence of saying that, having investigated the matter and carried out the procedures adequately, it drew the conclusion that Mr. Mistry had instigated the fight, so it would still have dismissed him even if Mr. Mistry had cross-examined the witnesses. The employer would be entitled to insist that that was the case and, under case law, would not have to prove that he was right in that, merely that he believed that to be the case. The employer believed that Mr. Mistry was the instigator of the fight and, having investigated the matter, dismissed him. However, the tribunal found that because Mr. Mistry did not have the opportunity properly to cross-examine, his rights under natural justice had been violated. The important point is that, although both parties have the right to put their case, nothing in schedule 2 procedures provides the right to cross-examine. That might seem like a narrow technical point, but it is fundamental to obtaining truth and, ultimately, justice. Perhaps Mr. Mistry would have been dismissed had proper cross-examination taken place, but because it did not, we will never know whether the case against him was well founded.
Alan Johnson: This is a crucial point. None of us can be absolutely sure how the examples to which my hon. Friend referred would have concluded in the new scenario, but the Government believe that dismissal would probably still have proven unfair. My hon. Friend mentioned the link with fairness, and gave examples of an investigation not being carried out and a meeting being conducted improperly. In keeping with the Polkey principle, an employer might say that such factors made no difference to his decision, but he would still have to prove that the decision was fair and reasonable in the light of the remaining protections for applicants.
These points are of fundamental importance. If concerns remain that the clause is unclear, we are happy to consider spelling it out that partial restoration of the no-difference test will not excuse employers from acting reasonably in other respects. We are prepared to accept amendment No. 78, which similarly points out that, where a procedure has not been followed, a no-difference line of defence does not of itself guarantee that an employer acted reasonably. In other words, an employer must have acted reasonably in all other respects, and if he did not, a dismissal will still be unfair. According to parliamentary counsel, the amendment achieves the desired effect, and on that basis, we will accept it.
Amendment No. 27 would not have the required effect, although I understand the underlying concerns. It would introduce the concept that
but the concept remains undefined. That would create uncertainty for tribunals, and risk their developing a test of fairness for proposed new section 98A that would be different from that otherwise applied in unfair dismissal cases. That is undesirable.
My hon. Friend the Member for Wolverhampton, South-West asked about the right to a fair hearing. Schedule 2 grants the right to a meeting-in other words, a hearing-but no more than that. However, unless dismissal without a fair hearing made no difference, it would be likely to be found unfair. My hon. Friend also asked about reviewing the clause to establish whether it had the desired effect. I can assure hon. Members that, over time, we will look closely at the practical effects of the change. During consultation, many employer groups told us that current law is a disincentive to putting in place more detailed procedures, and we shall want to establish whether the change has altered their practices.
My hon. Friend the Member for Manchester, Central rightly referred to employment law anoraks-indeed, some of us are well on the way to becoming cagoules. In any event, it is likely that all his examples would have constituted unfair dismissals, but I shall give the further example of the employer who dismisses a number of employees for racially harassing their colleagues. He loses the case solely because of a procedural error, even though the tribunal acknowledges that it made no difference to the outcome and awarded no compensation to the employees-
It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Four o'clock.
The following Members attended the Committee:
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