Mr. Hammond: Can the Minister explain why he is about to invite us to vote that the clause stand part of the Bill when he has just said that it is flawed, understood to be such by the Government and requires amending, although he has failed to table the necessary amendments? That is a serious abuse of the Committee's procedures. We cannot possibly vote that a clause stand part if the Minister says that it is flawed.
Alan Johnson: I have served on many Committees in which similar things have happened, including Committees on Finance Bills with the hon. Gentleman. If, during the proper scrutiny of a Bill, a member of the Committee spots a technical error, it is perfectly reasonable for the Minister to say that it will be amended at the first available opportunity and to ask the Committee to agree that the clause stand part on that basis. The wording of the amendment is faulty because it does not apply consistently to clause 31, and we shall ensure that our amendment does so.
Norman Lamb (North Norfolk): I want to press the Minister a little further on his response to my hon. Friend the Member for Weston-super-Mare. We are pleased that he recognises that the clause needs further amendment, and appreciate that it is sensible to ensure that that has the desired effect. However, will he say more about when the modified procedure will apply? That procedure entails dismissal without any hearing at all, and only the right of appeal following dismissal. During the sitting on Thursday 13 December, the Minister said that it would apply only in extreme cases of gross misconduct.
I find it hard to imagine in what circumstances it would be appropriate to dismiss someone without any hearing, and with only the right of appeal following dismissal. In cases of violent misconduct, for example, the right way to deal with the situation immediately is to suspend the employee, not to dismiss them without the right of a hearing. There may be all sorts of reasons, such as provocation, that need to be investigated to determine whether dismissal is the right sanction. Will the Minister clarify the hopefully limited circumstances in which it would be appropriate to dismiss someone with no hearing?
Alan Johnson: We touched on this when we debated schedule 2 and its relevant clauses. For the absence of doubt, under the two-step disciplinary procedure for gross misconduct an employer may legally be entitled summarily to dismiss an employee without notice if his or her misconduct has been so serious as to amount to a fundamental breach of contract. That is often described as gross misconduct. The law does not specify what conduct justifies summary dismissal, and it is for the courts and tribunals to decide in the light of all the circumstances whether it is justified in a
Column Number: 220particular case. We envisage that the modified dismissal and disciplinary procedure will apply in such special cases. That requires employers only to write to the employee after dismissal, but gives the employee an opportunity to appeal the decision.
Norman Lamb: Is the Minister saying that in all cases of gross misconduct it will be fair to dismiss without a hearing, allowing the employee only the right to an appeal?
Alan Johnson: In my experience, if someone in the Post Office was watched for a period of time and was accused of stealing letters or interfering with the mail, that would be classed as gross misconduct, as would severe violence against an employer. There is no disagreement about that and there is nothing new about the procedures. We have already debated and agreed the fact that there needs to be a modified procedure for discipline in such cases, and that in cases involving grievance procedures, where an individual has already left the employment for various reasons, it would be illogical to ask them to go back and reform a bond with the employer, which has already been broken, to go through the third step.
Norman Lamb: Does the Minister agree, especially in the light of his experience with the Post Office, that in many cases of alleged gross misconduct the facts are complex and that it is essential in the interests of natural justice to have a hearing before reaching a decision to dismiss? If he is saying that the modified procedure will apply in all cases of gross misconduct, then in all those complex cases where the facts need to be canvassed at a proper hearing, the employee will have no right to such a hearing.
Alan Johnson: We are talking about workplaces where there is no procedure whatsoever and where a procedure is being applied for the first time. We accept the need for a different approach to cases of gross misconduct. We have already debated that at some length. Under the modified discipline procedures in schedule 2, the employer must set out in writing the employee's alleged misconduct that has led to the dismissal and the employee's right to appeal against dismissal, and send a copy of the statement to the employee. The employee must inform the employer of his or her wish to appeal and the employer must invite him or her to attend a meeting.
What is missing is a provision relating to the case having to be properly investigated. This morningwhen the hon. Gentleman was not herewe discussed the case of an employee who had been dismissed for theft in the context of the lack of an investigatory clause in the basic two and three-step procedures. I explained that if the employer had not taken reasonable steps to investigate the allegations made against the employee, the employment tribunal would be unlikely to agree that the dismissal was fair. That plays a part in the case having to be reasonable in all other respects.
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Rob Marris (Wolverhampton, South-West): Does my hon. Friend agree that some cases of gross misconduct justify summary dismissal and some do not, and that the Government's proposed regulations could clarify those two categories?
Alan Johnson: That is exactly why we intend to set out in regulations the kinds of cases to which the modified two-step procedure could apply. Those would be subject to the affirmative resolution procedure.
The amendment, which relates to chapter 1, but not chapter 2, identifies a technical fault in the Bill. We are pleased to concede that it was well spotted, and we shall table an amendment on Report.
Brian Cotter: I do not intend to labour the point because the Minister has graciously accepted our argument. It is gratifying when we raise a point in Committee that needs to be addressed. On the Minister's assurance, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Brian Cotter: I beg to move amendment No. 28, in page 38, line 16, at end insert
The amendment would further clarify the types of procedures to which new subsection (2)in lines 3 and 5 of page 38refers. The new subsection refers to the fact that an employee shall not be considered to have been unfairly dismissed because of a failure to follow procedure, if following it would still have resulted in dismissal. On reading the explanatory notes, the Government seem to intend that to apply to any procedures outside the minimum statutory ones. For example, the procedure referred to in lines 3 and 5 is assumed to include additional procedures such as those included in the employee's contract, or those based on union agreements. However, as it is currently unclear that those are the procedures to which new subsection (2) refers, the amendment is designed to tighten the wording of the Bill and ensure that the procedures that the employer is required to follow are the non-statutory ones. It would make it explicitly clear that the principle is intended to apply to procedures outside the statutory minimum, such as those used in the workplace taken from the employer's handbook.
Lines 3 and 5 of the new subsection refer only to ''a procedure'' or ''the procedure'', so it is not explicitly clear that the procedures referred to are those outside the statutory minimum. The amendment would ensure that an explicit reference is made to them and I look forward to the Minister's response.
Alan Johnson: The amendment is unnecessary. One effect of clause 34, which inserts new section 98A, is to reinforce the new minimum disciplinary and dismissal procedures by making it automatically unfair to dismiss employees without following the procedures. That is achieved in new subsection (1). The affect of new subsection (2), is that it will not be unfair to
Column Number: 222dismiss an employee without following a dismissal procedure if the employer can show that following it would have made no difference to his decision to dismiss. That new subsection begins with words that are relevant to a comment made by the hon. Member for Weston-super-Mare: ''Subject to subsection (1)''. An employer will be able to escape a finding of unfair dismissal only by showing that following a procedure would have made no difference to the decision to dismiss, and only if it was a procedure that is not covered by new subsection (1)a procedure other than the statutory procedure.
Failure to follow statutory procedures will always be unfair and the wording achieves the desired effect. The minimum procedures, which will always be unfair, and the no-difference test, which is a partial reversal of Polkey in some respects and a strengthening of it in others, will only apply to disciplinary procedures over and above the basic minimum.
Norman Lamb: To return to the point that I was making, I understand the Minister's comments to mean that a large organisation might have complied with the modified procedure in a case of gross misconducta complex case with complex facts. The organisation might have chosen to dismiss without a hearing; the employee has gone and an appeal has been allowed, and then dismissed. In those circumstances, an employer could go to a tribunal and say that the person would have been dismissed anyway, thereby establishing that the procedure followed had been fair.
A large organisation such as the Post Office will be able to dismiss people for all the different and complex types of gross misconduct without having had a disciplinary hearing if it can establish that conducting such a hearing would have made no difference.
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