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23 May 2006 : Column 1448

Clause 81

Determination By Head Teacher Of Behaviour Policy

Amendments made: No. 58, in page 64, line 36, leave out from ‘measures,' to first ‘to' in line 38.

No. 59, in page 65, line 8, at end insert—

‘( ) The measures which the head teacher determines under subsection (1) must include the making of rules and provision for disciplinary penalties (as defined by section 82).'.

No. 60, in page 65, line 10, after ‘measures' insert ‘to be'. —[Jim Knight.]

23 May 2006 : Column 1449

Clause 91

Parenting Contracts And Parenting Orders: Further Provisions

Amendments made: No. 61, in page 71, line 37, at end insert—

‘(3) In subsection (2), “prescribed” means prescribed by regulations made by the appropriate person under subsection (1).'. . —[Jim Knight.]

Clause 95

Duty Of Parents In Relation To Excluded Pupil

Amendments made: No. 62, in page 74, line 5, leave out from ‘offence' to end of line 6 and insert—

‘(3A) It is a defence for a person charged with an offence under subsection (3) to prove that he had a reasonable justification for his failure to comply with the duty imposed by subsection (2).'. —[Jim Knight.]

Clause 100

Failure By Excluded Pupil To Attend Educational Provision On School Site

Amendments made: No. 63, in page 77, line 39, leave out from beginning to ‘insert' in line 40 and insert—

‘(1) In section 444 of EA 1996 (offence of failing to secure regular attendance at school of registered pupil), in subsection (1A), omit “without reasonable justification”.

(2) After that subsection insert—

“(1B) It is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable justification for his failure to cause the child to attend regularly at the school.”

(3) In subsection (2) of that section, for “(3)” substitute “(2A)”.

(4) After subsection (2) insert—

“(2A) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school at any time if the parent proves that at that time the child was prevented from attending by reason of sickness or any unavoidable cause.”

(5) In subsection (3) of that section—

(a) at the end of paragraph (a) insert “or”, and

(b) omit paragraph (b) and the “or” immediately following it.

(6) In subsection (6) of that section, for “the parent shall be acquitted if he proves” substitute “it is a defence for the parent to prove”.

(7) In subsection (7) of that section, for “at a time when he was not” substitute “unless the parent proves that at that time the child was”.

(8) After that subsection'.

No. 64, in page 78, line 24, at end insert—

‘(9) In subsection (6) of section 444ZA of EA 1996 (application of section 444 to alternative educational provision), for “the parent shall be acquitted if he proves” substitute “it is a defence for the parent to prove”.

(10) In section 16 of the Crime and Disorder Act 1998 (c. 37), in subsection (4) for the words from “unless” to the end substitute “unless the child or young person is prevented from attending by sickness or other unavoidable cause or the absence falls within subsection (3) (leave or day set apart for religious observance) of section 444 of the Education Act 1996”.'.

23 May 2006 : Column 1450

No. 65, in page 78, line 24, at end insert—

‘(11) The amendments made by this section, and the entry in Part 1 of Schedule 18 relating to section 444 of EA 1996, do not apply in relation to any failure to attend at a school, or other place in relation to which that section applies, which occurs before the commencement of the amendment in question.'.— [Jim Knight.]

Further consideration adjourned.— [Huw Irranca-Davies.]

Bill, as amended in the Standing Committee, to be further considered tomorrow.


Mr. Deputy Speaker (Sir Michael Lord): I propose to put together the Questions on the three motions.

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),


National Health Service

International Development

Question agreed to.

Mr. Deputy Speaker: We now come to petitions. [Interruption.] Order. Will Members please leave quietly? We have other business to contend with. It does not help if everybody flocks out like a football crowd. [Interruption.] Order. I mean it. Tonight let us go quietly, one by one if we can, rather than rushing out.


Post Office Card Accounts

10.16 pm

Mr. Hugo Swire (East Devon) (Con): I present the petition of Councillor Christine Drew and Councillor Stuart Hughes and councillors and residents of the East Devon district council area.

The petition

To lie upon the Table.

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10.17 pm

Angela Browning (Tiverton and Honiton) (Con): I am pleased to join my hon. Friend and neighbour the Member for East Devon (Mr. Swire) and present a petition from Councillor Tony Wilkinson and councillors and residents of the East Devon district council area.

The petition

To lie upon the Table.

Oxford University (Student Rents)

10.18 pm

Mr. Andrew Smith (Oxford, East) (Lab): I am pleased to present a petition signed by 2,000 students of Pembroke college and other colleges of Oxford university protesting at the impact of excessive rent rises.

The petition states:

To lie upon the Table.

23 May 2006 : Column 1452

Unfair Dismissal

Motion made, and Question proposed, That this House do now adjourn .—[Steve McCabe.]

10.19 pm

Simon Hughes (North Southwark and Bermondsey) (LD): I am happy to have the opportunity to raise on the Adjournment the subject of the dismissal of my constituent, Mr. James Beedell. I welcome the Minister to his new responsibilities; as it happens, this debate concerns an incident that occurred in the borough, part of which he represents and therefore knows well. I hope that I have been able to assist him by letting his office know the burden of my case in advance, which I hope will help him to give as constructive a reply as possible.

Mr. James Beedell is a long-standing constituent of mine who has lived in Walworth in south London, which is just over the river, for a number of years. He first came to see me just less than two years ago about the circumstances of a previous dismissal from employment. Let me summarise my view on the matter before I go over the facts. It is my belief that in his particular case, the decision to dismiss him was harsh in light of the fact that he had worked for the same company for 28 years with an apparently impeccable record of service.

Mr. Beedell is a man in his 50s who, after a 28-year period of service in the same company, is now unemployed. As a result of his dismissal, he is finding it difficult to obtain work. The dismissal, which he is aggrieved about and which has so far prevented him from finding a new job, stems from one single altercation with a colleague in the workplace in 1998. It was that row that led to Mr. Beedell’s dismissal.

Mr. Beedell had worked for that company, West Ferry Printers, since he joined in 1970 as a casual worker—eight years later, he became a permanent member of staff. The incident which led to his dismissal occurred on 29 September 1998 and involved him and a fellow employee, Mr. Radcliffe. In short, both men were reported for fighting in the workplace. They were reported by Mr. Fisher, the press hall manager, to the production director, Mr. Lawrence, and to the personnel manager, Mr. Marsden. Both men were then suspended on full pay pending a disciplinary hearing.

In the run-up to the disciplinary hearing, potential witnesses were interviewed, and the two men apparently gave differing accounts of the incident. On 2 October 1998, disciplinary hearings took place before Mr. Fairlie, the senior press hall manager. Based on the evidence of the two men, witnesses to the incident and reports from the company nurse and from Mr. Beedell’s GP, Mr. Fairlie concluded that both men had been violent participants in the incident, and he summarily dismissed them both without notice.

Mr. Beedell subsequently appealed internally against that decision to dismiss him from the company, particularly on the grounds that he had worked for them for 28 years with an impeccable record for all that time. His appeal was heard on 16 October 1998 by Mr. Marsden, but it was dismissed. My constituent then took his case to the London (South) employment tribunal, which on 14 December 1999 upheld the employer’s decision to dismiss Mr Beedell. Mr Beedell then appealed that decision to the Employment Appeal Tribunal on 7 July 2000, and again his appeal was dismissed. He then took
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his case to the Court of Appeal in 2001, where his case was also dismissed. The final stage in the legal proceedings occurred on 20 June 2001, when the House of Lords refused his application for leave to appeal.

When Mr. Beedell first contacted me as his constituency MP, I sought advice from an eminent lawyer, David Pannick QC, who is eminent not only in that area, but on matters connected with the European convention on human rights. His opinion was that the decision to dismiss Mr. Beedell after one altercation following 28 years of impeccable service to West Ferry Printers did seem “very harsh”. However, following the decision of the Court of Appeal, David Pannick advised that there was no further legal remedy for Mr. Beedell. In May 2004, he advised me:

Mr. Beedell has therefore exhausted all legal avenues to appeal or to remedy the decision, and that is why I bring the case before the House today for Government and Parliament to consider.

Mr. Beedell’s key grievance is that he feels that the current law is biased in favour of the employer, with, in cases like his, very unfair results. Under current law, disciplinary matters are of course dealt with first by the employer. After an initial decision, there would presumably in all circumstances be an internal right of appeal. If the employee was not satisfied with the outcome of that, he or she could then go to the employment tribunal. As the House knows, employment tribunals either dismiss the claim of unfair dismissal or uphold it. Most cases are dismissed, although the most recent Tribunals Service annual report that I have seen, which was published about a year and a half ago, shows that in 10 per cent. of cases that went to the employment tribunal in England and Wales in 2004-05, the employer was held to have unfairly dismissed the employee.

After a finding of unfair dismissal, there are various remedies that the tribunal can give. Among those is the right to recommend re-engagement or reinstatement. The employment tribunal does not then have a power to substitute its own view of the fairness or unfairness of the decision to dismiss. But if it finds that the dismissal was unfair, although it cannot force the employer to re-engage or reinstate the employee, if that is what it holds should happen, the employer will be penalised financially if they do not follow the recommendation and the employee will be financially compensated. I understand why that is the case; it is to ensure that one does not end up putting an employer and employee back together in situations where they are not going to get on. According to the latest Tribunals Service annual report for 2004-05, re-engagement or reinstatement in a case of unfair dismissal was very rarely the decision of the tribunal. Only 0.4 per cent. of cases—one in every 250—led to reinstatement.

Mr Beedell argues that the figures show how difficult it is, first, for an employee to win a case against the
23 May 2006 : Column 1454
employer; and secondly, even if the employee wins, for him to get his job back. That is the important aspect that I want the Minister to address specifically, because the rest is can be seen as the normal situation in all unfair dismissal cases. One of the key reasons why Mr. Beedell and people like him understandably feel that they have a bad deal in employment law is that tribunals are governed by the “reasonable response” test. In accordance with section 98(4) of the Employment Rights Act 1996—which is still the governing piece of legislation—the question of the fairness of the dismissal, first, depends on whether in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and, secondly, shall be determined in accordance with equity and the substantial merits of the case.

That may sound fine on the face of it, but it does not always work out that way. The test means that for a dismissal to be lawful, an employer’s decision to dismiss an employee must fall within the range of reasonable responses open to an employer in all circumstances. That in turn means that a given set of circumstances may result in one employer deciding to dismiss and another employer, in the same or similar circumstances but equally reasonably, deciding not to dismiss.

In addition, the law provides that, when considering whether a dismissal is “fair” or “unfair”, and when determining whether an employee’s conduct justifies dismissal, an employment tribunal cannot substitute its view for that of the employer about what is “reasonable”, provided that the employer’s decision was within a band of reasonable responses open to a reasonable employer.

Several decisions by the Employment Appeal Tribunal and other cases have been reported, but I shall cite only one case. Mr. Haddon took his employers, Van den Bergh Foods, to the tribunal and the case was decided on 29 September 1999. In it, the Employment Appeal Tribunal sought to reformulate the test of reasonableness. The key elements of the case were simple. Mr. Haddon had received a long-service award at a presentation that started at 5.30 pm with a buffet supper afterwards. He failed to clear with his manager that he would not need to return to the evening shift after the presentation, although employees were not normally required to do so. A disciplinary hearing took place and Mr. Haddon was dismissed for failing to return to work after the presentation. The employment tribunal decided that the dismissal was fair because it was not outside the “band of reasonable responses” open to the employer. However, the Employment Appeal Tribunal—rightly, in my view—decided that the dismissal was unfair.

According to the Employment Appeal Tribunal, the test of reasonableness is objective—that is, the tribunal must ask itself what a reasonable employer would have done; the “band of reasonable responses” test is not helpful as there are bound to be extreme views at either end of the band, and all tribunals must consider whether the employer acted reasonably in dismissing the employee in all the circumstances.

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