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Lord Falconer of Thoroton: With the greatest respect to my noble friends, this matter is much simpler than has been suggested. The modified procedure deals with cases of instant dismissal for misconduct. Regulations will make that clear or will specify it. Therefore, Step 1 requires the employer to describe the misconduct which has already led to the dismissal. It does not make assumptions about whether the misconduct is a breach of contract or a fundamental breach of contract. That is for other people to decide if it becomes an issue. It is not a term of art; it simply says that the employer must set out in writing the employee's alleged—it is what the employer alleges—misconduct that led to his or her dismissal. It is as simple as that.
One may disagree with the Government about whether it is right that there should be this modified procedure. However, one matter that is critical is that it should be clear and simple with regard to what is required. I do not believe for one moment that replacing the word "misconduct" with the words "fundamental breach of his obligations" makes it clearer. I believe that it makes it much less clear and much more legalistic. I do not accept that the word "misconduct", which is not a term of art, causes difficulty in terms of comprehension.
My noble friend treated us to an incredibly impressive run-through of the cases on the issue of what constitutes gross misconduct when gross misconduct has been accepted by the courts as the test for what equals a breach of conduct justifying dismissal. That is what the cases were to which he referred. That is what the Lou Macari line was dealing with. At least, that is how I understood them.
My proposition—it is very simple—is that Step 1 should describe what is in the letter following instant dismissal; that is, the employer should explain the conduct which led to the dismissal. That is clear, straightforward and simple. The legal consequences of that can be dealt with elsewhere.
Lord Wedderburn of Charlton: I am grateful to the Minister for giving way. I interject with great respect only to correct him. The cases concerned do not relate to "gross misconduct". I imagine that that involves the civil law. The cases concerned relate to what is meant by "misconduct". The words "gross misconduct" do not appear in these judgments. The words "gross misconduct" may appear somewhere, but none of the decisions to which I have referred have anything to do with gross misconduct. They do not define the concept of "gross misconduct". The Minister really must not misrepresent those cases. They define the approach that is to be taken to a fundamental breach of contract
which makes dismissal, or, to be more exact, which makes the employer's treatment of the breach a repudiation of the contract, lawful. The category of gross misconduct is not used. However, let us not worry about that. I interject merely to correct the Minister. I have other points to make but he has not finished yet.
Lord Falconer of Thoroton: I have finished.
Lord Davies of Coity: I share the view expressed by my noble friend Lord Gladwin of Clee when he talked about the enormous number of employees, running into millions, who have absolutely no safeguards, no internal agreements and no provisions to redress the circumstances with which they may be faced as a result of being dismissed.
The emphasis that has been placed on the amendment is the interpretation of "misconduct"; alternative words have been suggested to be used in place of that word. My understanding of the Minister's account—let us see whether I have got this right—is that the emphasis is not so much on that word in legalistic terms. Adverse action by the employer as a result of a misdemeanour or whatever could be involved; the word is there, but the essential element in this regard is not to place an employee in further difficulty but to ensure that an employer not only has to fire somebody but has to explain to him why he is doing so and to give that employee the opportunity of redress within his company.
As I see it, that may lead to two things—I hope that the Minister will correct me if I am wrong. If some employers have a knee-jerk reaction to conduct by an employee, they will dismiss. But if they know they have to justify it in that way, they will think twice before dismissing. If they have to provide an appeals procedure, that will again perhaps deter them from turning to dismissal.
That means that an obligation is placed on the employer to be much more responsible than many of them currently are. That is where I see the advantage in this regard. I turn to what the word means in legalistic terms and whether my noble friend Lord Wedderburn sees that as a disadvantage. If an internal procedure is involved, that does not necessarily impact on the legal requirements that are taken account of in industrial tribunals, to which in some cases this will lead. Of course, if it leads to an industrial tribunal case, the employer will have to demonstrate that he has gone through this exercise to get over the first hurdle. If he has failed in this regard, he will lose his case straight away.
Lord McCarthy: Will the noble and learned Lord admit that the more we discuss the detailed contents of the modified procedure, the more dubious its advantages look? I do not believe that the Government have yet explained clearly to us why we need the modified procedures at all. All the problems that have been discussed, as the noble Lord, Lord Gladwin, said, would be dealt with more easily if one had access to the standard procedure.
The Government have now come out with the argument that the issue is not about people leaving a firm in that sense. As the Minister said in another place, it involves a combination, as I understand it, of alleged gross misconduct with a gravity and an immediacy that justifies instant dismissal. Gross misconduct to such a point where instant dismissal is discovered justifies a shortened procedure. That seems amazingly illogical to me, but never mind. The Government have not thought through why they need a modified procedure and why they now need it to deal with gross misconduct requiring instant dismissal.
In tribunals and in the legislation dealing with rights at work and unfair dismissal, a distinction is made by the tribunals between conduct and capacity. You can have a fair dismissal if your conduct is in some way wrong or lacking in what the employer is entitled to demand and you can have a fair dismissal if your capacity fails or was not adequate. Do the Government consider that this modified procedure applies to gross failures in conduct and capacity?
I give an example. Suppose—this is often the case—a worker is suddenly unable to perform in a way that he was supposed to perform and had performed in the past because of some illness or some incapacity, and the employer says, "You can no longer do the job. I am dismissing you on grounds of incapacity". Can you use the modified procedure for that, or does it involve just conduct and not capacity? If so, for goodness sake why?
Lord Falconer of Thoroton: In relation to the points made by the noble Lord, I will resist the temptation to set out my argument because he mischaracterised my argument in a number of respects. So far as the circumstances to which the modified procedure would apply, as I indicated in an earlier submission, it involves gross misconduct and instant dismissal.
6 p.m.
Lord Wedderburn of Charlton: I am grateful to my noble and learned friend but I am very sorry that he will not meet head-on my noble friend's points. We will read Hansard with interest but I do not think that he covered them.
I want to comment very briefly on four matters before I withdraw the amendment because it has been so stoutly and—I say this with great respect—stubbornly rejected by the Government. I have been looking, because I happen to have them here, at the judgments that I mentioned, but I cannot find the relevant judgment. If I am wrong in that I will write to the Minister.
Secondly, I know that I am a lawyer—I have that in common with my noble and learned friend, and we suffer the disadvantages that people refer to us in these rather unfavourable terms; people use words such as "legalistic". I would remind Members of the Committee that they are making law; they are not just drawing up some vague document. To say that one should not approach that in terms that they refer to as
"legalistic" but which I should prefer to call "adequately legal" is a lack of responsibility towards Parliament. We need to know what the law means.I have not injected this before, and the Minister will be able to refer to it in relation to subsequent amendments. However, to save time I will mention it now. The Government are inviting us to leave the Bill in a situation in which the courts will have to use the new principle—it is new to me but it happened a long time ago—raised in the case of Pepper v Hart. That is to say, where the courts cannot understand the law in a statute they are able to look at parliamentary debates. That used to be improper but the House of Lords in its wisdom decided that there were cases in which that could be done.
The Minister in another place kept saying, "It is all right, you will understand what this means not only because of regulations but because of what I say it means". The courts can only do that if they adopt the rare practice of going behind the Act and referring to parliamentary debates. Is it really the desire of the Government that these uncertainties should be left so that the courts have to decide by reference to parliamentary debates? I suspect that my noble and learned friend will say no to that. I suspect that because of what he said in his opening remarks—I hope that I will represent him fairly. He said, on this amendment and in regard to the notion of misconduct—my noble friend Lord Gladwin said that that could well involve conduct, but his point has not been answered—that regulations would make the position clearer.
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