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The Deputy Speaker: My Lords, I must inform the House that if this amendment is agreed to, I cannot call Amendments Nos. 47 to 50 inclusive.
Lord Sharman: My Lords, I shall speak briefly in support of Amendment No. 46. The issue which concerns us most on these Benches is dismissal for gross misconduct. We accept that in a limited number of cases of dismissal an employee's behaviour may be both flagrant and unambiguous. But even in such apparently obvious cases, in our view there will remain an argument for proceeding with caution in taking the decision to dismiss. In any event, such considerations will not apply in the overwhelming majority of cases of gross misconduct. In most cases the opposite will be true.
As the noble Lord, Lord Wedderburn, said, the severity of the sanction of summary dismissal requires that higher, not lower, standards of procedural fairness should be adopted before such procedures are followed and such action is taken.
Lord McIntosh of Haringey: My Lords, this amendment deletes the modified dismissal and disciplinary procedure in its entirety. Amendment No. 57 would do the same for grievance procedures. Indeed, the noble Lord, Lord Razzall, moved an identical amendment in Grand Committee.
The noble Lord, Lord Wedderburn, started by discussing what he described as "the archaeology" of this measure. He started by saying that the issue was not raised in Routes to Resolution. I have an in-built objection to referring to the archaeology because I want us to consider what is in the Bill, not the consultation procedure beforehand. However, since the noble Lord, Lord Wedderburn, made the point, perhaps I may say that paragraph 3.15 on page 18 of Routes to Resolution states:
- "There will be cases, for example gross misconduct or harassment of an employee by a manager, where it would be unreasonable to expect all these actions",
- "to be completed. Tribunals would therefore be given some discretion when assessing whether the failure to follow these actions was reasonable in the circumstances or should lead to some enhancement or mitigation of the award".
The noble Lord, Lord Wedderburn, also said that there is not any right of appeal under the modified agreement. Paragraph 5 of Schedule 2, Part 1, Chapter 2 specifically provides for appeal.
Lord Wedderburn of Charlton: My Lords, I am grateful to my noble friend for giving way. I hope that I said that there was no right of appeal in a grievance procedure. My noble friend said, correctly, that Routes to Resolution states that the tribunal would have a discretion to set aside some parts of the standard
procedure. What I said—if the noble Lord looks at page 17 he will see that it is correct—is that no modified procedure, which is separate from the standard procedure, was proposed in Routes to Resolution, and that is true.5.15 p.m.
Lord McIntosh of Haringey: My Lords, the modified procedure arises from an issue which was raised for debate in Routes to Resolution and referred to in the response to consultation.
I do not know why the noble Lord, Lord Wedderburn, keeps stating that the line is not clear. We have made clear from the beginning that the modified procedure deals with instant or near instant dismissal. Without anticipating in detail what the regulations will say, the difference between instant dismissal and near instant dismissal is fairly clear. Instant dismissal takes place when the person who is capable of taking the dismissal decision, the employer, or whoever it may be, is present when the incident takes place and says, in the words of the noble Lord, Lord Wedderburn, "Get out". Near instant dismissal is when the employer is not immediately available. He has to be called from another part of the premises or from off the premises, but as soon as he returns he says, "Get out". There is nothing particularly significant about the difference there.
Clearly, those dismissals exist in real life. Neither the noble Lord, Lord Wedderburn, nor the noble Lord, Lord Sharman, suggested that there are no cases in which instant dismissal might not be justified. They both think that the number of cases should be limited as far as possible—of course they should—but neither of them say that they should not exist. They arise from cases of gross misconduct. Some are unfair—as few as possible should be unfair—but others are not. Tribunals consider the individual cases on their merits, but there is no blanket prohibition against instant dismissal.
So, under the existing law, it may be completely lawful for an employer to dismiss instantly in extreme situations without first suspending the employee or imposing some other disciplinary measure. It is our intention to leave the underlying law on unfair dismissal unchanged. When the noble Lord, Lord Wedderburn, says that that is an inroad into the enforcement of employment rights, I have to say that I believe he is wrong. I believe that the introduction of modified procedures as opposed to no procedures, which is the present situation, cannot fairly be described as an inroad into employment rights. The noble Lord says that they are unfair and crude. At present, an employer who summarily dismisses is not required to follow any minimum procedures.
The noble Lord, Lord Wedderburn, asked specific questions about cases which he described. He mentioned the three individuals who are given different periods of notice. He added to that a fourth individual who is made redundant at the same time. Perhaps I may say to the noble Lord—I know that he does not like me saying it—that those matters will be
determined by regulations, and we shall consult fully on the regulations. But we have stated our intentions—I am sure that this is what he wanted me to say—to apply the modified procedure to instant dismissals or near instant dismissals. I cannot be drawn on the specific examples given except to say that we consider that the standard procedures should apply to all other cases except instant dismissal.Some noble Lords believe that the modified procedure will undermine the sound guidance provided by the ACAS code. As we know, the ACAS code advises that most cases of gross misconduct should not result in instant dismissal but should first be subject to an internal procedure before a decision is taken. I see no reason to believe that ACAS will or should change that advice. Employers should still take it into account when assessing what to do in individual circumstances.
The schedule does not change the obligation on the employer to act fairly when dismissing. As now, the ACAS code should be taken into account by the tribunals when assessing whether the employer has acted reasonably and fairly. That is the point of the quotation I gave from Routes to Resolution. If it is currently unfair to dismiss an employee instantly for certain types of gross misconduct or in particular circumstances, that will remain the case in the future.
The modified procedure sets a new procedural standard below which employers should not fall in any circumstances. But it does not absolve employers from the need to follow more elaborate procedures where necessary. That may well involve employers suspending employees while investigations take place. It may well involve meetings with the employee before a decision is taken. Despite what has been said, the modified procedure is necessary. It deals with the special case where it is not appropriate to demand the following of the full procedure because that would involve requiring ex-employees to attend hearings. However, it does not reduce the standard against which tribunals will judge the fairness of employer actions in cases of instant dismissal. We recognise that such dismissals may or may not be fair. I hope that the noble Lord will withdraw his amendment.
Lord McCarthy: My Lords, before the Minister sits down, if he reads Hansard tomorrow he may agree that he seemed to be saying at one stage—and I should like to know whether he wants to be left on the record as saying this—that whether or not the modified procedure is available to the employer depends on where he happens to be. If he happens to be there and sees this act there can be an instant dismissal. If he is half a mile away he does not have much chance. If he is 50 yards away, perhaps he would come back. It is bizarre to think that putting a provision on the statute will encourage those who have never had procedures in their lives to look at the Bill and say, "Oh, yes, I see". Why must we have
to have this big procedure at the top? Let us have this little procedure at the bottom where, in the case of grievances, there are no appeals.The Minister seemed to be saying that the only aspect that will decide a court or tribunal is where the employer happens to be at the time. He cannot mean that.
Lord McIntosh of Haringey: My Lords, the reverse is the case. I was trying to be helpful by explaining the difference between instant and near-instant dismissals, as those were the words used by my noble and learned friend Lord Falconer. I tried as always to be helpful, but I made it clear that the chance of whether the employer happens to be on the spot, 50 yards or half-an-hour away, is not the significant factor between the standard and the modified procedure. That is why we have used the words "instant" or "near-instant" dismissal. The implication is the opposite to that which my noble friend Lord McCarthy seeks to draw.
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