Clause 2

Employment Bill [Lords] – in a Public Bill Committee am 10:45 am ar 14 Hydref 2008.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Procedural fairness

Question proposed, That the clause stand part of the Bill.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

This is the second part of looking over our shoulder in the sense that the clause will return us to what we call the Polkey line in unfair dismissal cases. The House of Lords judgment in the 1987 Polkey case established the precedent that dismissal could be unfair purely on procedural grounds. However, the judgment also provided that in those circumstances the tribunal could reduce the compensation to the claimant, or eliminate it completely, in proportion to the likelihood that the dismissal would have gone ahead even if the correct procedure had been followed.

Why do we need to take such action? Having decided to repeal the statutory procedures, which we discussed under clause 1, we had to reconsider the procedural fairness provisions that went alongside them. That question was raised in the Government’s consultation on the Gibbons review and an additional detailed review of the different options was issued alongside the main consultation. One option—the one we have chosen—was to revert to the Polkey case law.

Another option was the no difference rule. Where a dismissal was unfair, provided that it could be shown that the failure to follow procedures made no difference to the decision, it would not need to be taken into account. Employees, in particular, felt that that was unfair because it gave employers a blank cheque to ignore procedures in these cases. On balance, we decided to recommend returning to the Polkey line—and, indeed, more people involved in the consultation supported returning to Polkey than to the no difference rule. Therefore, we propose to repeal section 98A of the Employment Rights Act 1996 to revert to the Polkey line of cases.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.