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Unfair Dismissal

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 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:"““I can see no realistic prospect of the European Court of Human Rights finding that the law of unfair dismissal, as applied to Mr. Beedell, breaches any of his fundamental rights under the European Convention on Human Rights. The European Court would say that domestic law has a broad discretion to decide what standards of procedural and substantive fairness to apply in this context, and that Strasbourg does not provide an appeal on the merits of individual cases.””" 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 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. The Haddon case, which dated from 1999, became one of the cases that has been used regularly in tribunals till now and governed the decisions of the employment tribunal, the Employment Appeal Tribunal and the Court of Appeal in Mr. Beedell’s case as part of the case law that interprets the Act that Parliament passed. In Mr Beedell’s case, the Employment Appeal Tribunal ruled that"““the law on dismissal for a reason which related to conduct was not altered by the recent cases of Haddon v. Van den Bergh Foods Ltd, Wilson v. Ethicon (2000) or Madden v. Midland Bank Plc (2000)””." The latter two are the other most often cited cases. As a result of the current law and its interpretation in the cases since we passed it, West Ferry Printers has been held not to have acted unfairly in dismissing Mr Beedell and to have had no duty to reinstate him. There is no argument in law about that. The last decision in Mr Beedell’s case in the law courts was five years ago. What next? I hope that I can persuade the Minister to see that there may be some scope for putting right an injustice. I understand that there are no recent Government or parliamentary proposals to change the basic legal framework or to adjust the balance between employer and employee interests in the way in which the framework currently works. There has been a new employment Act—the Employment Act 2002—which sets out new statutory and disciplinary grievance procedures. It was generally accepted and welcomed in all quarters of the House and it came into force in 2004. It ensures that internal procedures are better than they were. However, none of those changes appear specifically to tackle the balance of fairness in cases of alleged unfair dismissal. Given that that law did not change anything, on behalf of especially James Beedell, and others who might be in a similar position in future, I come to Parliament today to ask four central questions. First, is any further general review of employment legislation envisaged? Is there any plan to reconsider the test or the practice for determining whether a dismissal is fair or unfair, rather than continuing with the law and the case law that is currently used? Secondly, what options are available to Mr Beedell and people like him, who find themselves in the position of being dismissed, after an employer decision which is, at the very least, extremely harsh, and, the employee and others would argue, disproportionate and personally unfair? Thirdly, if the decision in Mr. Beedell’s case cannot be changed, and if re-engagement or reinstatement are not an option, how can Mr. Beedell—or anyone in his position—ensure that his long and excellent work record is not discounted or ignored in his search for subsequent employment as a result of the one incident that led to his dismissal? Fourthly—this is perhaps the big question—is there not a way in which natural justice could be included as an overriding principle, or as a backstop, in the way in which we evaluate such cases? This could allow people like Mr. Beedell who make what might objectively be considered to be a serious mistake once, but who are then punished for it for the rest of their working life, to have the slate wiped clean. Mr. Beedell is keen to get back into gainful employment, but the clock is ticking as he moves through his 50s, and so far this has not proved possible. The principal reason for this is that he might first be seen in the eyes of any potential employer as someone who was dismissed for fighting with a fellow employee, rather than as someone who gave committed, loyal, professional, diligent and unblemished service to his employer for 28 years. Mr. Beedell feels that he has had a raw deal. Although I understand his former employer’s decision, I agree with Mr. Beedell. How would our new Minister and his Department suggest that this case, and that of others in a similar situation to that of Mr. Beedell, be remedied, so that those affected might be treated better by the law of the land?