Below is the text of the speech made by Greville Janner, the then Labour MP for Leicester West, in the House of Commons on 26 June 1978.
I am happy to have this opportunity to discuss the increasing failure rate in claims for unfair dismissal brought before industrial tribunals. The latest figures were supplied to me by the Minister on 9th June and show that the failure rate is now 69 per cent.—that is to say, those who bring unfair dismissal claims stand at least a two-to-one chance of losing. Their prospects of success are now no more than 31 per cent.
In addition, according to the figures for the second quarter of 1977—the latest for which figures are available—even if successful they would recover an average of only £355. In other words, the failure rate is 69 per cent. and even where it is ruled that they were dismissed unfairly they will probably get no more than £355.
I am sure that the House will find these figures profoundly worrying. Employment protection legislation, which had its embryo in “In Place of Strife”, which was brought in without dissent as about the only uncontroversial part of the Industrial Relations Act 1971 and which has been strengthened by a series of Acts introduced by the present Government, has been designed to protect people in their jobs, so that a man may truly say, “This is my job.” By that he means that it is not to be taken from him without good cause and that if it is taken he will have a reasonable prospect of good compensation to tide him over and cushion him against one of the miseries of fate, which was in no way of his making.
What has happened to the prospects of success? In 1972, about 34 per cent. succeeded. That was regarded as a low rate and was to no small extent due to people bringing claims out of time. Instead of 28 days people were given three months after the termination of employment in which to bring claims. The success rate rose to 37 per cent. in 1973 and 1974, and to 38 per cent. in 1975. Then there was a small drop to 36 per cent. in 1976 and a massive fall of 5 per cent. between 1976 and 1977.
Those of us who are concerned that employees should be properly protected ask ourselves why there has been this drop in the protection of employment. The answer that we commonly hear from the Opposition is that too many claims are brought without justification and should never have been allowed to proceed. It is true that some claims should never have seen the light of day, but equally there are hundreds, if not thousands, which are not brought because the ordinary person remains apprehensive of tribunals anxious about courts and happy to keep as far away as he can from lawyers, tribunals, chairmen and procedures of the law.
I regret to say that other people do not bring claims because they do not want to be labelled as troublemakers, knowing that when they apply for other jobs, if they have been before a tribunal, prospective employers will say “We do not want this man: he is liable to be a nuisance.” So we can balance the bad claims which should not have been brought against the good claims which should have been brought but which were not.
So I come to the question of industrial tribunals. Why is it that this failure rate is probably the highest in any tribunal in Britain? I suggest, after not inconsiderable experience in this sphere, that there are two main reasons. First, employers are learning to operate procedures which are at least apparently fair. They document their procedures. Where possible, they give at least one written warning of intended dismissal. Where a tribunal is faced with a fair procedure, the employer nearly always wins.
Equally and conversely, the employee does not know how to operate any such procedure for his own protection. The average person does not know, for example, that when he receives a memorandum of complaint, when he receives a warning suggesting that he may lose his job if he does not change his ways, he should reply in writing and that he should keep a copy of his reply. The documentation of his case is as important to him as it is to the employer. The employer will have his case on file. The employee will be left naked before the storm without any form of documentation and usually with little or no oral corroboration to assist him.
It is true that wise employees who are members of trade unions will go for help, but they generally do so after they have been dismissed. It is equally true, alas, that the average employee does not know that, although he cannot get legal aid, he can get up to £25 worth of legal help, if not more, under the Legal Aid and Advice Act in the preparation of his case.
That leads me to my second point. In general, the average employee is not as articulate as the average employer. I happily pay tribute to the chairmen and members of industrial tribunals who do their level best to assist those claimants who appear on their own and in some cases they lean over backwards to do so. In some cases they descend into the arena, and they cannot maintain that balance which a judicial function requires.
I submit that the lack of representation in industrial tribunals is as sad as it is understandable. One wants to avoid the legalistic approach. One wants to avoid the growth of what some judges have described as a plethora of case law. However, we are dealing with legal rights, with cases in which people’s future is to be decided according to the law of the land. We are dealing with cases in which there is an appeal—alas, on points of law only —to the Employment Appeal Tribunal, and one cannot avoid dealing with legal niceties. It is the law which was brought in to protect the employee when voluntary effort has so dismally failed to do so.
So today there is a failure rate of 69 per cent. There is an average award of only £355 for the 31 per cent. of claimants who are lucky enough to proceed. So why is it that we hear the plaintive cries of chambers of commerce and employers’ organisations throughout the land that the employee is over-protected? It is obvious that the employee is under-protected. The protection which the law is meant to accord to him is not providing the cushion which he needs.
The truth is that the employers’ associations are making political capital in order to avoid further protection and they are complaining of what they describe as undue protection of the employee for one of two reasons. Either they do not know the truth, or they do not wish to know it and are deliberately misrepresenting the truth. Either they do not appreciate that there is a two-thirds failure rate and that the average successful claimant receives only £355 and that, as far as one can tell, not one claimant has ever received an “additional award” or approached anywhere near the magical £13,400, or they do know it and are deliberately ignoring it.
The fact is that the average employee is not sufficiently protected and the aver- age employer should be told that if he provides that decent measure of protection which the employee is entitled to receive he has very little to fear from the law. There is no reason why this protection should not be afforded. After all, it is no more than the requirement of a decent system, with fair regard for rights and a fair and proper way of dealing with people in their jobs.
In many cases, it is not the inarticulate shop floor employee who is inadequately protected. It is the manager and the executive. The higher up a person goes, the greater is his loss if he is pushed off the shelf into the mire of unemployment, and the greater is the need for his protection since the more difficult it may be for him to get another job.
At every level there is inadequate protection, which is not realised because people do not want to know and not appreciated because there is a deliberate campaign by employers’ organisations to make out that precisely the opposite is the case, in the teeth of the truth and in the face of the figures—69 per cent. failure rate and £355, on average, when someone succeeds.
What can the Government do about it? First, I draw my hon. Friend’s attention to the assurance which he gave in the debate we had on this subject a few months ago, when he said that he would have the procedures of the tribunals looked into with a view to seeing whether there was some way in which they could be improved so that, for example, the parties to a case could know rather more in advance what they would face when they arrived at the hearing.
That improvement will not necessarily protect the employee. As we have seen, he has no documentation to assist him. In addition, of course, while the employer can generally bring oral evidence to assist his case, the employee cannot do so because the only people who could assist it are his colleagues at work, and they in their turn are afraid of losing their jobs. The employee does not know how to us the witness summons or subpoena to bring them to the hearing, and even witnesses called on subpoena have a nasty habit of losing their memory as a result. The employee may not get more evidence without assistance, but he will at least be without the documentation and know precisely the case he has to face.
Secondly, I suggest that we ought to provide far more information to employees about how they can help themselves—about how they can, for example, make use of their right to request written particulars of the reasons for their dismissal and about the duty of employers to provide those reasons within two weeks of the request.
The employee and his trade union should be helped to understand the need for documentation and the need to try to set out the employee’s case in writing in the same way as employers do. Indeed, the need here is greater for employees than it is for employers because employers will have other evidence and employees will not. Employees should learn to understand, and should be told by the Department of Employment, how best to present their case. I hope that if these suggestions were followed there would be an increase, not a decrease, in the number of those successful in their efforts.
I wish in conclusion to pay a personal tribute to my hon. Friend the Minister of State. He has been at work, beavering away in the background in his modest and unassuming way, trying to help people at work virtually ever since 1974, and before that date, outside the House, for most of his working life. I should not like him to feel that this effort to find common ground in order to assist people is in any way intended as an attack upon him or the service which he is giving and which, I am sure, he will give. It is much appreciated.
On the other hand, somehow my hon. Friend has failed. We have failed. Employees are not receiving the protection which they should have. The latest figures which my hon. Friend has given prove that. I hope that he will be able to provide some hope of improvement, some greater protection for the employee and, perhaps, some hope also that the employer may have reason to worry rather more than he does at present if he does not follow those fair systems which, after all, are designed by the law to protect the employee from unfairly and unreasonably losing his job.