VOLUNTARY DISMISSAL PROCEDURES AND THE PROPOSED LEGISLATION ON UNFAIR DISMISSALS*
| Author | S. D. Anderman |
| DOI | http://doi.org/10.1111/j.1467-8543.1970.tb00582.x |
| Date | 01 November 1970 |
| Published date | 01 November 1970 |
VOLUNTARY DISMISSAL PROCEDURES AND
THE
PROPOSED LEGISLATION
ON
UNFAIR DISMISSALS*
S.
D.
ANDERMAN~
I
INTRODUCTION
Although the proposals for an unfair dismissals law contained in the
Industrial Relations Bill may have lapsed with the dissolution of Parlia-
ment in June, broadly similar proposals constitute part of the commitment
to legislation outlined in
Fair Deal at
W0rk.l
The Conservative Party’s proposals would permit dismissed employees
to
‘have the right to appeal to the Industrial Court2 (either direct or
through their Union) against alleged unjust dismissal-whether or not
the employer has fulfilled the contract termsy3 Thus,
as
with the Industrial
Relations Bill, employees who are dismissed either summarily or with due
notice will be eligible to appeaL4
If
the Industrial Court finds that the
dismissal was without ‘just cause’, it will be able to ‘award damages over
and above the entitlements under the complainant’s contract
of
employ-
ment’.5 Consequently, as in the case
of
the Industrial Relations Bill,
monetary compensation in excess of pay in lieu of notice will be
a
remedy
for unfair dismissal.6
There is however a significant divergence between the two sets
of
proposals on two issues. The first of these is the question
of
the remedy of
reinstatement. According to
Fair Deal at
Work,
the Court ‘would not.
. .
*
This article is based on
a
report prepared by the author
for
the Department of Employment
and Productivity in the Summer of
1969.
A
more extensive version of this report will be published
as
Voluntary Dismissal Procedures and the .New Legislation,
P.E.P. Broadsheet,
1970.
t
Lecturer in Law, University of Wanvick
The Conservative Approach to Modern Industrial Relations
Conservative Political Centre, April
1968.
The proposals for unfair dismissals in the Industrial Relations Bill are found in Part iv,
ss.
33-56.
For
a
comprehensive study of the principles and problems
of
the proposed legislation,
see
G.
de
N.
Clark,
Remedies for Unjust Dismissal, Proposals for Legislation,
P.E.P. Broadsheet
518,
June
1970.
The Industrial Court would be a branch
of
the High Court, like the present Restrictive
Practices Court, and would have regional divisions situated in the main industrial centres.
Each Court would consist
of
a legally qualified chairman with equal numbers
of
‘lay’ members
taken from panels nominated by employers and trade unions.
Fair Deal at Work
p.
36.
The
Industrial Relations Bill envisaged complaints going to
the
Industrial Tribunals.
Z.R.
Bifl,
1970
Fair Deal at Work,
p.
43
There is
no
indication, however, whether the new Legislation will incorporate the qualifi-
cation period of the 104 weeks
of
continuous employment and exclusions contained in the Bill.
Prominent among the excluded categories of employees were those in firms of less than four
employees, domestic servants, employees
of
pensionable age, and part time employees working
less
than 21 hours a week.
Z.R. Bill,
ss.
43-44.
6
The exact scale of this monetary compensation has not yet been determined. The Industrial
Relations Bill provided that an award
of
compensation should
be
calculated on the basis of
two-thirds
of
eight weeks’ pay and two weeks’ pay
for
each year of continuous employment up
to a maximum of twenty years.
Z.R.
Bill,
s.
40
350
Fair Deal at Work,
p.
43
THE
PROPOSED LEGISLATION ON UNFAIR DISMISSALS
351
have power to order reinstatement-although the employer’s willingness
to reinstate could be taken into account in assessing the amount of
damage^.'^
In contrast, the Industrial Relations Bill provided that the
remedy of reinstatement would be the ‘appropriate remedy’ where the
tribunal was satisfied that ‘in the circumstances
it
would be practicable
for
the employee,
.
.
to be reinstated,’ and the employee agreed.8 More-
over, if the employer refused to reinstate the employee, such a refusal
would have enabled the tribunal to award compensation, in excess of
the normal scale.g The second difference in approach concerns the issue
of the onus of proof of unfair dismissal. According to
Fair
Deal
at
Work,
the onus would be on ‘the dismissed man to show that in
all
the circum-
stances of the case his employment had been unfairly terminated, and
not on the employer to prove otherwise.’1° In the Industrial Relations
Bill the employee was required only to show that he was dismissed by his
employer.
It
would then have been left to the employer to establish the
reason for dismissal and to the Tribunal to determine whether the reason
for dismissal was unfair.”l
However, if the proposals vary in these respects, they are in close
accord on the point that adequate voluntary dismissals procedure should
be ‘exempted‘ from the statutory appeals machinery. The reasons for
this common endorsement are threefold. Firstly, in line with other labour
legislation it is thought that a dismissals statute could create a minimum
standard of protection. Secondly it is hoped that the exemption process
could act as
a
spur to employer and trade union organizations to establish
new and to improve existing dismissals procedures.
A
third and particu-
larly compelling reason for exempting voluntary procedures is the need
to ensure that dismissals complaints to the statutory tribunals are kept
within manageable proportions. Preliminary estimates of the potential
caseload suggest that the number will probably severely strain the
capacity of the Industrial Courts proposed in
Fair
Deal
at
Work.12 Unless
the Government is willing to increase expenditure to expand the capacity
of
these state tribunals, they must look to methods of reducing complaints
in order to allow the statutory machinery to deal effectively with the
caseload. Apart from the creation of a qualifying period
of
two years of
continuous employment for employees wishing to complain to the state
tribunals, there is essentially only the alternative of using voluntary
procedures to provide comparable safeguards to large groups of employees.
It
is important, however, to recognize that the exemption process
p. 43
Z.R.
Bill,
ss.
37-8.
For
a
persuasive discussion of the reasons for a remedy of reinstatement
see Clark,
oh.
cit.,
pp.
38-49.
plus 2 weeks’ pay for each year of continuous employment.
Z.R.
Bill,
s.
52
The
maximum amount
of
compensation would have been raised to a full
26
weeks’ pay
lOn
Al
11
~.i:>ill,
ss.
35
(
1)
la
A
sample attitudes
survey
commissioned by the
D.E.P.
suggested that the number
of
dismissal appeals
could
be
as
high
as
250,000 per year.
cf.
The
Tims,
13 May 1970
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