HC Deb 16 February 1945 vol 408 cc574-80

  1. (1) Any officer of the local authority on war service—
    1. (a) to whom sub-section (4) of Section six of the Education Act, 1944, would have applied if he had not been engaged in war service immediately before the date of the commencement of Part II of that Act; and
    2. (b) who having been taken into the employment of his former employer as defined by Section seven of the Reinstatement in Civil Employment Act, 1944, continues to be employed by that employer after the period prescribed by Section four of that 575 Act but on terms and conditions less favourable to him than those on which he would have been employed had the said subsection (4) applied to him; and
    3. (c) who by reason of the terms and conditions of his employment being less favourable to him as aforesaid suffers any loss or injury, not being a direct pecuniary loss in respect of which he is entitled to compensation under any other provision of this Act:
    shall be entitled to recover from his former employer such sum as shall be sufficient to compensate him for that loss or injury.
  2. (2) Paragraphs 1, 2, 3, 8, 9 and 11 of the Schedule to this Act shall apply to claims for compensation under this section, subject to the modifications that the references to the local authority and the Minister shall be construed as references to the said former employer and the Minister of Education, respectively.—[Mr. Burden.]

Brought up, and read the First time.

Mr. Burden

I beg to move, "That the Clause be read a Second time."

I hope the Minister will not think it ungracious of me, in view of what he is doing in this Bill, if I press this Clause on his attention, but it deals with one aspect of the problem which we think has not yet been covered. May I recall that the Education Act, Section 6, Sub-section (4) provides that transferred officers shall be employed on the same terms and conditions as they were immediately before the transfer. It can easily be appreciated, I think, that among the transferred officers there may be varying sick pay conditions, and other similar conditions, but under the Section I have just mentioned the authority to whom these officers have been transferred cannot vary the conditions. As I read this Bill as it is at present, an officer in the Forces, coming back, has no similar protection so far as his conditions of service are concerned. I admit, of course, that he has protection for 12 months under the Reinstatement in Civil Employment Act, but after that period, I understand, he has no protection of any kind, and the authority to whom he has been transferred may vary his conditions of service in any way they may think fit.

It may be argued that it is not usual to provide for contingencies of that kind, but, as the Committee is always sympathetic to precedents, may I recall that in the London Passenger Transport Act, 1933, Section 73, Sub-section (3), there is adequate protection for all service conditions for the persons transferred under -that Act. My hon. Friend the Member for South Bristol (Mr. A. Walkden) who, no doubt, had a part to play while that Act was being passed, will recall with me what a mixed lot of people from all sorts of undertakings were brought within the scope of that Act. As I see it, the long Title of the Bill gives scope for what I am asking, because it covers deterioration in the conditions of employment, etc., of these officers and I suggest that I am in Order in asking the Minister, within the terms of the Title of the Bill, to give consideration to the point I am making. I am sure that from the way in which the right hon. and learned Gentleman has approached this problem, and the way in which this Bill is drafted, he has no desire, if it can possibly be avoided, that any officer serving in the Forces should be in a worse position than one who, fortunately or unfortunately, has not been called to the Forces. I agree that there must always be an element of risk in this matter, but so far as we can do justice I believe it is the desire of the Minister that we should do justice, and I ask him to give sympathetic consideration to this Clause, even if the words on the Order Paper do not quite meet the position I have outlined.

Mr. Willink

This is a technical matter and I hope I shall be able to explain it with sufficient lucidity. I am grateful to my hon. Friend the Member for the Park Division of Sheffield (Mr. Burden), who understands so much about these matters, for having raised this question, and I think I had better review the position and see what really comes out of an examination of it. In the Education Act there is a requirement, under Section 6, Sub-section (4), that officers employed by a county district council immediately before 1st April, 1945, in an educational capacity, are to be transferred to the county council on the same terms and conditions. It is quite true that those who were in the service of the county district, and who are on war service on 1st April, will not be covered by the Section. They will, however, come within the Reinstatement in Civil Employment Act and, surprising as it sounds, the definition in that Act has this result: that the county council is their former employer for the purposes of the Act. So the county council will have to take these officers into their service on terms and conditions not less favourable than those previously enjoyed or, if that is not reasonable and practicable, in the most favourable occupation and on the most favourable terms which are reasonable and practicable.

In the Bill as it stands, in so far as any of these officers suffer a direct pecuniary loss, they will be entitled to compensation in respect of that loss, and my real trouble about this new Clause is that it is quite expressly directed to losses which are not direct pecuniary losses at all. I think I am right in saying that these provisions for compensation of local government officers, on a change in functions, have always been in terms of direct pecuniary loss. We should be going outside the shape of the main provisions of the 1933 Act and its Fourth Schedule, and we should be entering a field of very great obscurity. I am not sure what compensation a local authority would feel it was being asked to make in respect, for instance, of a diminution of the period of annual leave, or a lower scale of sick pay or something of that kind. One can get a formula for compensation for loss of office or reduction of emoluments, but, with respect to my hon. Friend, I think the method of calculating compensation is left, in his Clause, entirely in the air and inevitably so, because it is really impossible to define. If the county council does not do what it should, in this curious capacity in which it is described as the former employer, the officer has legal rights against the council. But this particular form of compensation which the Clause suggests is a form of compensation which would be special for the case of an officer of a county district who had been on war service, and one to which the officer who had remained at home all the time would not be entitled, and therefore it would go outside the main purpose and scope of the Bill whose object is to put officers on war service as far as practicable in the same position as those who are not.

1.45 P.m.

That is really the objection to it, because for the law to be in a logical condition after to-day one would really have not only to accept this. Clause but to amend other Acts, possibly the Education Act and the Reinstatement in Civil Employment Act, in order to provide, not for the reinstatement at present provided for but for the employment on identical terms and conditions of both classes of officers, those who have gone on war service and those who have not. If that is a true analysis of what is really asked for, I think it can be seen that both in principle and in the shaping of the Bill one would be going outside the scope of what is intended in the Bill and, though I am sympathetic to the suggestion, I am afraid I cannot accept the Clause.

Mr. G. Hutchinson

This is certainly a technical and very involved matter and I am grateful to my right hon. and learned Friend for the explanation which he has given, but he has not entirely convinced me that the reasons which have prompted him to reject the Clause are really well-founded. He has said, quite rightly, that the purpose of the Bill is to place those officers on war service in the same position as those who have not gone on war service. The Clause was intended for exactly that purpose. The difficulty that the officer on war service finds himself in is that, by reason of the fact that he is on war service, he does not enjoy the special advantage enjoyed by those still in the service of a county district authority at the time of the transfer to the county authority, with the special obligation on the latter to employ the transferred officer on the same terms as those on which he was employed by the county district authority. That is an advantage which the officer who remains in the service of the authority enjoys under the Education Act, and it is an advantage which the officer on war service does not enjoy. Because he is not actually transferred at the time of the transfer, the only right that he has to be employed on the same conditions as those on which he was employed before he proceeded on war service arises under the Reinstatement in Civil Employment Act. That is only temporary, and the point of the Clause is to meet the position which arises when that temporary obligation is exhausted. It is at that stage that the officer on war service at the time when the transfer takes place may be at a disadvantage. In those circumstances I would like the Minister to look at it again and see if it is not possible to hold out some hope that he can meet this rather exceptional situation. I am sure he would not be setting any undesirable precedent if he attempted to deal with an exceptional position by an exceptional method.

Mr. Burden

I thank the right hon. and learned Gentleman for the way in which he has given attention to the matter, but I would again plead with him to see whether he can meet us in some way or other. There may be two men employed by the same authority. One is transferred and the other is away on war service. The transferred man is entitled to sick pay for six months. That cannot be altered under the terms of the Education Act, but the new county authority's sick pay arrangements may be for three months only. When the man who has been on war service comes back, he goes to the county authority and is protected for 12 months. He retains his original right. After that the county authority would put him on three months' sick pay. That is a typical instance, and it may apply to all concerned in other conditions of service. There is a precedent in the London Passenger Transport Act, 1933. I will not press the right hon. and learned Gentleman further to-day but I would ask him to look at it again before Report.

Mr. Willink

My hon. Friends have put their case very persuasively but I hope I have satisfied the Committee of what I believe myself, that this is really not a question of setting an undesirable precedent or anything of that kind but of implanting into the Bill something that amounts to an amendment of the Education Act and the Reinstatement in Civil Employment Act. It is really extending in principle the obligation for the re-employment of officers of Part III authorities. I think many difficulties would arise. For those men who have been on war service there is no right to exactly the same employment on their return. The obligation on the county council will not be to take them into something exactly comparable with their former employment, and this is the general law. The obligation is to take them into their service on terms and conditions not less favourable than those on which they were previously employed or, if this is not reasonable and practicable, in the most favourable occupation and on the most favourable terms that are reasonable and practicable. The hon. Member has spoken of something which might occur after 12 months. But a change might occur within 12 months and yet the county council has complied with its statutory obligation. I see the greatest difficulty in going beyond what is the general scope of compensation provisions, both generally and in this Bill, in going beyond direct pecuniary loss, which is what has always been covered so far, in providing for the special and really rather exceptional circumstances which my hon. Friends envisage and for a type of loss which, not being directly pecuniary loss, is very difficult to assess. Having considered it carefully I am afraid that I must stand firm and say that I see no hope of getting this additional provision in the Bill.

Question, "That the Clause be read a Second time," put, and negatived.

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