§ 7.0 p.m.
§ Mr. Graham Page
I beg to move, in page 3, line 8, after "and", to insert:the written statement required by this section to be given shall not constitute a written contract".I do not know whether I dare move this Amendment after the remarks of the right hon. Member for South Shields (Mr. Ede) about not wanting any lawyers on these Amendments at this stage, because this is a rather legalistic Amendment. It is not entirely a drafting Amendment. I would call it a clarifying Amendment.
This is the first Amendment to Clause 4, which deals with the written particulars of the terms of employment, the written particulars to be given by the employer to the employee after a certain period of employment. Subsection (1) says that the whole Clause shall not apply so far as the terms of employment are contained in a written contract. Subsection (2) directs that certain terms shall be set out in a written statement.
In the discussions in Committee it was undoubtedly shown that at least some people were led to read and to think of the written statement as being a contract, as being the written contract of employment itself. We should make it 1143 quite clear that that is not so, that the written statement is not the contract of employment and is not to be deemed to be any written contract. For that purpose, I wish to insert the Amendment. I will read the first three lines of the Clause as they would then appear:This section shall apply in relation to terms of employment only if and so far as those terms are not contained in a written contract, and the written statement required by this section to be given shall not constitute a written contract.In writing that out, I had a semi-colon at the end. It is probably quite right that the printers did not put it in, but I mention it because hon. Members might otherwise read that straight into the Clause. If one puts in a semi-colon, it makes sense.
There are two reasons for saying that we ought to mention this specifically in the Clause. The first is that there are many cases in which it has been said by Statute that some form of contract is invalid unless it is in writing, or unless there is some evidence in writing of the contract. I wish to make it quite clear that we are not doing that in the Bill. The contract of employment is perfectly valid without any written statement, before any written statement is given. There is a period between the time when the employee is engaged and that when it is necessary to give the written statement when there is no written statement. We should be clear that there is a contract at that time even though there is no written statement.
The second reason is that the written statement itself cannot create any terms of contract. It is merely to be a statement of what the employer thinks the contract means. The employee should be under no obligation to deny that in any way or to correct the statement. The statement is entirely unilateral on the part of the employer and it does not bind the employee at all. The employee should not be obliged, if he thinks the statement is wrong, to do anything about it. It would be wise for him perhaps to do so, but in law he should not be estopped from doing that in any way.
We should make it quite clear that the statement is not a contract, but merely a unilateral statement by the employer of what he thinks the contract is on certain terms. Because in discussion in Commit- 1144 tee it was evident that this was not clear to everybody reading the Clause, I think that we ought to make it clear before it goes any further.
§ Mr. Whitelaw
My hon. Friend the Member for Crosby (Mr. Graham Page) has very properly referred to a discussion which we had in Committee. While he was speaking, I looked up what I said on this point at the time. I said:It may be that the legal advice on the matter will prove to all concerned that no change is necessary. I have, however, undertaken to consider before the next stage of the Bill whether such a change is necessary to remove all possible doubt."—[OFFICIAL REPORT, Standing Committee D, 28th March, 1963; c. 375.]I am advised that no such change is necessary and that the matter is already beyond all possible doubt. If that is so, the Amendment is really unnecessary.
The words in Clause 4(1), which this Amendment would immediately follow, as my hon. Friend has pointed out, already say that the Clause is to apply… only if and so far as the terms are not contained in a written contract…I am advised that there is no doubt that this makes it perfectly plain that the written statement is not a written contract. If it were one, as soon as the written statement was given to the employee, Clause 4 would stop applying, because he would then have a written contract. I think that my hon. Friend would agree that that would be so.
I think, too, that it is plain from the language of Clause 4(2) that the written statement is not the contract but only records terms which are already in existence.
I am grateful to my hon. Friend for giving me this opportunity to assure him that, on the best advice, this Amendment is not necessary, and I hope that, having had this positive assurance, he will feel able to withdraw it.
§ Mr. J. Robertson
In Committee, I have occasion to draw attention to the fact that in relation to Scottish law there was possibly a slightly different interpretation about contracts than that given by the hon. Gentleman. It has been ruled that if it is the clear intention initially to reduce the contract to writing, the contract is not binding until the writing has been effected. In other words, there are slightly different conditions there and, in 1145 fact, the writing would become the contract if it were understood that it described the contract. There is no requirement in Scotland for any special seal on a contract or other requirements that are required in English courts.
I am not at all clear about this. We have not had the advantage of any Scottish Law Officer in dealing with this matter, although it was agreed by the Solicitor-General that there were very clear differences in detail in the law relating to contract between the two countries. It has not been cleared up to my satisfaction at any stage whatsoever.
I would never suggest that I am in a position to contradict anything said by the hon. Member who moved the Amendment or the Parliamentary Secretary, but I feel that at least on one occasion we might have had someone representing the Scottish position from the Government benches, because there is still a matter of doubt. The best advice that I have been able to get from people connected with the law in Scotland is that this matter is in doubt in relation to the law of Scotland, and it would be as well at sometime or other, possibly in another place, that we should have the minds of some Scottish legal people on this question of contract.
§ Mr. Graham Page
It is my hope that if this is ever questioned in court the learned judges will study the words of my hon. Friend the Parliamentary Secretary. I fear that they will not, but I hope that they will, and in that hope I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Whitelaw
I beg to move, in page 3, line 9, to leave out "hours normally worked are" and to insert "hours of employment are normally".
It might be for the convenience of the House, Mr. Speaker, if this Amendment was considered together with the Amendments to the First Schedule which are linked with it, in page 8, line 27, leave out "working" and insert "employment", and in page 10, line 45 leave 1146 out "worked by" and insert "of employment of".
§ Mr. Whitelaw
The purpose of the Amendments is to remove any doubt which may be occasioned by the use of the word "work" or "working" and to cover circumstances in which work may not necessarily be actually proceeding. The hon. Member for Glasgow, Govan (Mr. Rankin) gave an example of this in Committee when he referred to the position of air crews standing by when a flight was cancelled or postponed during bad weather. Such periods are, however, unquestionably covered by the word "employment" and I think everyone will agree that its use is to be preferred. I therefore ask the House to accept the Amendment.
§ Amendment agreed to.
§ Mr. Gunter
I beg to move, in page 3, line 10, to leave out "twenty-one" and to insert "ten".
It is not my intention to deal at length with the Amendment because the point at issue was discussed in considerable detail in Committee, but I must revert for a moment or two to that discussion because it was a most unsatisfactory one.
Time and again we came across that strange fellow in industry, the casual worker who comes and goes and who the Minister says he cannot define. It seems to us that it ought to be possible to tell the man who works for 10 hours a week that he is employed under certain terms and conditions. I do not share the Parliamentary Secretary's zeal about these provisions. I do not think it will matter a lot whether this piece of paper is given to a man who works for 21 hours a week, or to a man who works for 10 hours a week. The hon. Gentleman knows my views. This is not a contract. The hon. Gentleman has said so. It is a piece of paper which in many ways will not matter tuppence.
If, however, we are to have a slip of paper, a little chitty, setting out the terms and conditions on which a man is employed, I cannot for the life of me see why he should not be given a piece of paper if he is employed for 10, 15, or 19 hours a week. There are many people who work for only two or three hours a day. A man may be employed in a canteen or as a crossing patrol keeper 1147 and may not put in 21 hours a week. I cannot understand why he should not be included in this provision.
During our discussions in Committee upstairs the hon. Member for Aylesbury (Sir S. Summers) forsook his usual aloofness and said that we did not understand the working classes, and that our claim to understand them was not true because we did not talk to them. I began to wonder what the hon. Gentleman was getting at. He then said that if we were to meet the women and girls in his village who picked potatoes we would be able to talk sense about working-class conditions. I do not know a lot about that type of labour because my experience has been in the large industries, but for the life of me I cannot understand why someone who normally and regularly works less than 21 hours a week should not be informed of his terms of employment, in the same way as workers who work a longer week are informed of theirs.
Some people in my constituency are employed for three hours a day, and five days a week, making sausages. Why should not they be told about their conditions of work for making sausages, just as a bloke who works for 42 hours a week at some other job is told his conditions of work? I ask the Minister to look at this again with a view to including these other people. If this provision is to be of any value, I fail to understand why the person who works for fewer than 21 hours a week should not be told of his terms of work.
§ 7.15 p.m.
§ Mr. K. Lewis
The hon. Member for Southwark (Mr. Gunter) talked about people who worked sausage machines for 10 hours a week. There are many people who work for 10 hours or less a week, and I doubt very much whether they would be enthusiastic about having a written contract of service.
§ Mr. Gunter
I think that the hon. Gentleman is mistaken. This is not a written contract of service.
§ Mr. Lewis
This is the Contracts of Employment Bill, and employees are to 1148 have a piece of paper on which is set out their terms of employment. We have to draw the line somewhere, and I think that the Minister has drawn it in the right place, because 21 hours represent about half the average working week.
There are many people who take on casual work. One can think of the paper boy, the old-age pensioner who takes on the odd job, the daily help, and so on. I do not know whether the hon. Gentleman wants these people to be included in the provisions of this Clause. The fact that a contract in the form of a piece of paper is to be given to people employed in industry does not mean that everybody has to be included in the scheme. We ought to leave an area in which the arrangement between the employer and the employee is a verbal one. We do not want to tie everybody to written terms of employment, and I think that it is reasonable to draw the line at 21 hours. If we bring in people who work for only 10 hours a week, we shall go much too far, and I therefore remain convinced that 21 hours is about right, and that 10 hours is too low.
§ Mr. Gunter
If this piece of paper is to be of any value, or to give any protection, the people about whom the hon. Gentleman has been talking are the people who need it most. Those employed in large industries do not need it.
§ Mr. Lewis
The hon. Gentleman is making a case for not giving a piece of paper at all. It has been generally accepted that this piece of paper is to be given to people employed in industry, but that does not mean that we have to go right down the line and bring in everybody. It does not mean that we have to bring in the man who has come to the end of his normal working life and is doing the odd job. It does not mean that we have to include the young lad who has not started his working life but who does a paper round in the morning. There is no reason at all why they should be included, and I think that the choice of 21 hours is correct.
§ Mr. John McCann (Rochdale)
I intervene briefly to support the Amendment because I raised this point in Committee and I believe that the Amendment will help to remove an anomaly.
In Committee my hon. Friend the Member for Aberdare (Mr. Probert) 1149 raised the question of road crossing attendants and home helps. These people are employed in greater numbers than ever before. The Minister made a determined defence of his point of view and asked us to withdraw the Amendment on the undertaking that he would look at this question again. We are now at the Report stage, and the Minister has not kept his promise. The hon. Gentleman made a significant remark in Committee. He said that there was no evidence to show that there were a significant number of people who worked for fewer than twenty-one hours a week who needed the protection of the Bill. Has the Minister made any inquiries to discover whether that statement is true?
During our discussions in Committee I raised the question of manufacturers' agents. These people usually work for more than twenty-one hours a week, but because they work for different employers they are denied the protection of the Bill. It was in order to try to bring them within the scope of the Bill that I raised this question. The Commercial Travellers' Association wrote to the Minister about this, and on 8th April, in reply, he said:Clause 4 of the Bill will apply to employees who normally work for their employer; for 21 hours or more a week. If an employee works for each of two employers at least 21 hours a week then he may acquire rights with both of them. Whether or not a person is an 'employee' will depend on whether he comes within the definition of 'employee' in Clause 6.This means that if an employee works for three different employers for twenty hours a week each and works for sixty hours a week instead of twenty-one, he still will not qualify for notice, whereas under this Amendment if he works for three employers for thirty hours a week he will.
The end of the Association's letter to me epitomises what a number of people feel. It says:we must now hope that the Minister will be accommodating in recognising the genuine needs of many thousands of hard working citizens who play a vital part in the nation's trade and commerce and have therefore a right to expect some recognition and protection in the legislation now before the House".We all recognise that a manufacturer's agent does exactly the same work as a commercial traveller, who, because he works for one employer, is covered. If the manufacturer's agent works for two 1150 employers and does less than twenty-one hours a week for each, he is not covered. I support the Amendment, because it would bring many thousands of these people within the ambit of the Bill.
§ Mr. R. Gresham Cooke (Twickenham)
The hon. Member for Rochdale (Mr. McCann) has raised an interesting point which had not occurred to me, and which did not occur to other Members when the Committee discussed the question of the number of hours worked. We were then directing our minds to people on the shop floor, clerical workers, and so on. We did not realise that there are commercial travellers who work on a week's notice, sometimes given orally. I take it that a full-time commercial traveller will come within the provisions of the Bill as well as anybody on the shop floor.
The problem which the hon. Member has raised arises in the case of the manufacturing agent who works for more than one employer. There again, I suppose that if he works twenty-one hours or more for each of two employers he is entitled to two separate bits of paper—one from each employer. But if he is working for three employers he is presumably working a normal week of only fourteen hours for each, and is not covered. But in that case I cannot help feeling that he is well on the way towards being self-employed. I imagine that he holds himself open to enter into a contract with a large number of manufacturers and employers If he is a self-employed person it is open to him to make his own contract with each separate employer.
§ Mr. McCann
The point is that he may be working on an agency for somebody else. Since he does not do twenty-one hours a week, although he may have worked for years, and built up an agency, he can still have the agency taken from him without notice.
§ Mr. Gresham Cooke
I agree. If he is working only under an oral arrangement he can lose his agency quickly. But if a man takes on three of four agencies he is becoming rather like a professional man—like an accountant with various clients. In that case it is up to him to make his separate arrangements with each manufacturer.
1151 I hope that the Parliamentary Secretary will say a few words on this problem, because we did not discuss it in Committee. A case of this kind was brought to my attention recently. The straightforward commercial traveller is fully covered, but I have my doubt about the manufacturers' agent.
§ Mr. James Dempsey (Coatbridge and Airdie)
I did not have the advantage of hearing the opinions stated in Committee, but from the speeches that I have heard, especially from hon. Members opposite, one would imagine that the piece of paper that we are referring to is a written contract, instead of merely being an informative notification of the terms of employment. Hon. Members opposite are placing that emphasis on the Amendment.
§ Mr. Dempsey
I think that hon. Members opposite are taking the wrong line. They overlook the fact that what we are talking about is a piece of paper informing people, as a matter of decency, of the conditions under which they are employed—a piece of paper which merely gives them formal notification of their terms of employment.
I know of several sections of the community whose members work for less than 21 hours a week, and who will therefore be ineligible to receive this simple formal notification. There are office cleaners, who work two hours in the mornings and two hours in the afternoons. They work four hours a day, for five days a week, which means that they work only 20 hours each week. Under the terms of the Bill they will not receive this notification of their terms of employment. That seems to me to be unfair. If it is correct that what we are discussing is a simple notification, I cannot see why that category of person should be excluded.
Then there are dining room attendants, who will be employed under conditions which will not be notified to them. They may be employed for three hours a day and five days a week—fifteen hours a week in all. They will not be covered, in spite of the fact that the Joint Industrial Council for Scotland caters for this category in the matter of sickness and holiday periods. This Council goes to a 1152 great deal of trouble to give these part-time employees protection by taking various measures, and yet they are to be denied the simple notification which the Clause provides for part-time workers throughout the country, because they are employed less than 21 hours per week.
There are several other similar categories of worker. I do not agree with the hon. Member opposite who stated that we are talking about persons who have some other form of subsidiary employment. He also mentioned old folks who had become crossing wardens in order to augment their miserable pensions. But we are discussing other people as well. There are working widowed mothers, who are able to work only for a part of the working week because of their family responsibilities. There are thousands of part-time shop assistants. Our distributive trades could never meet consumer demand without the employment of that part-time element in our shops. They work for less than 21 hours a week at week-ends.
If the Parliamentary Secretary really has examined the question he must have overlooked all these categories. I hope that he will agree to consider the matter again. He will have nothing to lose. I have often heard hon. Members opposite say that this piece of paper is definitely not a contract; it is merely a modified form of notification of terms of employment. If that be so, as we are told that it is—that is the argument to which I have listened—there can be no valid reason why people who work fewer than 21 hours a week should be excluded. Many people have to take such part-time work to augment low wages and pensions, and I do not see anything unreasonable in asking the Minister to accept this Amendment.
§ 7.30 p.m.
§ Mr. Whitelaw
When the hon. Member for Rochdale (Mr. McCann) was referring to manufacturers' agents being keen to come within the ambit of this provision I could not help reflecting that his argument ran counter to the rather derogatory remarks of the hon. Member for Southwark (Mr. Gunter) about "a little bit of paper". If manufacturers' agents regarded the matter as the hon. Member for Southwark sought to regard it, perhaps they would not be so keen. I must tell the hon. Member for Rochdale 1153 that manufacturers' agents are usually self-employed, and therefore they are not covered by the provisions in this Bill. Many of them have written contracts which are not contracts of employment. I can reassure my hon. Friend the Member for Twickenham (Mr. Gresham Cooke) about the position of commercial travellers who work for one employer.
There seem to be an implied rebuke in the words of the hon. Member for Southwark because I was not sufficiently definite on a previous occasion during a Committee stage discussion. But I was charged by the hon. Member for East Ham, North (Mr. Prentice) with being dogmatic. When I sought not to be dogmatic, I was told that I was not sufficiently definite. I was trying to please both hon. Gentlemen which was perhaps, an unwise thing for me to attempt, and I will not fall into the same trap again.
The requirement regarding a written statement will not apply if an employee normally works fewer than twenty-one hours a week for an employer. The Opposition Amendment seeks to reduce that period to ten hours and we have had proposals to vary the figure downwards and upwards. I admit—this is why I think it so difficult to be dogmatic—that this is very much a question of judgment as to where the line should be drawn. The Government have chosen a minimum period of twenty-one hours, because it would not cover employees working for less than half of a normal working week. In other words, it is reasonable to assume that those who will be covered by the provisions in the Bill are people who rely for their livelihood upon their employment to a substantial extent.
§ Mr. Gunter
Has consideration been given to the change which is taking place in the employment situation because of the five-day week, and the fact that many people work for four hours a day for five days a week? I am sure that the Parliamentary Secretary will know that many people work twenty hours a week, which is one hour less than the normal.
§ Mr. Whitelaw
The hon. Member for Southwark and the hon. Member for East Ham, North, being quicker than me, often arrive before I do at a point which I am just about to reach. I am coming to that point, which is a valid one, and I accept it at once.
1154 I was asked, I think by the hon. Member for Rochdale, whether consideration had been given to the position of some people who worked for fewer than twenty-one hours, but who relied to a substantial extent on their job for their livelihood. We have discovered that this is the case with those who work what is known as the twilight shift—it was referred to by the hon. Member for Paisley (Mr. J. Robertson)—who number about 25,000 and are nearly all women with domestic responsibilities. That is the position at the present time. We did not find any other large section of the community which works in a similar fashion.
§ Mr. Whitelaw
By his intervention from a sitting position the hon. Member far Coatbridge and Airdrie (Mr. Dempsey) has helped my argument. The hon. Gentleman referred to shop assistants who are part-time. My case is that the provisions in the Bill should cover people who rely to a substantial extent on their job for their livelihood.
§ Mr. Dempsey
I was trying to emphasise that a number of people living north of the Border, who are part-time shop assistants, work on Friday or Saturday, or only at the weekends when there is an increased volume of trade.
§ Mr. Whitelaw
Those are just the people whom I think it doubtful that we should cover by the provisions in this Bill.
If we made the figure ten hours, we should include people with spare-time occupations and those who do weekend jobs, and I do not think that it would be right to apply the requirements in this Bill when the employment relationship is not of substantial importance to the parties concerned. Having considered this matter again, and looked for classes of people who work for fewer than twenty-one hours and yet rely to a substantial extent on their job for their livelihood, we have decided that a period of twenty-one hours is right at the present time. I admit that this is a question of judgment about where the line should be drawn. But we believe that the figure of twenty-one is correct.
1155 The hon. Member for Southwark suggested that there is an increasing tendency for people to work for fewer than twenty-one hours and that this tendency may increase. The hon. Gentleman has a point. I believe it right to keep the figure of twenty-one hours at the present time. But in order to meet his point, we will consider whether it would be right to take power to vary the period, if that proved necessary in the light of further developments regarding working hours. I think that is a sensible thing to do in view of any further developments. But I stick to my contention that at present the right place at which to draw the line is at twenty-one hours. There may be a difference of opinion on the matter, and that I accept. But having decided that, and although this is a matter of judgment, I think that that figure should remain.
§ Mr. Gunter
In view of the Parliamentary Secretary's last remarks, are we to understand that it is the intention of the Government to support a 40-hour week throughout industry?
§ Mr. Whitelaw
The hon. Member for Southwark is too old a hand to think that he can draw me one way or another into discussing wider issues than those relating to the provisions in this Bill. I am saying that I believe that twenty-one hours is the correct figure and the right place at which to draw the line at the present time. But, in view of developments which could occur, it would be right to consider whether it is proper to take power to vary that provision.
§ Amendment negatived.
§ Mr. Speaker
With this Amendment it would be convenient to discuss the next Amendment in the name of the hon. Member for Southwark (Mr. Gunter): in page 3, line 11, leave out "five" and insert "two".
§ Mr. Whitelaw
Would it also be convenient, Mr. Speaker, to discuss at the same time the two Government Amendments in page 5, lines 17 and 18.
§ Mr. Whitelaw
These Amendments 1156 concern the time limit by which written statements are to be given under Clause 4. There was considerable discussion on this point in Committee. The Committee had before it some Amendments which would have reduced the time limit, or even abolished it altogether, and other Amendments which proposed an extension of the time limit to fifteen or twenty-six weeks. At the conclusion of the discussion, my right hon. Friend made clear that he had been convinced that it was no longer possible to retain the five-week period and that the period must be extended. He did not at that time commit himself to an exact period. Since then, as these Amendments show, he has decided that it would be right to make the period thirteen weeks.
The arguments for lengthening the time limit was put powerfully by my hon. Friends the Members for Aylesbury (Sir S. Summers) and for Derbyshire, West, (Mr. Crawley) and were fully discussed. I do not think it necessary to set out those arguments at great length now.
The difficulty arises from casual and temporary employments. The most outstanding example is in agriculture. A very small proportion of farmers have any clerical work, yet a farmer with perhaps one or two permanent employees may engage large numbers of people on a casual basis to help at particular times of the year. Not only is the number large, but those people come and go and are replaced by others. It is impossible for the farmer to say which ones have been with him continuously for five weeks working twenty-one hours or more a week. These casual workers where they work on a succession of crops may stay with the same employer for a total of up to three months. It would be quite impractical to require the farmer to give these casual workers written statements.
There are many other industries where there is a fringe, small or great, of casual and temporary workers. It is very doubtful whether the labour put on the employer of producing written statements would be justified by the benefits to the employee. Their employment often lasts more than five weeks, but many look on the job simply as a means of earning some extra spending money and not as a serious sort of livelihood.
The other Amendments affect Clause 4(12). The change they would make is 1157 partly consequential on a decision to abandon the five-week limit which is referred to in Clause 4(12). It would also get rid of a weakness in the present wording which was pointed out in Committee by the hon. Member for East Ham, North, who moved an Amendment for the hon. Member for Glasgow, Govan (Mr. Rankin) in his absence. The weakness is that under the present wording an employer commits no offence by giving his employee false particulars of his terms if the employee happens to leave before the time limit is up. This is clearly wrong, but it is put right in the Amendments that we now propose.
I do not imagine that in moving this Amendment I am likely to carry the hon. Member for Gloucester (Mr. Diamond) or the hon. Member for East Ham, North (Mr. Prentice), with me on this occasion. Nevertheless, having considered the discussion in Committee and the particular problems with which we are confronted, I think that this period of thirteen weeks is right.
§ Mr. Prentice
I am most grateful to the Parliamentary Secretary for one thing. In undertaking the formidable task of deputising for my hon. Friend the Member for Glasgow, Govan (Mr. Rankin) I seem to have secured a tactical victory in reference to the suggested Amendment to page 5, line 17.
The Parliamentary Secretary was right in saying that he would not carry us with him on the Amendment he has moved, for it is clearly a retrograde step. My hon. Friend the Member for Southwark (Mr. Gunter), when moving the previous Amendment, said that we did not feel that the statement provided for by this Clause would be of great value to a large number of workers. This is our view, but so far as it has value it would be more likely to be achieved for people whose type of employment is rather less secure than the average. Anyone who goes to work in a large industry where there are written contracts and agreements is likely to find what his terms of employment are more easily than people who work for shorter periods in various types of employment which are not organised and subject to negotiations. Those people will be much more likely to benefit from a statement of this kind.
1158 For that reason we wanted to bring the period down as low as possible and in Committee we sought to reduce the five-week period. Now we wish to resist the Government's intention of raising it to thirteen weeks. No real case has been made in favour of the thirteen-week period. The Parliamentary Secretary said that the case was put powerfully by some of his hon. Friends in Committee. That powerful argument escapes my recollection and I do not think there has been powerful argument employed by the Parliamentary Secretary this evening. It seems to boil down to the position of the poor farmer struggling by the light of an oil lamp late at night trying to spell a statement out on the back of an envelope. Because he has no clerical help of any kind, this is a great burden to him. I think that is nonsense. Inevitably the filling in of forms has become part of agricultural work. The very system of agricultural support which is welcomed keenly by farmers inevitably involves a lot of form filling. The amount of form filling provided under this Clause would be very modest.
It comprises just a few particulars to be given to an employee. To suggest that that is a big clerical burden for the farmer or anyone is absolute nonsense. The person who would go for a period of employment between five and thirteen weeks would be the very person who could be exploited. If I went to a farmer seeking work of that kind and he found—as he would find—that I am a timid and tongue-tied sort of chap, I might not be able to establish the terms on which I was employed. I might not know what difference it would make whether I was working for a small number of hours because of bad weather or from dawn to dusk on a summer's day because the weather was good and advantage must be taken of it. I might not be quite clear about the amount of pay to which I was entitled.
It is just that type of person who ought to have a clear statement as a matter of right. The case is stronger for people employed for between five weeks and thirteen weeks than for people employed for longer periods. We therefore insist that this is not a good Amendment and we hope that we may get support from hon. Members opposite in that view.
§ 7.45 p.m.
§ Sir S. Summers
Anyone who hears an argument described as powerful and does not agree with that argument cannot, of course, accept that it is powerful. I do not want to go over the ground very much again in supporting the Government on this thirteen weeks, which I think is not only nearly right but quite right as the period for this purpose.
The hon. Member for East Ham, North (Mr. Prentice) got a little confused about the farmer. It was not this particular exercise which it was thought would be likely to worry farmers—the calculation of the six months average pay for those who might have to have their wages assessed during notice. Leaving aside the occasional workers, farmers hope that those who come to work for them will stay in their employment. For those people the farmer will have to write a document comprising the relevant conditions given in Clause 4. It is absurd to suggest that those who work for this magic period, described as particularly relevant—five to thirteen weeks—should have a document telling them of the holidays they will get, of the pay they will receive while on holiday, what will happen if they suffer sickness or injury, and to what sort of pensions they will be entitled in that period.
This document and the number of weeks which shall elapse before the man is entitled to receive it are intended to apply to people who will be in long-term employment, not those employed for a period anything like as short as two weeks. The change to two weeks from five would be infinitely worse than the five weeks. I hope that the Government will stick to the thirteen weeks.
§ Mr. A. J. Irvine
I regard this Amendment as the most mischievous thing the Government have perpetrated in connection with the Bill. The hypothesis in which this matter is all the time considered is that some serious importance attaches to the passing of what has been described as a piece of paper. It is regarded as important that there should be available this statement of what the terms and conditions of service are. If the document possesses that importance, it justifies the whole exercise. It is clearly desirable that it should pass as soon as reasonably practicable and that the employee should have it as early as 1160 may be. It is derogatory of the importance of the document that so long a period as thirteen weeks could elapse before there is any need to hand it over. Many people in future times will notice this, will reflect that it is an extraordinarily long time to delay before the document is required to pass, and will want to know the reason for this delay, which is quite indefensible. In nine cases out of ten it will serve no useful purpose.
The reason why is apparent to us. The reason is that the Government have found it totally impossible to incorporate in the Bill a definition of the casual worker. There is no other reason. I think this will be recognised on both sides of the House. Workers who are not casual workers will have to wait longer than is necessary, and longer than is desirable, for the transmission of the document, because of the difficulty which was found in separating them as a matter of definition from casual workers.
I think that this is a disappointing step. It reveals the lack of enthusiasm amongst hon. Members opposite for their own Bill. I wish that the Bill would provide for the passing of the document after the shortest possible interval of time. To the extent that that would cause difficulty in the case of casual workers—I acknowledge that it might if the matter were left there—I wish that the difficulty had been overcome by a clear and crisp definition in the Bill of the workers who should not be expected to receive the statement so early because of the casual character of the employment in which they are engaged. There should be a definition of the casual worker which would in this way make it not necessary in this case for the document to pass in the minimum period. I do not think this has been handled in a fashion which reveals any confidence in their own Bill on the part of hon. Members opposite.
§ Mr. Diamond
The Parliamentary Secretary has great prescience. He was right in saying that he would not carry any of us, myself in particular, on this Amendment. It is, as my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) said, a retrograde step and a most regrettable one. I want to approach the matter in a slightly different way. The hon. Member for Aylesbury (Sir S. Summers) has said that this thirteen weeks is not 1161 only about right but just right. That was a powerful thing to say. It is something to lend oneself to an exact thirteen weeks. Twelve and a half would be wrong. Thirteen and a half equally would be wrong. However, I have no doubt that the hon. Gentleman has excellent reasons for saying this.
If I am right, the hon. Gentleman also said in Committee that one of the great arguments for this period would be that it should coincide with the period which we have referred to earlier in the Bill after which a notice of one week has to be given. The hon. Gentleman was supported by other hon. Members opposite, who said that there was a considerable argument in favour of making these two provisions the same in point of time.
One of the particulars which has to be given on this paper after thirteen weeks is—the length of notice which the employee is obliged to give and entitled to receive …What is the length of notice after thirteen weeks? If the employer is relying on the statutory provisions, at the end of thirteen weeks under the Bill as it stands at present the length of notice is nothing. In three months' time it will be a week's notice. Immediately complications arise.
The Parliamentary Secretary carefully avoided making any comment as to why this period would be a different period
§ from the previous one. It was open to him to make some comment on this, because both periods are being altered. If one was fixed and we were considering only one, that would be a different matter, but this afternoon we have considered both.
§ It would be wrong for me to hark back, but it is justifiable for me to say that if the Parliamentary Secretary had referred to thirteen weeks instead of twenty-six weeks at an earlier stage of the Bill he could have used that argument in support of thirteen weeks at this point. He has not done so and he has not acceded to the argument strongly pressed on him by many of his hon. Friends in Committee that these two periods should be identical. As he has not done so, he has denied himself the only possible argument in support of thirteen weeks. I share with my hon. and learned Friend the very strong view that this is a retrograde step. It is a great pity that it is being taken, because throughout the Committee stage and to-day we have moved the Bill forward in a progressive sense. This is the one sense in which it is going backwards, and it is going backwards badly. I only wish that I had more than one vote in the Division Lobby.
§ Question put, That "five" stand part of the Bill:—
§ The House divided: Ayes 161, Noes 204.1165
|Division No. 105.]||AYES||[7.57 p.m.|
|Abse, Leo||Davies, S. O. (Merthyr)||Hill, J. (Midlothian)|
|Ainsley, William||Dempsey, James||Holman, Percy|
|Awbery, Stan (Bristol, Central)||Diamond, John||Houghton, Douglas|
|Bacon, Miss Alice||Dodds, Norman||Howell, Charles A. (Perry Barr)|
|Barnett, Guy||Donnelly, Desmond||Hoy, James H.|
|Baxter, William (Stirlingshire, W.)||Driberg, Tom||Hughes, Cledwyn (Anglesey)|
|Beaney, Alan||Duffy, A. E. P.||Hughes, Emrys (S. Ayrshire)|
|Bence, Cyril||Ede, Rt. Hon. C.||Hughes, Hector (Aberdeen, N.)|
|Bennett, J. (Glasgow, Bridgeton)||Edelman, Maurice||Hunter, A. E.|
|Benson, Sir George||Edwards,Rt. Hon. Ness (Caerphilly)||Hynd, H. (Accrington)|
|Blackburn, F.||Edwards, Robert (Bilston)||Hynd, John (Attercliffe)|
|Blyton, William||Edwards, Walter (Stepney)||Irvine, A. J. (Edge Hill)|
|Boardman, H.||Ferrlyhough, E.||Irving, Sydney (Dartford)|
|Bottomley, Rt. Hon. A. G.||Fletcher, Eric||Janner, Sir Barnett|
|Bowden, Rt. Hn. H. W. (Leics, S.W.)||Forman, J, C.||Jay, Rt. Hon. Douglas|
|Boyden, James||Fraser, Thomas (Hamilton)||Jenkins, Roy (Stechford)|
|Bradley, Tom||Galpern, Sir Myer||Johnson, Carol (Lewisham, S.)|
|Bray, Dr. Jeremy||George, LadyMeganLloyd(Crmrthn)||Jones, Dan (Burnley)|
|Brockway, A. Fenner||Ginsburg, David||Jones, Elwyn (West Ham, S.)|
|Broughton, Dr. A. D. D.||Gourlay, Harry||Jones, J. Idwal (Wrexham)|
|Brown, Thomas (Ince)||Greenwood, Anthony||Kelley, Richard|
|Carmichael, Neil||Griffiths, David (Rother Valley)||Kenyon, Clifford|
|Collick, Percy||Griffiths, Rt. Hon. James (Llanelly)||King, Dr. Horace|
|Corbet, Mrs. Freda||Gunter, Ray||Lawson, George|
|Craddock, George (Bradford, S.)||Hamilton, William (West Fife)||Ledger, Ron|
|Crossman, D. H. S.||Hannan, William||Lee, Frederick (Newton)|
|Dalyell, Tam||Harper, Joseph||Lee, Miss Jennie (Cannock)|
|Davies, C. Elfed (Rhondda, E.)||Hart, Mrs. Judith||Lever, L. M. (Ardwick)|
|Davies, Harold (Leek)||Hayman, F. H.||Loughlin, Charles|
|Mabon, Dr. J. Dickson||Owen, Will||Stonehouse, John|
|McBride, N.||Paget, R. T.||Stones, William|
|McCann, John||Pannell, Charles (Leeds, W.)||Symonds, J. B.|
|MacDermot, Niall||Peart, Frederick||Taverne, D.|
|McInnes, James||Pentland, Norman||Taylor, Bernard (Mansfield)|
|McKay, John (Wallsend)||Prentice, R. E.||Thomas, George (Cardiff, W.)|
|MacMillan, Malcolm (Western Isles)||Price, J. T. (Westhoughton)||Thomas, Iorwerth (Rhondda, W.)|
|MacPhereon, Malcolm (Stirling)||Probert, Arthur||Thompson, Dr. Alan (Dunfermline)|
|Mallalieu, J.P.W. (Huddersfield, E.)||Randall, Harry||Timmons, John|
|Manuel, Archie||Rankin, John||Tomney, Frank|
|Mapp, Charles||Roberts, Albert (Normanton)||Wainwright, Edwin|
|Marsh, Richard||Roberts, Goronwy (Caernarvon)||Warbey, William|
|Mason, Boy||Robertson, John (Paisley)||Watkins, Tudor|
|Mendelson, J. J.||Rodgers, John (Sevonoaks)||Weitzman, David|
|Millan Bruce||Rodgers, W. T. (Stockton)||Whitlock William|
|Mitchison, G. R.||Ross, William|
|Moody, A. S.||Short, Edward||Wilkins, W. A.|
|Morris, John||Silverman, Julius (Aston)||Williams, D. J. (Neath)|
|Moyle, Arthur||Skeffington, Arthur||Williams, LI. (Abertillery)|
|Mulley, Frederick||Slater, Mrs. Harriet (Stoke, N.)||Williams, W. T. (Warrington)|
|Neal, Harold||Slater, Joseph (Sedgefield)||Willis, E. G. (Edinburgh, E.)|
|Noel-Baker,Rt.Hn.Philp(Derby,S.)||Small, William||Winterbottom, R. E.|
|Oliver, G. H.||Soskice, Rt. Hon. Sir Frank||Yates, Victor (Ladywood)|
|O'Malley, B. K.||Spriggs, Leslie|
|Oram, A. E.||Steele, Thomas||TELLERS FOR THE AYES:|
|Oswald, Thomas||Stewart, Michael (Fulham)||Mr. Bedhead and Mr. Grey.|
|Agnew, Sir Peter||Errington, Sir Eric||Longbottom, Charles|
|Allason, James||Farey-Jones, F. W.||Loveys, Walter H.|
|Arbuthnot, John||Farr, John||Lubbock, Eric|
|Atkins, Humphrey||Fell, Anthony||McLaren, Martin|
|Awdry, Daniel (Chippenham)||Finlay, Graeme||McLaughlin, Mrs. Patricia|
|Barlow, Sir John||Fletcher-Cooke, Charles||Maclean,SirFitzroy(Bute&N.Ayrs)|
|Batsford, Brian||Fraser, Ian (Plymouth, Sutton)||Macleod, Rt. Hn. Iain (Enfield, W.)|
|Baxter, Sir Beverley (Southgate)||Gammans, Lady||MacLeod, John (Ross & Cromarty)|
|Berkeley, Humphry||Gilmour, Ian (Norfolk, Central)||McMaster, Stanley R.|
|Bevins, Rt. Hon. Reginald||Gilmour, Sir John (East Fife)||Macmillan, Maurice (Halifax)|
|Biffen, John||Goodhart, Philip||Macpherson.Rt.Hn.Nial(Dumfriea)|
|Bingham, B. M.||Goodhew, Victor||Maginnis, John E.|
|Bishop, F. P.||Cough, Frederick||Maitland, Sir John|
|Black, Sir Cyril||Gower, Raymond||Markham, Major Sir Frank|
|Bossom, Hon. Clive||Grant-Ferris, R.||Marten, Nell|
|Bowen, Roderic (Cardigan)||Gresham Cooke, R.||Mawby, Ray|
|Box, Donald||Grosvenor, Lt.-Col. R. G.||Maxwell-Hyslop, R. J.|
|Brewis, John||Hamilton, Michael (Wellingborough)||Maydon, Lt.-Cmdr. S. L. C.|
|Brooman-White, R.||Harris, Reader (Heston)||Mills, Stratton|
|Bryan, Paul||Harrison, Col. Sir Harwood (Eye)||Miscampbell, Norman|
|Buck, Antony||Harvey, Sir Arthur Vere (Macclesf'd)||Montgomery, Fergus|
|Bullard, Denys||Harvey, John (Walthamstow, E.)||More, Jasper (Ludlow)|
|Bullus, Wing Commander Eric||Heald, Rt. Hon. Sir Lionel||Morgan, William|
|Campbell, Gordon (Moray & Nairn)||Hendry, Forbes||Neave, Airey|
|Carr, Compton (Barons Court)||Hiley, Joseph||Nicholls, Sir Harmar|
|Carr, Robert (Mitcham)||Hill, J. E. B. (S. Norfolk)||Nicholson, Sir Godfrey|
|Cary, Sir Robert||Hirst, Geoffrey||Oakshott, Sir Hendrie|
|Chichester-Clark, R.||Hocking, Philip N.||Osborne, Sir Cyril (Louth)|
|Clark, Henry (Antrim, N.)||Holland, Philip||Page, Graham (Crosby)|
|Clark, William (Nottingham, S.)||Hollingworth, John||Peel, John|
|Clarke, Brig. Terence(Portsmth,W.)||Hooson, H. E.||Percival, Ian|
|Cleaver, Leonard||Hornby, R. P.||Peyton, John|
|Cole, Norman||Howard, John (Southampton, Test)||Pickthorn, Sir Kenneth|
|Cooper, A. E.||Hughes-Young, Michael||Pike, Miss Mervyn|
|Cooper-Key, Sir Neill||Hulbert, Sir Norman||Pilkington, Sir Richard|
|Cordeaux, Lt.-Col. J. K.||Hutchison, Michael Clark||Pitt, Dame Edith|
|Cordle, John||Irvine, Bryant Godman (Rye)||Pott, Percivail|
|Corfield, F. V.||James, David||Price, David (Eastleigh)|
|Costain, A. P.||Jennings, J. C.||Prior, J. M. L.|
|Coulson, Michael||Johnson, Eric (Blackley)||Prior-Palmer, Brig. Sir Otho|
|Craddock, Sir Beresford (Spelthorne)||Johnson Smith, Geofirey||Proudfoot, Wilfred|
|Cunningham, Knox||Jones, Arthur (Northants, S.)||Pym, Francis|
|Currie, G. B. H.||Jones, Rt. Hn. Aubrey (Hall Green)||Ramsden, James|
|Dance, James||Joseph, Rt. Hon. Sir Keith||Rawlinson, Sir Peter|
|d'Avigdor-Goldsmid, Sir Henry||Kaberry, Sir Donald||Redmayne, Rt. Hon. Martin|
|de Ferranti, Basil||Kershaw, Anthony||Ridsdale, Julian|
|Donaldson, Cmdr. C. E. M.||Kirk, Peter||Rodgers, John (Sevenoaks)|
|Doughty, Charles||Kitson, Timothy||Roots, William|
|Drayson, G. B.||Lancaster, Col. C. G.||Royle, Anthony (Richmond, Surrey)|
|du Cann, Edward||Leavey, J. A.||Russell, Ronald|
|Duncan, Sir James||Legge-Bourke, Sir Harry||St. Clair, M.|
|Eden, John||Lewis, Kenneth (Rutland)||Sharpies, Richard|
|Elliot, Capt. Walter (Carshalton)||Lilley, F. J. P.||Shaw, M.|
|Elliott,R.W.(Newc'tle-upon-Tyne,N.)||Lindsay, Sir Martin||Shepherd, William|
|Emmet, Hon. Mrs. Evelyn||Litchfield, Capt. John||Skeet, T. H. H.|
|Smith, Dudley (Br'tnf'd & Chiswick)||Thorpe, Jeremy||Ward, Dame Irene|
|Speir, Rupert||Tiley, Arthur (Bradford, W.)||Wells, John (Maidstone)|
|Stevens, Geoffrey||Touche, Rt. Hon. Sir Gordon||Whitelaw, William|
|Stodart, J. A.||Turner, Colin||Williams, Dudley (Exeter)|
|Stoddart-Scott, Col. Sir Malcolm||Turton, Rt. Hon. R. H.||Williams, Paul (Sunderland, S.)|
|Storey, Sir Samuel||Tweedsmuir, Lady||Wills, Sir Gerald (Bridgwater)|
|Studholme, Sir Henry||van Straubenzee, W. R.||Wilson, Geoffrey (Truro)|
|Summers, Sir Spencer||Vane, W. M. F.||Wolrige-Gordon, Patrick|
|Taylor, Frank (M'ch'st'r, Moss Side)||Vaughan-Morgan, Rt. Hon. Sir John||Woodhouse, C. M.|
|Teeling, Sir William||Wade, Donald||Woodnutt, Mark|
|Temple, John M.||Walder, David||Woollam, John|
|Thatcher, Mrs. Margaret||Walker, Peter|
|Thomas, Sir Leslie (Canterbury)||Walker-Smith, Rt. Hon. Sir Derek||TELLERS FOR THE NOES:|
|Thornton-Kemsley, Sir Colin||Wall, Patrick||Mr. Rees and Mr. MacArthur.|
§ Word "thirteen" there inserted in the Bill.
§ Mr. Whitelaw
I beg to move, in page 3, line 22, at the end to insert:(including any terms and conditions relating to normal working hours),".The effect of this Amendment is to provide that when putting into writing any terms and conditions relating to hours of work the employer is to include any terms and conditions relating to normal working hours.
The Amendment serves a useful purpose in assisting the new rules for minimum pay during notice to be applied. As I explained earlier, different provisions are to apply to employees who have normal working hours and those, such as commercial travellers, who do not. It will obviously help in the application of the provisions if it is clear from the written statement given to the employee under the Clause whether there are any normal working hours and, if so, what they are. The Amendment will draw attention to the point and I hope, therefore, that the House will agree that it is useful and should be adopted.
§ Amendment agreed to.
§ Mr. A. J. Irvine
I beg to move, in page 3, line 38, at the end to insert:Provided further that anything contained in the written statement aforesaid purporting to derogate from an employer's duty or obligations by statute or common law shall have no effect in derogating from such duty or obligations.This Amendment raises a point about which we received an assurance in Committee upstairs to the effect that the proposals made at that time would be considered by the Government. I infer from the fact that no Government Amendmnet has been tabled that they have received advice that it is not necessary to make provision in the Bill for the 1166 difficulty that this Amendment is designed to meet.
This does not altogether surprise me. Nevertheless, my hon. Friends and I still believe that it would be desirable for the Amendment to be accepted. We have been reminded time and again today that the written statement is not to be a contract. The hon. Member for Crosby (Mr. Graham Page) moved an Amendment to make this abundantly clear in the body of the Bill, and after that Amendment was rejected the House received abundant evidence from the confusion which arose on the benches opposite that there was force in the argument the hon. Member for Crosby had deployed.
Be that as it may, it is now understood that the written statement is not a contract. However, I do not believe that that concludes the matter, particularly when one considers the desirability of requiring there to be on the statement the kind of provision for which we are asking in the Amendment. Many an employee on receipt of the statement will, however mistakenly, think that it is a contract, or that it is conclusive evidence of the character of the contract under which he is working. That being so, it is very desirable that no misunderstanding should arise. Our Amendment is designed to avoid the risk that in the particular circumstances, albeit they are likely to be rare, there will be incorporated in the written statement language that would purport… to derogate from an employer's duty or obligations by statute or common law …The fact that the written statement would have no legal effect is not conclusive, because the recipient might think that it had some enforceable effect—such cases might be rare, but this would be by no means the first time that we have provided for them—and might conceivably 1167 be discouraged, because of provisions in the written statement, from initiating proceedings on his own or courses designed to remedy what he regarded as a wrong.
If this proviso appeared in the Bill, it would be some discouragement to employers to resort to a course of action about which I have expressed anxiety, and it would diminish, although it would not altogether exclude, the risk that there might appear in the written statement words derogatory to common law and statutory rights purporting to be enforceable and which, although not enforceable, might be regarded by the employee recipient as being enforceable and, therefore, adversely affect the action he takes.
§ Mr. Whitelaw
I fully appreciate why the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has moved this Amendment. He has rightly returned to a point which, in Standing Committee, we agreed to consider, without commitment. He has made it clear that he thinks it extremely unlikely that anything contained in the written statement might be presented in such a fashion as to derogate from either statute or common law. I must tell him that the advice I have had on this point is perfectly clear and that, of course, is why nothing has been put down at this stage. There is really no possibility that anything in a written statement could have this effect. The written statement merely reflects the terms of an already existing contract. It is quite clear that an employer does not have the power to use the written statement for any such purpose as evading obligations under statute or common law.
Having said all that, I appreciate the hon. and learned Gentleman s anxieties, but we have to remember that Clause 4(10) provides penalties for including false information in the written statement. An employer who attempted to do anything of the kind that the hon. and learned Gentleman probably has in mind might run the risk of incurring a criminal penalty as, I think, the hon. and learned Gentleman would agree.
He then asked why, if it would help the people who might have doubts, such a proviso should not be added. There is always a temptation to say that if a provision cannot do any harm it might as well be added as it can only do good, but 1168 declaratory provisions can do harm—as I need hardly tell the hon. and learned Gentleman—because of what they leave unsaid. Clause 4 is already heavily enough burdened without the addition of anything that I think might be superfluous. I take the hon. and learned Gentleman's point, and I think he takes mine, but because I think that the point the Amendment seeks to make is already absolutely clear, I suggest that, on balance, it would be better not to adopt it.
§ Amendment negatived.
§ Amendments made:
in page 5, line 17, at beginning insert:
If an employee's employment terminates within the time limited by this section for giving a statement required under subsection (2) or subsection (5) of this section, and before the statement is given".
In line 18, leave out from first "of" to end of line 19 and insert:
the failure to give the statement".—[Mr. Hare.]
§ 8.15 p.m.
§ Mr. Diamond
I beg to move in page 5, line 37, at the end to insert:and without prejudice to the generalities of the foregoing such further particulars may be particulars of the amount of the severance payment to be made by the employer to the employee in respect of the termination of employment".
§ Mr. Deputy-Speaker
I think that with this Amendment we can also take the Amendment in page 7, line 10, at end insert:severance payment" means a payment, whether contractual or not, which is made by an employer to an employee and which is in respect of this termination of his employment and not by way of commutation of any right which the employee would have had if his employment had been continued.
§ Mr. Diamond
At last we come to an Amendment which the Government will be prepared to accept, notwithstanding that it comes from the Opposition—for the first time during the course of today. I say that because this Amendment has been put down entirely to meet their convenience. I do not expect the House to accept the Amendment in these precise words, because a misprint appears to have crept in. The word "generalities" should read "generality," but I feel sure that the error can be dealt with either by a manuscript Amendment or, possibly, without any Amendment but by an adjustment in the usual way.
1169 The purpose of this Amendment, and of that which we are considering with it, and why I am reasonably confident about its acceptance, is that in the Standing Committee we had considerable discussion about the relevance of introducing into the Bill at this stage a reference to severance pay. Severance pay was mentioned in the Bill in the first place and the definition was there incorporated, so that all I need say about the second Amendment is that it copies, word for word, the definition appearing in the Bill in the first place.
However, the way the matter was dealt with in Committee was to suggest, in a new Clause, that at the same point of time at which the notice was given there should be given to the employee information as to the amount of severance pay to which he was entitled. This suggestion was based on the very solid ground that it is at that point of time that the employee is particularly interested in the amount of severance pay he will get. Indeed, it is not until he is declared redundant that any right to receive severance pay will arise.
The Minister was then good enough to say, not only that, in general terms, he was in favour of some redundancy scheme providing for severance payment—in principle, although not in any particular detail—but that he would consider the matter if the new Clause was withdrawn. The new Clause was withdrawn so that consideration could take place, and the Parliamentary Secretary has been courteous enough to address a letter to me, for which I am very grateful, explaining why it was not thought right for the Government to introduce the same new Clause, or words having the same effect. I do not want to embarrass the hon. Gentleman, but I share his view that the matter could have been dealt with even more efficiently than we dealt with it in the Standing Committee, but before receipt of his letter we had put down this Amendment.
Although an Amendment to deal with this matter at a point of time when notice is given is a good idea, an even better idea is to deal with it right at the start when a man is employed. Therefore, if when a man is employed one of the particulars referring to his employment which is to be notified under the Clause we are now discussing is one dealing 1170 with severance pay, it means that from the point of time when those particulars are reduced to writing there is complete clarity about the terms of his employment and, in particular, the severance pay to which he is entitled.
The first idea was good. To do what is now proposed would be better, but the best idea of all is the one on the Order Paper, because it leaves complete flexibility to the Minister and leaves it to his discretion whether reference to severance pay is included or not in particulars of employment. We are discussing an Amendment to subsection (14) by which the Minister has power by order to provide for additional particulars to be included in the statement to which the Clause refers. These additional particulars might or might not include severance pay. I am suggesting that they would, once we have moved forward to that stage.
There might be difficulty in including severance pay at present, because we all know that only a very small proportion of firms make severance payments. Although it is a good thing to draw attention to the fact that severance pay is a matter to be considered, we do not want to put those who have severance pay schemes at a possible disadvantage compared with those who have no such scheme.
The whole justification for our Amendment in this form is that there is no scheme for severance pay at the moment, but we hope very much that in the autumn the Government will be introducing legislation to that effect and that shortly there will be one. We say this because very senior Ministers—the Chancellor of the Exchequer and the Minister of Labour—have undertaken that this will be the case. Speeches have been made making it quite clear that legislation is coming. N.E.D.C. has reported for the second time, and its second Report makes even clearer than its first the need for some kind of redundancy scheme involving severance pay.
I want the Government to realise the way informed public opinion is moving in favour of this. Because this matter is being considered by representatives of employers and the T.U.C., I mention that employers have shown in one instance how conscious they are of the need for 1171 proper severance pay arrangements. I referred in Committee to the outrageous case—and I repeat that it was outrageous—where in a firm which I did not mention, and I am glad that I did not, four foremen and one staff inspector who had been with their employers for periods varying between 37 years and 41 years, the minimum being 37, were given notice at 10.30 on a Friday morning which expired at 4.30 p.m. that day. Their ages were between 56 and 63 and their services, not as workmen but as foremen on the staff, extended to over 20 years each.
These men were given six hours' notice and four weeks' wages in lieu of notice, and this in conflict with an arrangement which had been made with trade union representatives that redundancy would be the subject of discussion and consultation first, quite apart from the question of any redundancy pay. I am glad to say that the employers' association—not the employers—has recognised that this was such a regrettable occurrence that out of its own funds it has made satisfactory payments by way of compensation or severance pay, notwithstanding that the funds have been provided by the association and not by the employers themselves. I repeat that it is very satisfactory to note that the consciences of employers are moving a long way towards acceptance of responsibility to provide severance pay when redundancy arises.
As for the trade unions, it is right that I should acknowledge the support which my hon. Friend the Member for Southwark (Mr. Gunter) has given to this matter with which he has associated his name very gladly, and also my hon. Friend the Member for East Ham, North (Mr. Prentice). It is right to point out that this is an Amendment which is being moved with the support of the Front Bench and all hon. Members on the back benches on this side of the House whether or not they are members of a trade union. The Government sometimes need a little encouragement. I wish therefore to encourage them to recognise that whatever slight difficulties there may be in negotiations in different places we do not speak for different places but for the House of Commons.
All Opposition Members are agreed that there should be a redundancy scheme and that there should be severance pay. 1172 I might even draw the attention of the Parliamentary Secretary to the fact that the tie which I am privileged to be wearing at the moment is not an Eton tie or a Guards tie. It is not even a Penrith Grammar School tie. It is the tie of the trade union to which I happen to belong, and every Member who signed the Private Member's Bill which I sought leave to introduce was also a member of that trade union. I want to make the point, therefore, that not only has opinion moved very strongly so far as employers are concerned but very strongly indeed so far as trade union members also are concerned.
As I say, therefore, the likelihood is that there will be legislation in the autumn providing for severance pay and that there will be in that legislation references to taxation. I say that because the Chancellor of the Exchequer has stated from the Government Front Bench that he is giving consideration to the question of taxation. This is a very relevant consideration because at the moment, as most people know, the way to receive severance pay without paying tax on it is to receive it ex gratia—that is to say, not to be entitled to receive it. Once one receives it as of right, one pays Income Tax on it. When one receives it not as a matter of right but by way of grace, one does not pay Income Tax on it. This is a ridiculous situation when one wants to provide that everybody should receive severance pay. Therefore, this is a matter which the Chancellor will have to discuss.
I quite realise that the position being as it is, one of change, and that taxation arguments weigh against departing from the ex gratia principle for the time being, it would be less than appropriate to suggest an Amendment which compelled at the present moment a notification, on the statement to be included under this Clause, of the amount of severance pay due. But that does not weigh at all against the argument, which I suggest is an overwhelming argument, namely, that the Government should have power in this subsection to add to the particulars when it is relevant and appropriate.
Having made clear that we are adding to the Government's powers and leaving it to their discretion, and in view of the 1173 powerful statements which have been made in support of severance pay, we feel sure that this is an Amendment they will wish to accept and that they will wish to avail themselves of severance powers in the months ahead.
§ Mr. Whitelaw
The first thing that one must recognise is that the hon. Member for Gloucester (Mr. Diamond) has been a pioneer in this subject. I think he is rewarded now by finding how many people are coming along, some behind him and some beside him, but, at any rate, all going in his direction. He is entitled to take credit for that.
The hon. Gentleman also, as always, has argued his case extremely persuasively. As he rightly said, these Amendments take up a point which was under discussion in Committee. The suggestion made in Committee was that an employer giving notice to an employee who has qualified for rights under Clause 1 should at the same time have to give him a statement of the kind of severance pay that would be made. My right hon. Friend undertook to consider the suggestion without commitment.
I think it only right and courteous to the hon. Gentleman to explain briefly why my right hon. Friend decided, on consideration, not to put the suggestion into effect. Indeed, I felt it right to write to the hon. Member on these lines before the Report stage. Severance payments are at the moment—we have to face the position as it stands today—made by a minority of progressive employers. Those payments are normally on an ex gratia basis and, as the hon. Member says, under our tax law this benefits the employee as they are not taxable. It seems inescapable that the requirement to provide a statement of severance pay to be made would have to be enforceable by some penal sanction for failure to comply. It seemed wrong to my right hon. Friend that progressive employers should be subject to penalties for failing to provide a written statement about a payment which they were making voluntarily.
The Amendment departs from that basis. By it, the hon. Gentleman seeks to have stated expressly that an order under Clause 4(14) may add to the list of particulars to be given in written statements, particulars of the amount of sever- 1174 ance pay an employer would be making. The Amendment in Clause 6, which we are discussing at the same time, would add a definition of severance pay to Clause 6 and it is clear from this that both contractual and ex gratia payments are meant to be included.
One must consider whether it would be right at this moment—I emphasise the words "at this moment"—to put this provision into the Bill. It is harmless to say that contractual terms relating to severance pay may be added to the list provided for under Clause 4(2), but, since it is already absolutely clear that orders under Clause 4(14) can cover these, there is, in fact, no need to say so. There can be no doubt about the legal position in that respect.
Moreover, it might be undesirable to say that particulars of ex gratia payments should be included in written statements under Clause 4. Clause 4(1) and (2) make perfectly clear that the particulars to be given in written statements are particulars of the terms of employment. Ex gratia benefits are by definition not part of the terms of employment. There is, therefore, no place for bringing them in under Clause 4. Clearly, there is a problem here. We must remember, also, that there are penal sanctions in Clause 4. It would be hard to justify applying them to an employer who failed to give written information about a payment he was ready to make completely voluntarily and not in fulfilment of an undertaking. There is thus a real problem in doing what, on the face of it and in furtherance of the hon. Gentleman's objective, I recognise to be desirable.
My conclusion is that, at this stage, it would be wrong to adopt either of these Amendments. The House knows that the Government are examining urgently the whole question of provision for redundancy. We shall certainly bear in mind, in the light of developments, whether it would be useful to add an item concerning provision for redundancy to the list of written particulars to be given under Clause 4 or to meet in some other way the need to ensure that workers are given a proper understanding of any benefits to which they may be entitled.
As the hon. Gentleman knows, we have power to add such particulars should it be considered desirable. I suggest that the right moment to decide is when we 1175 know the exact nature of the sort of provision which will be put forward. The hon. Gentleman says that everyone agrees on the need for a provision. That is undoubtedly true. He appreciates, also, I am sure, that that is, at the moment, as far as the agreement goes. Very properly, on a complex matter, there is considerable divergence of opinion about the right sort of provision which should be made. I suggest, therefore, that we should wait and see what will be done, bearing in mind that we have power under Clause 4(14) to add the terms should we, at a later stage, decide that it was desirable.
§ Mr. Diamond
Is the hon. Gentleman satisfied that the proposed Amendment refers to ex gratia payments as well as to payments which can be enforced? It refers tothe amount of the severance payment to be made by the employer.It is "to be made". I am no lawyer, and I am asking the question. Is the hon. Gentleman quite sure that that means more than the payment literally to be made, which may be enforced, and that an ex gratia payment, which by definition is one which need not be made at all, is not excluded by the wording of the Amendment itself?
§ Mr. Whitelaw
In these matters, I hesitate ever to say that I am sure about anything. I must, however, call the hon. Member's attention to the Amendment in Clause 6, page 7, line 10, which states:'"severance payment' means a payment, whether contractual or not".Does not that mean that if it is not contractual it is an ex gratia payment? If that is so, is not an ex gratia payment therefore brought within the ambit of the Amendments? Although I cannot be absolutely sure, there is a likelihood that those words bring it within the ambit. Therefore, I consider it right to take the attitude which I have taken to the two Amendments.
§ Amendment negatived.