§ (1) The provisions of this section shall have effect where, after an employer has given notice to an employee to terminate his contract of employment (in this section referred to as a "notice of termination")—
- (a) the employee begins to take part in a strike of employees of the employer, and
- (b) the employer serves on him a notice in writing (in this section referred to as a "notice of extension") requesting him to
1645 agree to extend the contract of employment beyond the time of expiry by an additional period comprising as many available days as the number of working days lost by striking (in this section referred to as "the proposed period of extension").
§ (2) A notice of extension shall indicate the reasons for which the employer makes the request contained in the notice, and shall state that unless either—
- (a) the employee complies with the request, or
- (b) the employer is satisfied that, in consequence of sickness, injury or otherwise, he is unable to comply with it, or that (not-withstanding that he is able to comply with it) in the circumstances it is reasonable for him not to do so.
§ (3) For the purposes of this section an employee shall be taken to comply with the request contained in a notice of extension if, but only if, on each available day within the proposed period of extension, he attends at his proper or usual place of work and is ready and willing to work, whether he has signified his agreement to the request in any other way or not.
§ (4) Where an employee on whom a notice of extension has been served—
- (a) complies with the request contained in the notice, or
- (b) does not comply with it, but attends at his proper or usual place of work and is ready and willing to work on one or more (but not all) of the available days within the proposed period of extension.
§ (5) Subject to the next following subsection, if an employee on whom a notice of extension is served in pursuance of subsection (1) of this section does not comply with the request contained in the notice, he shall not be entitled to a redundancy payment by reason of the dismissal effected by the notice of termination, unless the employer agrees to pay such a payment to him notwithstanding that the request has not been complied with.
§ (6) Where a notice of extension has been served, and on a reference to a tribunal it appears to the tribunal that the employee has not complied with the request contained in 1646 the notice and the employer has not agreed to pay a redundancy payment in respect of the dismissal in question, but that the employee was unable to comply with the request, or it was reasonable for him not to comply with it, as mentioned in subsection (2)(b) of this section, the tribunal may determine that the employer shall be liable to pay to the employee—
- (a) the whole of any redundancy payment to which the employee would have been entitled apart from the last preceding sub-subsection, or
- (b) such part of any such redundancy payment as the tribunal thinks fit.
§ (7) The service of a notice of extension, and any extension, by virtue of subsection (4) of this section, of the period specified in a notice of termination,—
- (a) shall not affect any right either of the employer or of the employee to terminate the contract of employment (whether before, at or after the time of expiry) by a further notice or without notice, and
- (b) shall not affect the operation of Part I of this Act in relation to any such termination of the contract of employment.
§ (8) In this section any reference to the number of working days lost by striking is a reference to the number of working days in the period beginning with the date of service of the notice of termination and ending with the time of expiry which are days on which the employee in question takes part in a strike of employees of the employer.
§ (9) In this section "time of expiry", in relation to a notice of termination, means the time at which the notice would expire apart from this section, "working day", in relation to an employee, means a day on which, in accordance with his contract of employment, he is normally required to work, "available day", in relation to an employee, means a working day beginning at or after the time of expiry which is a day on which he is not taking part in a strike of employees of the employer, and "available day within the proposed period of extension" means an available day which begins before the end of that period.—[Mr. Thornton.]
§ Brought up, and read the First time.
§ 7.1 p.m.
§ The Joint Parliamentary Secretary to the Ministry of Labour (Mr. Ernest Thornton)I beg to move, That the Clause be read a Second time.
I think that it would be convenient, Mr. Speaker, if, with this new Clause, we discussed Amendment No. 71 and Amendment No. 74, both to Clause 40, and Amendment No. 79, to Clause 49.
§ Mr. SpeakerIf the House so desires. So be it.
§ Mr. ThorntonThe new Clause fulfils an undertaking which I gave in Committee and introduces a provision which 1647 both sides of the Committee thought desirable. The loophole in the Bill which the new Clause removes was that previously, under Clause 10(1), it would have been possible for workers to go on strike as soon as they received notice, stay on strike until the expiry of their notice and still collect their redundancy payments. It was generally accepted in Committee that there should be some safeguard for the employer. The employer, for instance, might have to finish off work on a certain order, and it was felt that in such circumstances Clause 10(1) might operate very unfairly against him.
Hon. Members opposite suggested that an employer should be able to extend the original notice of termination in such circumstances by as many days as the worker had spent on strike, and the right hon. Member for Grantham (Mr. Godber) suggested a form of words which might be considered. My right hon. Friend has considered the form of words suggested by the right hon. Gentleman and we have embodied this basic idea of an extension of the notice in the Clause.
We believe, however, that it would be going too far to give an employer power to extend the notice unconditionally and unilaterally. There might be circumstances where it was reasonable for the worker to refuse to return to work beyond the period of the original notice. For instance, on the strength of the original notice a worker may have arranged to sell his house and move to another area. It would also be a serious departure from the existing legal position to empower an employer to suspend a notice unilaterally. The new Clause, therefore, provides that the employer may request a worker's agreement to extend the period of notice by the number of days lost through the strike action. Only if the worker unreasonably refuses to agree to this request does he lose his entitlement to redundancy payment.
I should like to outline the way in which the new Clause works. In order to comply with the employers' request for an extension of notice the worker must report for work and be ready and willing to work on as many days after the expiry of the original notice as had been lost through strike during the period of that original notice.
1648 By virtue of subsection (8) it is immaterial whether there has been only one strike during that period, or more than one; a single notice of extension by the employer will suffice. On every day when the worker reports for work, as requested in the notice of extension, subsection (4) provides that the contract of employment shall be extended accordingly, so that contractual relations between the employer and the worker are just the same as during a normal period of notice.
Subsection (5) provides that the worker who does not comply with the employer's request, that is, either does not report back for work at all or does not report for the required number of days, shall not be entitled to payment unless the employer agrees to pay him notwithstanding his non-compliance. But, by subsection (6), the employee may appeal to a tribunal if the employer does not agree to pay him. If the tribunal finds that the worker was unable to comply—for example, because he was sick, or because it was otherwise reasonable for him not to comply, as in the example I gave a few moments ago, in which the man had sold his house and had had to move to a new district—the tribunal may award the employee part of the redundancy payment, or the whole of it, or none at all. This is a reasonable and necessary safeguard.
One would hope that the situation to which the new Clause relates will not arise very often. But I suggest that this procedure for serving a notice of extension is a necessary and entirely reasonable safeguard and that it adequately meets the problem which we all agree exists under the terms of the Bill as it stands.
§ Mr. Ronald Bell (Buckinghamshire, South)Can the Minister elucidate one point? At the moment, if the employee who is dismissed loses eight days, say, through a strike, and then, in accordance with one of these notices, turns up and is available for work on seven days but not on the eighth, and has not a reasonable excuse for not being there on the eighth, it seems to me that that case cannot even go to the tribunal. There cannot even be a partial allowance of the redundancy payment; the worker loses the lot. Perhaps that is right, but am I right in that understanding?
§ Mr. ThorntonI am grateful to the hon. Member for giving me an indication, otherwise I might not have been able to answer the question. As I understand it, the position is covered by subsection (3), which provides that an employee complies with the terms of the notice of extension
only if, on each available day within the proposed period of extension, he attends at his proper or usual place of work.Subsection (4,b) merely maintains the contractual relationship between the employer and the employee. That is my advice. Subsection (5) makes it quite clear that the worker must attend upon every day in order to be entitled to the redundancy payment. If he does not attend every day he is disentitled, and his only recourse then is through the tribunal. I hope that what I have said clears up the point in question.
§ Mr. J. B. Godber (Grantham)We are grateful to the hon. Member for explaining the new Clause. We appreciate the reason why his right hon. Friend cannot be here at the beginning of our discussions. We know the difficult problems confronting him. We wish him well in dealing with those, and hope to see him back with us before we have completed our deliberations tonight. How long that will take we do not know, but there is a great deal in these new Clauses, and this one is an indication of one of the difficulties which confronted us in our earlier proceedings.
It may seem somewhat churlish to make criticisms like that now, because the Government have tried to meet us on a number of these issues. They have seen the error of their ways in regard to some of the bad drafting in the Bill and that is the reason why we have this massive array of new Clauses and Amendments. However, if we have been able to put them on the right lines, we are very happy.
This new Clause, as the hon. Gentleman said, follows up an undertaking given in Committee and an important point is now covered. It is true that the Government were not able to accept my suggested form of words. My form was much shorter than the form of the Parliamentary draftsman, but that is normal in these matters. I have tried to follow the explanations which the hon. 1650 Gentleman gave of this new Clause and particularly in relation to the point raised by my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell). In continuation of the point which my hon. Friend raised, I am not certain that the explanation which the hon. Gentleman gave covers it, in that, if a worker failed just for one day to turn up for the additional time allowed to him, he may be debarred from consideration even by the tribunal for redundancy payments. This may apply if he fell outside any of the conditions laid down in the new Clause.
It is for consideration whether the Government would like to look at this between now and the consideration of the Bill in another place, to see whether there ought to be some slight amendment here to take account of the position of a worker who fails in this way to qualify and whether there ought to be more opportunity for a tribunal to determine the case. The hon. Gentleman would agree—
§ Mr. ThorntonI am advised that if, in the case the hon. Gentleman referred to, a man fulfilled his obligation, agreed to the request for the benefits of extension and attended every day but one after the strike for the number of days which he was on strike, he would have recourse to the tribunal. Under the terms of the Clause, he would certainly, in those circumstances, get a favourable award from the tribunal.
§ Mr. GodberI am glad to have the assurance which the hon. Gentleman gives me. My hon. Friend the Member for Buckinghamshire, South, who understands the wording of these things better than I, takes the view that a man would be penalised unless he could show that it was reasonable and proper for him to be away. I suggest to the Parliamentary Secretary that he might check on this to make sure that it is adequately covered. The general wish of hon. Members, I am sure, would be that the tribunal should decide in these cases.
We took the view all along that if a strike took place it was right and proper that a man should work out his terminal of days after the strike was over. The Government have met us on this. We do not want to pursue this further so that the man is penalised over some petty 1651 matter. I think that the House would agree on this. I hope that the Government will check on this point. Subject to that, I welcome the new Clause.
§ Mr. ThorntonI give the undertaking that we will look at this again. I cannot let pass unchallenged the strictures which the right hon. Gentleman placed on us for producing a badly drafted Bill. We are dealing here with matters related to the Contracts of Employment Act; we are breaking new ground in industrial legislation and establishing a new relationship between employer and worker on a financial basis. I have gone to the trouble of finding out what happened when the Contracts of Employment Act was debated. It was a 10-Clause Bill with two Schedules. This is a 60-Clause Bill with several Schedules. The previous Government put down 30 Government Amendments, covering nine pages. If we had equalled that record proportionately—we must agree that this is a much more complex problem with which to deal, a central problem of redundancy payments, than was the Contracts of Employment Act—we should have run to about 60 pages of Amendments, about 180 Amendments, compared with the 100 which we have. Our average performance bears very good comparison with that of the party opposite when they were in Government.
§ Mr. Ronald BellDoes not the hon. Gentleman's arithmetic proceed from a false premise? He has called this a 60-Clause Bill. It started out as a 47-Clause Bill and the Government have added 13 Clauses.
§ 7.15 p.m.
§ Mr. Leslie Hale (Oldham, West)I rise, with my customary diffidence, to intervene in this duologue. I was disarmed by the presence at the Dispatch Box of my hon. Friend the Joint Parliamentary Secretary, because I was thinking of saying something about the interests of cotton workers in this matter. The report of the Card Loom Association for the last week or two discloses a further diminution in employment of over 1,000, mostly, according to the report, people of long service. Once again it looks as if legislation will be passed too late for the principal sufferers in my division to get any benefit. My hon. Friend will 1652 recall what happened to cotton workers' compensation. I realise that, in this Clause, the Parliamentary draftsmen have sought, in their mysterious way, to try to deal with what one would have thought was a fairly simple point. I should have dealt with it in the old tradition of our Lord, by saying, "Let justice be done".
This will be taken to a great tribunal. I remember vaguely from an alleged biography of Lord Goddard—an excellent book but not much of a biography of Lord Goddard—a reference to Lord Goddard being called upon to consider an amendment of the Control of Tins Cans Kegs Drums and Packaging Pails (No. 10) Order 1943, amending the Control of Tins Cans Kegs Drums and Packaging Pails (No. 9) Order 1943, which amended the Control of Tins Cans Kegs Drums and Packaging Pails (No. 8) Order 1942, and so on. His Lordship expressed himself forthrightly—I am sure judicially—about this, because the explanatory note of the Order meant that tins can now be used for enclosing amounts of tobacco up to 2 ozs.
There are 73 lines in this Clause. With his experience of Lancashire, my hon. Friend will agree that Lancashire is a rather special place. What is more, Lancashire put this Government in office, and, at the moment, is not very happy—[Interruption.] The time has come when one must speak plainly. If I spoke as plainly as I should like, I might get myself beyond the ambit of this limited discussion. If I say to a constituent of mine—we all know what it means—"You are one of the chaps who has notice and although your pals are on strike and you want to be loyal, they will understand and the trade union will understand that, in order to protect your right to redundancy compensation, you must, whatever your wishes, present yourself for work on the day following the expiry of your notice and go through this claptrap day by day until the strike ends. The union will understand"—
§ Mr. ThorntonI think that my hon. Friend has misunderstood the purpose of the Clause. It is an extension of the notice for as long as the strike continues and the worker will be required to attend at work after the strike has finished and to work through the period of notice, including the days he was on strike.
§ Mr. HaleBut he has had his notice. I understand the problem with which we are trying to deal. I know that it is a problem. I think it much more simple to say, or, if one has a tribunal which one can trust, for it to say, "Let justice be done." We know that there are legal snags here—but 73 lines in one Clause! I know that the trade unions will master it and devise the forms and will be able to advise the workers, but if a worker came to me from Oldham with its background and its reputation and I said that he had to go through all this, he would say, "Mr. Hale, it is not honest to have this sort of postponement of obligations, to have this suspension. I wish I had not to do it." I expect that he would do it, but it is a lamentable sort of contrivance, even if it were necessary.
We are really very concerned about the position in Oldham. I am still waiting to know whether anything is to be done about byssinosis, but to pursue that matter now would be out of order. However, while waiting for that, I propose to call attention to the situation in Oldham and to say that the time has come when something should be done for my constituents as well as for the farmers.
I am having difficulties with the aircraft industry, with Ferranti's, with the cotton industry and with people who are still waiting to get mortgages. If the House is to turn down my byssinosis Bill as well, I shall have to take the advice of my psychiatrist, who has told me, in dealing with my perpetual insomnia, that I should use the long nights in this place in the exercise of some useful activity. I shall try to get back and constitute myself an elder statesman and give the benefit of my advice to the House more frequently.
§ Question put and agreed to.
§ Clause read a Second time and added to the Bill.