HC Deb 09 February 1994 vol 237 cc367-72 '15a. Where an employer has available alternative work, an employee who has regularly worked on Sunday and subsequently gives notice of opting out has the right to be offered additional weekday hours.'.
Ms Ruddock

In putting these matters before the Committee, we are concerned specifically about endeavouring to maintain the vital voluntary principle that is attached to Sunday working, despite the way in which Conservative Members have just voted, because we believe that this principle is important and that premium payment is inherent in it. We seek, through the amendment, to ensure that where established employees who have been working on a Sunday and who, in many cases, have been in receipt of a premium payment seek to forgo Sunday work, they should not suffer any detriment in making that choice.

We believe that it is impossible freely to choose to give up Sunday working if, as a consequence, an employee will lose a substantial amount of income. We believe that, in many cases, an employer will have scope to enable the worker to make up his or her hours on other days of the week.

Threats to the voluntary principle result not just from employer pressure and employee intimidation—although we are all familiar with both and know that they are real and, sadly, could be widespread—but from sheer economic compulsion. More than three quarters of shopworkers—especially part-time employees—are women, and they are among the lowest-paid workers in the country. It is the pressure to gain some income that drives many people to work on Sunday.

If retail employees doing additional work on Sunday seek to give up that work, it is essential that the voluntary principle be underpinned through recognition of the need of the workers to maintain a certain standard of living.

Mr. Pike

I know of people who work voluntarily on Sunday but have been told clearly that, as the work pattern in their trade now involves a seven-day week, they will not have a full week's work if they do not work on Sunday. I assume that that is the type of vision that my hon. Friend is getting at in the amendment.

Ms Ruddock

I thank my hon. Friend for his intervention. He makes an important point.

If a worker has been engaged and is working on a Sunday, that worker is obviously benefiting from wages for Sundays, whether double or plain-time. If the voluntary principle enshrined in the Bill is to be meaningful, it is obvious to us that many workers will not feel able voluntarily to opt out of Sunday working unless they can find some other means of getting the additional income. Many employers will have the scope to offer workers alternative hours during weekdays.

Most people who have been working on Sundays will be valued workers. The amendment seeks to persuade employers that they deserve such consideration. We should, therefore, adopt the amendment so that they can have a real choice as to whether to work on Sundays.

In an earlier debate, the Minister suggested that there was no real comparison between the mechanism for opting in or out and a worker giving up his or her work. He said that opting, in or out of Sunday working was a much smaller decision. I do not wholly agree with him because, for most Sunday workers, opting out will be a major decision. Even with the voluntary principle, most shopworkers will not easily opt out, for the reason that we have expressed again and again in this debate—they are there for the money. That is why they will work and will not easily give up that work.

If employees are not to be put in the position where they have no choice, they must be able to seek alternative hours. That is the thrust of the amendments. I hope that the Minister will respond positively to them.

Mr. Pike

This is an important issue concerning the protection of workers' rights. I spoke at length on this issue in a previous debate on the Bill on the Floor of the House.

We all know that there are volunteers and volunteers. When I did my national service, on the first day after we reported at the Royal Marines training centre in Lympstone we were asked to step forward as volunteers. We all did so because we felt that we had to. Workers feel the same way.

Many workers will volunteer to work on Sundays because they desperately need the money and know that they will not be employed if they do not take that option. Some workers have come to me saying that, although they originally chose to work on a Sunday as a part of their working pattern, they no longer wished to do so but had been clearly told by their employers that they could not be provided with a full working week within the other six days without doing a number of hours on a Sunday. They were told that, unless they wished to reduce their working week—they were receiving premium payments, so there was no argument about that being paid—they could not change to working on a different day because the working pattern was already established for those days. At that stage, Sunday working no longer remains voluntary but becomes compulsory. The only way that employees can get out of it is to opt out and reduce the number of hours that they work.

My hon. Friend the Member for Lewisham, Deptford (Ms Ruddock) was right to move the amendment, because it seeks to protect people who want to work Sundays now but may want to change in future. They want genuine protection for their working hours and earnings. We all know that, unless such assurance, as in the amendment, is written in the Bill, it will be meaningless and workers will not get the protection to which I—like many others—believe they are entitled.

Mr. Alton

I have some sympathy with the amendment. If it were passed in some form, perhaps not as it is written on the amendment paper, it would protect workers who opt not to work on Sundays. If the spirit of the amendment were accepted, it would mean that they could substitute another day instead and shift their working hours around.

The problem is in amendment No. 55, which contains the words as far as reasonably practicable That clearly is a let-out measure. I should be interested to hear the Minister's view. I question how that could be enforced in law. It would allow an employer always to argue that it is not reasonably practicable for him to make such arrangements. Even if the amendment were accepted, it would not achieve what the hon. Members for Burnley (Mr. Pike) and for Lewisham, Deptford (Ms Ruddock) have argued for.

I hope that the Minister will assure us that, if the amendment does not achieve its objectives, he will at least accept the arguments that are being put tonight and look again at the principle, either on Report or in another place.

9.15 pm
Mr. Peter Lloyd

The hon. Gentleman is an optimist. I am afraid that, although I agree with some of his comments, I will not be able to give any encouragement that a similar amendment could meet those objections or that it would be right to do so. The amendments would ensure that shopworkers who have worked on Sundays but cease to do so are provided with additional weekday work to compensate them for the earnings that they would have made on Sunday or, in the case of amendment No. 39, if I follow it, for just the additional hours.

I do not see how that could be done without being unfair to employees who worked only on weekdays but who would also like to work some extra hours during the week. They would find ex-Sunday workers getting preference for any extra hours going and, if amendment No. 55 had been carried, getting those hours at double time, too. There would be no justice in ex-Sunday workers getting priority over weekday workers. I believe that it would be unfair to employers as well, who would have to pay for the extra hours worked during the week and employ somebody else to do the Sunday work that had been vacated. That would be a very large extra burden, pushing up costs sharply and reducing efficiency.

The hon. Members who put their names to amendment No. 55 have, like the hon. Member for Liverpool, Mossley Hill (Mr. Alton), at least partly recognised how unreasonable it is.

Ms Ruddock

rose—

Mr. Lloyd

The hon. Lady wants to tell me again that the amendment is reasonable.

Ms Ruddock

The Minister correctly anticipates what I am about to say. We introduced reasonableness to the amendment because we have recognised some of the things that he is saying. In promoting the amendment, we seek to encourage best practice among employers. We believe that there is scope for that and that many employers might voluntarily make such arrangements, recognising the worth of their workers. We are attempting to give a little strength to that idea.

Mr. Lloyd

Like the hon. Lady, I am always in favour of best practice. It is a question of what we should write into the law.

There is another difficulty, however, and here I return to what was said by the hon. Member for Mossley Hill. What does "reasonably practicable" mean? The hon. Member for Lewisham, Deptford (Ms Ruddock) has formed an idea that is very satisfactory in terms of guidance and codes of practice, but it is not necessarily satisfactory in terms of law. It is hard for an employer to know what is "reasonably practicable" in legal terms. That would be extremely difficult for an employee—who would have to take the matter to an industrial tribunal—to assess and it would be impossible for the tribunal to judge, unless it engaged in a management audit of a shop's manning arrangements and adjudicated accordingly.

I believe that, if amendment No. 55 is passed, no one will know where he or she is. People will not know whether a shop is acting within the law if it fails to find extra weekday hours for ex-Sunday workers. If amendment No. 39 is passed, an unfair and, in some cases, insupportable burden will be placed on employers, to the especial detriment of weekday workers who would like extra hours during the week.

Mr. Pike

I have often heard Ministers defend the words "reasonably practicable" in other contexts. It seems strange that the Minister of State is not prepared to accept that wording now.

Does the Minister not think it reasonable for an employee who now accepts Sunday working as a voluntary part of his working week to be given a first option to return to a working week involving the other six days if his circumstances change at some future date? Would not that constitute a fair extension of the voluntary principle involved in the legislation?

Mr. Lloyd

First, I am in favour of the use of the phrase "reasonably practicable" in legislation when it is "reasonably practicable" to use it. In these circumstances, I do not consider it practicable. Secondly, the question for most shopworkers who work full time during the week is whether, now that it is lawful to work on Sundays, they will do additional work on that day. I accept that the circumstances cited by the hon. Member for Burnley (Mr. Pike) could arise, but, under schedule 4, they would arise only if an individual shopworker chose to accept terms of that nature. An existing shopworker will start from scratch—that is, whatever was the agreement made on day one; a new worker will have to opt into not just the idea of Sunday work but the particular arrangements proposed by the employer.

Mr. Pike

Is the Minister saying that the existing shopworker has that option only once and cannot reverse his choice later?

Mr. Lloyd

Like anyone else, he will have the choice of reversing on three months' notice. Indeed, if the existing shopworker has not formally opted into Sunday work, he can continue to work on Sundays and stop at any time without notice. It is a complicated point but, if the hon. Gentleman reads the schedule carefully, he will find that the protections extend further than he seems to think.

The right to opt out is there for Sunday workers to use if their consciences or circumstances change. Employers should be under no obligation to make up the time that employees have freely chosen to give up. Of course, many employers will want, if they can, to find extra weekday time for valued Sunday workers who can no longer continue to work on Sundays. The larger employers will be better placed in that regard. I applaud such efforts and hope that they will be widespread, but I do not think it right to compel all employers to do the same in all circumstances. Although I see much merit in such action, I can envisage the legal difficulties correctly identified by the hon. Member for Mossley Hill.

Ms Ruddock

The Minister has completely missed the point. He says that a shopworker can freely choose to give up Sunday working. Our point is that many shopworkers may find themselves with critical problems that necessitate their giving up Sunday working, perhaps for the sake of family obligations. They may not be able to do so, however, for economic reasons. We therefore believe it right that when a worker has been working Sundays and is forced by circumstances to try to opt out, he should be able to go to his employer with a reasonable request to be given alternative weekday hours.

The Minister suggests that that is unfair to weekday workers, who may themselves want additional hours. We, however, are talking about workers who already have the hours and are possibly receiving premium payments for them. They may have to lose income, and that is why we propose the substitution of other hours. It is not an unfair principle: these people may incur financial loss—hence the reason for the amendment.

Arbitrary changes in hours of work, duties and even places of work are now commonplace. The employers certainly have the upper hand. They have even instituted zero-hours contracts, and various forms of casual and unprotected work are increasingly prevalent. We have heard plenty of testimony to that in these debates.

This was but a small attempt to give shopworkers a degree of control over their hours of work and how they are arranged. It was an attempt to redress the balance, which my colleagues and I believe has been tilting increasingly in favour of the employers. I regret the fact that the Minister has been unable to make a more positive response, but I hope that the employers will take note of what he has said about best practice and how it might be encouraged. That is very little for shopworkers to hope for, but it is clearly all they are going to get from the Government.

Amendment negatived.

Mr. Peter Lloyd

I beg to move amendment No. 57, in page 22, line 12, leave out from `employment)' to 'For' in line 18 and insert 'in subsection (3) (keeping of records)'.

The Second Deputy Chairman

With this it will be convenient to consider Government amendment No. 58.

Mr. Lloyd

These are technical amendments, reflecting the outcome of the vote on the choices held on the first day of the Committee of the whole House, before Christmas. They ensure that appropriate references in the Shops Act 1950 refer to the Bill rather than to the parts of that Act that this Bill repeals.

Amendment agreed to.

Amendment made: No. 58, in page 22, leave out line 21.—[Mr. Michael Brown.]

Schedule 4 agreed to.

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