RIGHTS OF BETTING WORKERS AS RESPECTS SUNDAY WORKING (Hansard, 10 May 1994)

HC Deb 10 May 1994 vol 243 cc163-4 163

§ General interpretation 1.—(1) In this Schedule, except where a contrary intention appears—

'the 1978 Act' means the Employment Protection (Consolidation) Act 1978,
'betting office' means a licensed betting office within the meaning of this Act,
'betting worker' means an employee who, under his contract of employment, is required to work in England and Wales at a track for a bookmaker or totalisator operator or in a betting office on a day on which betting transactions are effected at that track by or on behalf of that bookmaker or totalisator operator or at that betting office,
'bookmaker' has the meaning given in section 55(1) of this Act,
'the commencement date' means the day on which this Schedule comes into force,
'dismissal' has the same meaning as in Part V of the 1978 Act,
'notice period', in relation to an opting-out notice,has the meaning given by paragraph 6 below,
'opted-out', in relation to a betting worker, shall be construed in accordance with paragraph 5 below, 'opting-in notice' has the meaning given by paragraph 3(2) below,
'opting-out notice' has the meaning given by paragraph 4(3) below,
'protected', in relation to a betting worker, shall be construed in accordance with paragraphs 2 and 3 below,
'totalisator operator' means the Totalisator Board or any other person authorised to conduct pool betting business within the meaning of this Act,
'track' has the meaning given in section 55(1) of this Act.

(2) Subject to sub-paragraph (3) below, the following provisions of the 1978 Act— section 151(1) and (2) (computation of period of continuous employment), and section 153 (general interpretation), shall have effect for the purposes of this Schedule as they have effect for the purposes of that Act. (3) For the purposes of this Schedule, section 151(2) of the 1978 Act shall have effect with the omission of the words from 'but' onwards and Schedule 13 to that Act shall have effect with the following modifications—

(a) in paragraph 1 for the words 'paragraphs 3 to 12' there shall be substituted 'paragraph 4 or paragraphs 9 to 12',
(b) paragraph 3 and paragraphs 5 to 8 shall be omitted, and
(c) in paragraph 4 the words 'which normally involves employment for sixteen hours or more weekly' shall be omitted.

(4) Where section 56 of the 1978 Act (failure to permit women to return to work after childbirth treated as dismissal) applies to an employee who was employed as a betting worker under her contract of employment on the last day of her maternity leave period, she shall be treated for the purposes of this Schedule as if she had been employed as a betting worker on the day with effect from which she is treated as dismissed under that section. Meaning of 'protected betting worker' 2.—(1) Subject to paragraph 3 below, a betting worker is to be regarded for the purposes of this Schedule as 'protected' if, and only if—

(a) on the day before the commencement date, he was employed as a betting worker,
(b) on that day, he was not employed to work only on Sunday,
(c) he has been continuously employed during the period beginning with that day and ending with the appropriate date, and
(d) throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a betting worker.

(2) In sub-paragraph (1)(c) above 'the appropriate date' means—

(a) in relation to paragraphs 7 and 8 below, the effective date of termination,
(b) in relation to paragraph 10 below, the date of the act or failure to act,
(c) in relation to sub-paragraph (2) or (3) of paragraph 12 below, the day on which the agreement is entered into,
(d) in relation to sub-paragraph (4) of that paragraph, the day on which the employee returns to work,
(e) in relation to paragraph 14 below, any time in relation to which the contract is to be enforced. And
(f) in relation to paragraph 15 below, the end of the period in respect of which the remuneration is paid or the benefit accrues.

(3) For the purposes of sub-paragraph (2)(a) above, 'the effective date of termination', in any case falling within paragraph 1(4) above, means the day with effect from which the employee is treated by section 56 of the 1978 Act as being dismissed. (4) For the purposes of sub-paragraph (2)(b) above— 165

(a) where an act extends over a period, the "date of the act" means the first day of the period, and
(b) a deliberate failure to act shall be treated as done when it was decided on,

and in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. (5) Where on the day before the commencement date an employee's relations with his employer have ceased to be governed by a contract of employment, he shall be regarded as satisfying the conditions in sub-paragraph (1)(a) and (b) above if—

(a) that day falls in a week which counts as a period of employment with that employer under paragraph 9 or 10 of Schedule 13 to the I 978 Act (absence from work because of sickness, pregnancy etc.) and
(b) on the last day before the commencement date on which his relations with his employer were governed by a contract of employment, the employee was a betting worker and was not employed to work only on Sunday.

3.—(1) A betting worker is not a protected betting worker if—

(a) on or after the commencement date, he has given his employer an opting-in notice, and
(b) after giving that notice, he has expressly agreed with his employer to work on Sunday or on a particular Sunday.

(2) In this Schedule "opting-in notice" means a written notice, signed and dated by the betting worker, in which the betting worker expressly states that he wishes to work on Sunday or that he does not object to Sunday working. Notice of objection to Sunday working 4.—(1) This paragraph applies to any betting worker who, under his contract of employment—

(a) is or may be required to work on Sunday (whether or not as a result of previously giving an opting-in notice), but
(b) is not employed to work only on Sunday.

(2) A betting worker to whom this paragraph applies may at any time give his employer written notice, signed and dated by the betting worker, to the effect that the betting worker objects to Sunday working. (3) In this Schedule 'opting-out notice' means a notice given under sub-paragraph (2) above by a betting worker to whom this paragraph applies. Meaning of 'opted-out betting worker' 5.—(1) Subject to sub-paragraph (5) below, a betting worker is to be regarded for the purposes of this Schedule as 'opted-out' if, and only if—

(a) he has given his employer an opting-out notice,
(b) he has been continuously employed during the period beginning with the day on which the notice was given and ending with the appropriate date, and
(c) throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a betting worker.

(2) In sub-paragraph (1) above 'the appropriate date' means—

(a) in relation to paragraphs 7 and 8 below, the effective date of termination,
(b) in relation to paragraph 10 below, the date of the act or failure to act,
(c) in relation to sub-paragraph (2) or (3) of paragraph 13 below, the day on which the agreement is entered into, and
(d) in relation to sub-paragraph (4) of that paragraph, the day on which the employee returns to work.

(3) For the purposes of sub-paragraph (2)(a) above, 'the effective date of termination', in any case falling 166 within paragraph 1(4) above, means the day with effect from which the employee is treated by section 56 of the 1978 Act as being dismissed. (4) For the purposes of sub-paragraph (2)(b) above—

(a) where an act extends over a period, the 'date of the Act' means the first day of the period, and
(b) a deliberate failure to act shall be treated as done when it was decided on,

and in the absence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. (5) A betting worker is not an opted-out betting worker if—

(a) after giving the opting-out notice concerned, he has given his employer an opting-in notice, and
(b) after giving that opting-in notice, he has expressly agreed with his employer to work on Sunday or on a particular Sunday.

Meaning of 'notice period' 6. In this Schedule 'notice period', in relation to an opted-out betting worker, means, subject to paragraph 11(2) below, the period of three months beginning with the day on which the opting-out notice concerned was given. Right not to be dismissed for refusing Sunday work 7.—(1) Subject to sub-paragraph (2) below, the dismissal of, a protected or opted-out betting worker by his employer shall be regarded for the purposes of Part V of the 1978 Act as unfair if the reason for it (or, if more than one, the principal reason) was that the betting worker refused, or proposed to refuse, to work on Sunday or on a particular Sunday. (2) Sub-paragraph (1) above does not apply in relation to an opted-out betting worker where the reason (or principal reason) for the dismissal was that he refused, or proposed to refuse, to work on any Sunday or Sundays falling before the end of the notice period. (3) The dismissal of a betting worker by his employer shall be regarded for the purposes of Part V of the 1978 Act as unfair if the reason for it (or, if more than one, the principal reason) was that the betting worker gave, or proposed to give, an opting-out notice to the employer. (4) Section 142 of the 1978 Act (contracts for a fixed term) shall not exclude the application of section 54 of that Act (right of employee not to be unfairly dismissed) in relation to any dismissal which is unfair by virtue of sub-paragraph (1) or (3) above.— 8.—(1) Where the reason or principal reason for the dismissal of a protected or opted-out betting worker was that he was redundant, but it is shown—

(a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and
(b) that the reason (or, if more than one, the principal reason) for which he was selected for dismissal was that specified in paragraph 7(1) above,

then, for the purposes of Part V of the 1978 Act, the dismissal shall be regarded as unfair. (2) Sub-paragraph (1) above does not apply in relation to an opted-out betting worker where the reason (or principal reason) for which he was selected for dismissal was that specified in paragraph 7(2) above. (3) Where the reason or principal reason for the dismissal of a betting worker was that he was redundant, but it is shown—

(a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and
(b) that the reason (or, if more than one, the principal reason) for which he was selected for dismissal was that specified in paragraph 7(3) above,

then, for the purposes of Part V of the 1978 Act, the dismissal shall be regarded as unfair. Exclusion of section 64(1) of Employment Protection (Consolidation) Act 1978 9. Section 54 of the 1978 Act (right of employee not to be unfairly dismissed) shall apply to a dismissal regarded as unfair by virtue of paragraph 7 or 8 above regardless of the period for which the employee has been employed and of his age; and accordingly section 64(1) of that Act (which provides a qualifying period and an upper age limit) shall not apply to such a dismissal. Right not to suffer detriment for refusing Sunday work 10.—(1) Subject to sub-paragraphs (2) and (4) below, a protected or opted-out betting worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the betting worker refused, or proposed to refuse, to work on Sunday or on a particular Sunday. (2) Sub-paragraph (1) above does not apply to anything done in relation to an opted-out betting worker on the grounds that he refused, or proposed to refuse, to work on any Sunday or Sundays falling before the end of the notice period. (3) Subject to sub-paragraph (4) below, a betting worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he gave, or proposed to give, an opting-out notice to his employer. (4) Sub-paragraphs (1) and (3) above do not apply where the detriment in question amounts to dismissal. (5) For the purposes of this paragraph a betting worker who does not work on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by

(a) any failure to pay remuneration in respect of betting work on a Sunday which he has done.
(b) any failure to provide him with any other benefit, where that failure results from the application, in relation to a Sunday on which the employee has not worked, of a contractual term under which the extent of that benefit varies according to the number of hours worked by the employee or the remuneration of the employee, or
(c) any failure to provide him with any work, remuneration or other benefit which by virtue of paragraph 14 or 15 below the employer is not obliged to provide.

(6) Where an employer offers to pay a sum specified in the offer to any one or more employees who are protected or opted-out betting workers or who, under their contracts of employment, are not obliged to work on Sunday, if they agree to work on Sunday or on a particular Sunday—

(a) and employee to whom the offer is not made is not to be regarded for the purposes of this paragraph as having been subjected to any detriment by any failure to make the offer to him or to pay him that sum, and
(b) an employee who does not accept the offer is not to be regarded for those purposes as having been subjected to any detriment by any failure to pay him that sum.

Employer's duty to give explanatory statement 11.—(1) Where a person becomes a betting worker to whom paragraph 4 above applies, his employer shall, before the end of the period of two months beginning with the day on which that person becomes such a betting worker, give him 'a written statement in the prescribed form. (2)If—

(a) an employer fails to comply with sub-paragraph (1) above in relation to any betting worker, and
(b) the betting worker, on giving the employer an opting-out notice, becomes an opted-out betting worker,

paragraph 6 above shall have effect, in relation to the betting office worker, with the substitute for 'three months' of 'one month'. (3) An employer shall not be regarded as failing to comply with sub-paragraph (1) above in any case where, before the end of the period referred to in that sub-paragraph, the betting worker has given him an opting-out notice. (4) Subject to sub-paragraph (5) below, the prescribed form is as follows—