FAILURE OE EMPLOYER TO ALLOW ACCESS TO RECORDS (Hansard, 28 July 1998)

§ Mr. Ian McCartney
I beg to move, That this House does agree with the Lords in the said amendment.
This is a technical amendment made on Third Reading in the other place to complete and improve the Bill. It came to our attention only at that late stage, for which I apologise, but such things are inevitable on occasion.
The amendment affects clause 11(1)(a), which provides a justified ground for complaint about access to records if the employer has failed to produce some or all of the relevant records in accordance with subsection (9) of section 10 above". Clause 10(9) sets deadlines for the time within which records must be produced. Failure by the employer to meet the requirement therefore provides ground for complaint.
Counsel has noted that subsection (8) is also a requirement-setting provision, stipulating the place where records must be produced. However, failure to produce records at one of the places specified is not currently included in clause 11(1)(a). The reference there is only to 264 subsection (9), not also to subsection (8). In other words, there is an omission because the Bill creates two requirements but provides a remedy against only one of them.
The amendment therefore adds a reference to clause 10(8); and I ask the House to support it.

§ Mr. Boswell
I read with some interest the debates in the other place on the keeping of records. In the spirit of the Minister's conciliatory remarks a moment ago, we recognise that he wishes to consult on the details and that there will be proper consultation on the record requirements themselves. We welcome that and hope that industry and, if necessary, hon. Members will participate in it.
One other point before I come to the specific amendment is a touch more critical, but we recognise the pressures under which Ministers and officials are working at this time of year. In preparing for today's debate, I noted a number of references in the other place to correspondence with my noble Friend Baroness Miller on certain technical aspects. That correspondence has not been vouchsafed to Conservative Members or to me, and I should be grateful if it were in due course.

§ Mr. McCartney
I offer my apologies to both the hon. Gentleman and the hon. Member for Eastleigh (Mr. Chidgey). I have always had a process of maintaining correspondence and meetings. It is an oversight, and I take responsibility for it. I shall ensure that copies of the correspondence are sent to the hon. Gentleman and that I respond to any additional item that he raises this evening to which I do not have an immediate answer.

§ Mr. Boswell
I readily respond with thanks to the Minister of State because he is, as ever in these matters, most generous and helpful.
We are dealing with the production of records and I have the impression that, even if the Minister does not have the style, he would rather like to join me in playing around at being an amateur lawyer. He explained the draftsman's thought process extremely eloquently. However, we should pause for a moment to ask whether there really is a failure to deliver the records at a particular place. The records must exist, unless they have been wilfully destroyed. The offence arises from the inability to deliver within a particular time the records to the worker who has requested them.
If there is a "failure of place"—the point that the tidy-minded draftsman has tried to pick up—and the records are not offered in the worker's place of work or any other reasonable place, or such place as may be agreed between the worker and the employer, the records will not have been produced at all. They exist, but they have not been made available. I do not argue that that provision should not be in the Bill, but perhaps the draftsman's first instincts were better than his second, because the important point is that the records should be practicably available to the worker within a reasonable time.
The fact that, for information, the Bill suggests a number of places where the records could be produced does not by itself create an offence because if they are not produced in one of those entirely sensible places, I doubt 265 whether they have been produced at all. Of course, they still exist, but records are of no use to a worker who wants to see them if they are sitting in somebody's filing cabinet or have been hidden behind the mantlepiece.
This is not a matter over which we should go to the stake. My instinct may be wrong, in which case there is no need to make a fuss about the matter. However, it is at least worth pausing to think about it.

§ Mr. Philip Hammond (Runnymede and Weybridge)
I, too, am delighted to see the Minister in his place. I awaited tonight's debate with trepidation in case he were not there because it would seem inappropriate if, after six months or so, we were to discuss the Bill without seeing his familiar face.
I find it surprising that, given the extensive work that was done in Committee, we have not discussed this point before. I heard what the Minister and my hon. Friend the Member for Daventry (Mr. Boswell) said. My hon. Friend referred to the possibility of records having been wilfully destroyed or concealed. Will the Minister assure us that, in dealing with a complaint under this clause, an employer could defend himself by pleading that the records had been inadvertently destroyed or were unavailable as a result of accidental destruction?

§ Mr. McCartney
I did not catch the hon. Gentleman's last question. Will he repeat it, so that I do not forget to answer it?

§ Mr. Hammond
I shall gladly repeat it. I should like to be reassured that, under the clause, it would be a defence that the records had been inadvertently destroyed as opposed to wilfully destroyed or concealed. My hon. Friend the Member for Daventry referred to the wilful destruction of records, but records could have been inadvertently destroyed, or destroyed by fire or some other form of misadventure.
Another point was discussed in Committee and I am disappointed that the Minister has not taken the opportunity of the Bill's consideration in another place to correct it. There is a lack of symmetry between the requirement on employers, and the need for some employees, to produce and keep records. To an extent, we are going over old ground, but this is an important point that is not in any sense intended to undermine the principles of the Bill. There will be occasions, especially in relation to piece work, on which the employer will be unable to defend himself against a claim that he has failed to pay the minimum wage unless the employee has kept appropriate records in his workplace, which may be his home.

§ Mr. Boswell
It is nice to have my hon. Friend back in our deliberations. Does he recall the sensitive issue of spouses who may disagree? The employer—the husband, typically—may be required to keep records, but a disaffected spouse may assert that such records have not been kept or that the hours worked in a family business were much longer than he is prepared to concede.

§ Mr. Hammond
My hon. Friend is absolutely right. As he knows, I have argued throughout consideration of 266 the Bill that, whatever else may be right or wrong, it is clearly wrong to bring businesses that are effectively husband-and-wife operations within its remit. That would bring the full force of the law into the everyday relationship between a husband and wife who operate a small business together.
My specific point to the Minister is that there is no requirement for employees to keep appropriate records. What defence would an employer have if he were faced with the claim that he had failed to pay the minimum wage in respect of the number of hours worked by a piece worker in his own home when producing a certain amount of work? How would such an employer prove that the claim was not valid if he had no power to require the employee to produce records of the hours that had been worked?

§ Mr. Bercow
My hon. Friend is making a powerful case. Given that many self-employed people keep and provide records to the people for whom they work as a condition of their payment, does he agree that there can be no reasonable objection under the Bill to requiring them to do precisely that in future?

§ Mr. Hammond
My hon. Friend is precisely right. It would not be at all onerous for employees to keep simple records, where appropriate. That would not be appropriate for an employee who clocks on when he arrives at the factory, does his day's work and goes home. In such circumstances, it is appropriate that the whole burden of record keeping falls on the employer, but it was common ground in Committee that the difficult cases will arise in situations other than the conventional employment situation in which work is done in the employer's workplace.

§ Mr. John Hayes (South Holland and The Deepings)
My hon. Friend's point is made more profound because flexible working—home work and distance work—is on the increase and likely to grow, not diminish. The traditional model of the workplace is not disappearing, but it is becoming less common.

§ Mr. Hammond
My hon. Friend is entirely correct. I am asking the Minister not to impose some additional and unreasonable burden on employees, but to say why he has not considered it appropriate, in suitable cases where it is relevant, to require employees to keep relevant records and to give employers the right to see those records so that they can defend themselves against claims.

§ Mr. Ian McCartney
I welcome the hon. Member for Runnymede and Weybridge (Mr. Hammond) to the debate. I understand that he has been promoted to the Front Bench since we debated the minimum wage in Committee, so attempting to hold me up for all those hours has worked well for him. I do not want to overexcite him by going through that process again, but I hope that he gets a further leg up the greasy pole. We are not really discussing the amendments, which are about plugging a little technical gap in the Bill. I must tell him that the Bill is clear—the employer has a duty to keep records.
The hon. Member for Daventry (Mr. Boswell) said that he and I might like to be amateur lawyers; indeed, many people may say that one of us, at least, has been a barrack-room lawyer on occasion—or even a Philadelphia 267 lawyer. It does not take a lawyer to get the point made by the hon. Member for Runnymede and Weybridge, and I cannot give any succour in that regard. It is a pretty weak excuse to say, "I inadvertently got drunk last night and drove the car home and smashed it up". Equally, it is a pretty weak excuse to say, "I inadvertently burnt all my records, and it is therefore impossible for me to establish whether I paid my home workers the national minimum wage". We cannot allow a coach and horses to be driven through the principle of employers' duty to maintain good records.

§ Mr.Boswell
Even if the Minister did not climb the greasy pole, we are glad to see him in his place.
The Minister, perhaps typically, chooses the delinquent employer as his example, but is there not an equally serious problem? I refer to the employer who acts in good faith, but whose records may have been destroyed. Surely the regulations must provide for a workable distinction between the two.

McCartney
No doubt genuine accidents happen. No doubt places are burnt down in such circumstances. I am sure that Inland Revenue representatives and VAT men are tearing their hair out every week when they visit premises that may have been inadvertently burnt down, or burnt down in entirely innocent circumstances—or, occasionally, even burnt down as a result of an attack. I am sure that such one-off incidents will be seen for what they are, but we are not talking about that; we are talking about compliance with a requirement for good record-keeping, which must be an employer's defence against any unfair, unacceptable or unsubstantiated allegation of non-payment.
The worker's right of access to records, and clauses 9, 10 and 11, are very important. The amendments are not about the principle of the clauses; they are technical.
In the Bill, we decided that the burden of proof should be on the employer. That is important, especially given the inability of low-paid workers—home workers, for instance—to establish a balanced arrangement. That was a principled decision by the Government, and it has been accepted in good faith by employers during our debates on the Bill. I therefore ask the House to accept the amendments, on the basis of their technical nature.