§ 6.38 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Carrington.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord AIREDALE in the Chair.]
§ THE FIRST LORD OF THE ADMIRALTY (LORD CARRINGTON) moved, after Clause 5, to insert the following new clause:
§ Power to vary number of weekly hours of employment necessary to qualify for rights
§ .—(1) The Minister shall have power by order to provide that this Act shall have effect—
- (a) as if for the reference to twenty-one hours in section 4(2), or
- (b) as if for each of the references to twenty-one hours in paragraphs 3 and 4 of Schedule 1 and paragraph 3(3) of Schedule 2,
§ (2) Orders under the foregoing subsection may specify different numbers of hours for the purposes of paragraphs (a) and (b), and an order under paragraph (b) shall affect the operation of Schedule 1 to this Act as respects periods before the order takes effect for the purposes of sections 1 and 2 of this Act, as well as respects later periods.
§ (3) An order under this section may contain such transitional and other supplemental and incidental provisions as appear to the Minister to be expedient and may be varied or revoked by a further order so made.
§ An order under this section shall be made by statutory instrument, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
§ The noble Lord said: The Bill applies only to employees who normally work for their employers 21 hours or more a week. As I said during the Second Reading debate, the intention is that the Bill should benefit those who depend on their employment for at least a substantial part of their livelihood and that inconsiderable and spare-time employments should be excluded. I imagine that your Lordships will agree with that principle. The line has been drawn at 21 hours a week because 21 hours represents half the normal working week in industry, and it seems reasonable to draw the line there. To raise the limit appreciably would exclude some employments of substance, and to lower it would let in others rather less important. I recognise that it is very much a matter of judgment as to where the line should be drawn, and when the Bill was discussed in another place the 21-hour dividing line as it applies to Clause 4 was challenged on more than one occasion. Some speakers said that it was set too high and some said it was set too low, and you can say, by and large, that confirms 21 hours as being about right.
§ At the conclusion of the discussion at the Report stage the Parliamentary Secretary said that the figure of 21 seemed about right at the present time, but that the Government would consider whether the Minister of Labour should have power to vary the figure as he saw how things were working out. Having considered this again, we have thought it 1528 would be right for the Minister to have these powers. Clause 5 of the Bill already enables the Minister to alter the scope of the exclusions from the Bill in the light of any developments. The new Clause now before your Lordships will similarly enable the Minister to alter the 21-hour limit so that in future, if there are many people who derive a substantial part of their livelihood from working less than 21 hours a week, they can be brought within the scope of the Bill.
§ The proposed powers will enable the Minister to reduce the number of hours below 21 but not to raise it above, and will also enable him to lower the limit of 21 hours a week separately for the requirements on written statements or the notice requirements of the Bill. It may be that it will be found desirable to fix the number of hours at different points for the two Parts of the Bill in the light of the experience we have of the working of the Bill.
§ Lastly, I should like to point out that orders under this new clause will be subject to an Affirmative Resolution of each House. The view was taken in another place that it was right for orders under Clause 5 to be subject to this procedure and so it seemed right that it should be so under this new clause. I beg to move.
§
Amendment moved—
Aster Clause 5, insert the said new clause.—(Lord Carrington.)
§ LORD LINDGRENI should like to express appreciation to the Government for giving consideration to the representations made to them in another place. I agree in that the number of cases affected will be comparatively small, but we can all think of types of employment in which people have a permanent employment over a period of years and do not work more than 21 hours a week. I can think immediately of office cleaners and others in this type of work. We appreciate the Amendment and we support it from this side of the House.
§ On Question, Amendment agreed to.
§ Clause 6 [Interpretation]:
§ LORD CARRINGTONThis is little more than a drafting Amendment. Its purpose is to remove any possible doubt whether the notice provisions of the Bill are to apply to contracts already existing when the Bill comes into operation 1529 Obviously, they must do so, and this Amendment is intended to clear up the position. I beg to move.
§
Amendment moved—
Page 7, line 5, after ("apply") insert ("in relation to any contract made before they come into force and").—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 7 and Clause 8 agreed to.
§ Schedule 1 agreed to.
§ Schedule 2 [Rights of employee in period of notice]:
§ LORD CARRINGTONhad given Notice of three Amendments to paragraph 1(1), the first being, after "and", to insert, "subject to the following subparagraph". The noble Lord said: I think it would be convenient to take the next three Amendments together. Paragraph 2 of Schedule 2 contains a guarantee of minimum pay during notice for employees who have "normal working hours", and paragraph 1(1) gives guidance for deciding whether an employee has normal working hours and also what those normal working hours are. It provides that any employee who receives overtime pay for working more than a fixed number of hours is to be regarded as having normal working hours, and, furthermore, that the fixed number of hours in question is to be regarded as the normal working hours. This provision is essential to give precision to what is meant by "normal working hours" in this Schedule, and in the great majority of cases it will work fairly and reasonably without any need of qualification.
When this Schedule was under consideration at Report stage in another place it was suggested that it failed to take sufficient account of overtime. At the conclusion of the discussion the Parliamentary Secretary undertook to consider whether any change should be made as regards overtime, though he drew a sharp distinction between cases where overtime is a regular and accepted feature of the job and cases where it is exceptional and optional, and pointed out that there was no case for including the latter.
The Government have considered the matter further, and it is suggested that there are cases where the provisions in 1530 paragraph 1(1) will not, in point of fact, work satisfactorily. This is because there are a number of employments where the employee receives overtime pay for work performed in hours which unquestionably form part of his normal working day. For example, a milk roundsman commonly works seven days a week, and this often includes a regular number of hours of overtime rates of pay. Another example would be an employee engaged, perhaps, in an engineering works under a contract with fixed regular hours of work at 45 hours, although the agreed standard hours in the industry would be 42, and he gets overtime pay for the three hours. The Amendments I am proposing to your Lordships will meet these rather exceptional cases which I have explained. I hope that my explanation will be agreeable and that you will accept these Amendments. I beg to move.
§
Amendment moved—
Page 11, line 7, after ("and") insert subject to the following sub-paragraph.—(Lord Carrington.)
§ LORD LINDGRENAgain, I have to express appreciation of the attention given to this matter by the Government. We shall be quite frank from this side of the House and say that overtime is a penalty, and we do not like it. But it is true that in many trades it is convenient, both to the employer and to the employee, that there should be what we call "rostered" turns which include overtime. That Amendment does cover the point and we are grateful for it.
§ On Question, Amendment agreed to.
§ LORD CARRINGTONThis Amendment is consequential. I beg to move.
§
Amendment moved—
Page 11, line 8, after first ("hours") insert ("(in this paragraph referred to as 'the number of hours without overtime')").—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONThis Amendment is again consequential. I beg to move.
§ Amendment moved—
§
Page 11, line 8, at end insert—
("(2) If in such a case—
that number or minimum number of hours (and not the number of hours without overtime) shall be the normal working hours.")—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONThis is a drafting Amendment. I beg to move.
§
Amendment moved—
Page 11, line 25, after ("done") insert ("in the period")—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTON moved, in paragraph 2(2), after "throughout" to insert "the part of". The noble Lord said: Amendments Nos. 14 and 15 go together and they make a further change in paragraph 2(2) of Schedule 2. The provisions of paragraph 2 apply if at any time during notice an employee finds himself in one of the circumstances listed in paragraph 2(1)—that is to say, he is put on short time, laid off or is away sick or on holiday. In paragraph 2(2), as it stands at present, a worker in this position is to be paid not less than if he were working throughout the normal working hours. This guarantee, I think, could occasionally have rather odd results. To give an example, if an employee, through sickness, missed a day in his first week of notice, the guarantee would, therefore, apply. If, later on, during notice the employee took an afternoon off to see a football match, the guarantee would mean that he was entitled to pay for the hours he was watching the football match. Obviously, it would be wrong for the Bill to have this effect. The two Amendments will prevent it by modifying the guarantee to provide that the employee's pay during notice is not to be less than it would have been if he had been working during the hours he missed owing to shortage of work or sickness or holiday. I beg to move.
§
Amendment moved—
Page 11, line 28, after ("throughout") insert ("the part of")—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONI beg to move.
§
Amendment moved—
Page 11, line 28, at end insert ("covered by paragraphs (a), (b) and (c) of sub-paragraph (1) of this paragraph").—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ 6.51 p.m.
§ LORD CARRINGTON moved, in paragraph 2(3), to leave out "paid to him" and to insert instead: "payable to him by the employer". The noble Lord said: I think it would be convenient to take the next three Amendments together, because they hang together. They relate to the guarantee of a minimum payment to piece workers during notice. Under paragraph 2(3) and (4) pieceworkers whose contracts fix normal working hours, but who through shortage of work, illness, injury or their holidays, are unable to work those hours in full, are to be paid for the hours not worked at not less than their average hourly rate of pay during the four weeks before notice was given. Paragraph 2(4) lays down certain rules about calculating the average hourly rate of pay. In working it out no account is to be taken of periods of sickness or holidays or of the sick pay or holiday pay during those periods. I am sure your Lordships will agree that this is right, since pay at these times is often at a reduced rate and it would therefore be unfair to the employee to include it in this calculation.
§ The reason we have put down these Amendments is that on further consideration we have concluded that there are other circumstances in which the employee may have a reduced rate of pay which should not be reflected in the averaging calculation. For example, work might be temporarily held up by the weather or a breakdown and an employee who is standing by, unable to work at such a time, may be paid at perhaps only half his normal rate. Under a guaranteed-week arrangement, an employee may have to be available for work throughout the week—say 44 hours—but receive the equivalent of only 36 hours wages. The Amendments will put this right by providing that only the hours actually worked and the pay for those hours are to be taken into account in working out the average. They thus ensure that the principle underlying this part of Schedule 2 is applied—namely, that an employee should receive during notice not less 1533 than the contractual rate for his full normal working hours. I beg to move.
§
Amendment moved—
Page 11, line 34, leave out ("paid to him") and insert ("payable to him by the employer").—(Lord Carrington.)
§ LORD LINDGRENThe first Lord has used a number of words in his explanation of these Amendments, but it is quite normal, where piece rates are applicable in industry, for there to be a day rate and for the piece rate to apply only as an incentive bonus for enhanced earnings and to prevent what some people call slacking or not pulling their weight in industry. I should have thought that certainly in most of the industries where trade union agreements are involved, the day rate would have been the applicable rate to apply. Under these Amendments the average hourly rate will be worked out on piece rates, and that might quite easily be above the day rate. We shall not oppose these Amendments, but even now I should have thought there was some opportunity to include the day rate in the Bill. I have gone through it fairly closely, but there is no reference in the Bill to what are the normal basic rates. But we accept the Amendments.
§ LORD CARRINGTONI am interested in what the noble Lord says. I should like to look at it. I do not think that anybody is going to suffer as a result of the Amendments. In fact, from what he says, the reverse will be true. I will have a look at it and see whether any further Amendment is necessary.
§ On Question, Amendment agreed to.
§ LORD CARRINGTONI beg to move.
§
Amendment moved—
Page 11, leave out lines 38 to 42 and insert ("only the hours when the employee was working, and only the remuneration payable for, or apportionable to, those hours of work, shall be brought in.")—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONI beg to move.
§
Amendment moved—
Page 11, line 43, after ("no") insert ("such").—(Lord Carrington.)
§ On Question, Amendment agreed to.
1534§ 6.55 p.m.
§
LORD MCCORQUODALE OF NEWTON moved, in paragraph 2(5), after "otherwise" to insert:
and any sickness benefit or injury benefit in respect of the relevant part of the period of notice to which the employee is entitled under the National Insurance Act 1946 (as amended) and the National Insurance (Industrial Injuries) Act 1946 (as amended) as the case may be".
§ The noble Lord said: I spoke at some length about this matter on Second Reading and will paraphrase as briefly as I can the points I made then. As I interpret Schedule 2, it appears that it would be to an employee's very considerable financial benefit if he were away sick during his period of notice. The man away sick during this period will receive, apparently, the wages to which he is entitled under the Bill, and in addition any National Insurance or Industrial Injuries benefits to which he is entitled. Also he will be excused from paying contributions under the scheme, so he will be considerably better off if he is away sick than if he is working. Thus, the Bill may provide an incentive to go sick during the period of notice. He would have to prove to his employer that he was incapable of working, through sickness; but, as we all know, it is not unknown for people to obtain medical certificates on somewhat doubtful grounds on occasions. I do not think it is right to put temptation in front of people.
§ An increasing number of employers are introducing contributory or non-contributory sick pay schemes for their employees, and it is usual—I think it is almost universal—that these schemes provide for full payment of wages but a deduction is made in respect of National Insurance benefit to which the employee is entitled. These schemes operate successfully and, I think, with the blessing of all concerned. I think it would be reasonable to have this principle put into the Bill. This Amendment may not be the best way to do it. There are all sorts of complications in regard to the three-day waiting period and the position of the Ministry of Pensions. The Government may have a better way of doing it. But, as I said on Second Reading, and I think with general approval, this is obviously an anomaly that should be put right; the man away sick gets his full wages and he should not benefit over the man who works out his notice. I beg to move.
1535
§
Amendment moved—
Page 12, line 1, after ("otherwise") insert the said words.—(Lord McCorquodale of Newton.)
§ LORD ROBERTSON OF OAKRIDGEI raised indentically the same point on Second Reading and I did so for exactly the same reasons as the noble Lord, Lord McCorquodale of Newton. I support the Amendment as worded.
§ LORD LINDGRENBoth noble Lords have considerable association with a variety of industries. No trade unionist would in fact support a proposal that an employee should make a profit out of sickness in particular. After all, the employer has made a considerable contribution towards the National Insurance, as has the employee. But equally, there is a practice in which some employers indulge—not the best employers; after all, if every employer were as good as the best we should not want this Bill at all, but we are not dealing with the good employer; we are dealing with the employer who does not play the game—to give the employee notice during sickness.
I was rather surprised at the attack on the doctors. A doctor wants to be satisfied that the man is worthy of a certificate before he gives it. Illness is bad enough; but when a man has been injured in the employment and is on Industrial Injuries benefit, surely that is in itself a very difficult time in which to give a man notice to leave the employment. Equally, if during the period of employment the man receives an industrial injury and is accepted for industrial injury benefit, I think it is a little difficult or harsh in that instance to deduct what in any case would only be about three days of his industrial injuries benefit. He has gone out handicapped. There is no liability on the employer to maintain a man's employment because he has been injured. I agree that most employers do, and if the injury is such that he is handicapped at all, light employment and rehabilitation is generally fostered by the best of employers. But particularly to include industrial injuries within this Amendment seems to us to be a little harsh. We on this side of the Committee would not divide, but I must say that we are not over-enthusiastic about it.
§ LORD ECCLESI should like to support this Amendment because I believe that it is most important that as many schemes as possible should be introduced whereby sick pay is made up by the employer. I believe that the schemes are growing in number. But it is rather unreasonable to ask people to introduce a scheme of this kind if, in certain cases, the effect is to be that the man is better off by the amount of sick benefit he receives when he is sick. I should think, in answer to the noble Lord, Lord Lindgren, that few people give their employees notice when they are sick as a kind of excuse for doing it. I believe that to be not a common practice, and I do not think it will make any difference to the one or two bad cases whether or not this Amendment is accepted. What I do think is important is that we should try to see that all employers help their people when they fall sick, and I do not think that leaving the Bill as it is will aid these schemes. Therefore, I hope that the Committee will accept the Amendment.
§ LORD CARRINGTONI think that there is a good deal of agreement between everybody who has spoken on this Amendment, although perhaps the noble Lord, Lord Lindgren, would not be quite so enthusiastic about the Amendment as my noble friends Lord McCorquodale of Newton and Lord Eccles and the noble Lord, Lord Robertson of Oakridge. But it is, of course, quite true that the effect of the Bill is that a man who is off sick is guaranteed not less than the wage for working the normal week, and that he will get on top of it whatever he is entitled to under the National Insurance Scheme. The effect could be that a man with a wife and two children could draw up to £7 ls. a week in sickness benefit, so that if his normal wage is £10 a week he will be considerably better off during notice if he is ill. However, in spite of what my noble friend has said, I think we must be careful not to assume that it would be easy for employees to take unfair advantage of this, or that it would lead to widespread malingering. There are many existing schemes in industry under which an employee is better off when he is away ill than when at work, and there is little evidence that this has led to abuse.
1537 At first sight the actual wording of the Amendment which my noble friend has put forward looks reasonable enough, but there is a fundamental difficulty in that an employees entitlement to the benefits of the National Insurance Scheme cannot always be decided immediately. The Amendment mentions sickness benefit in the first place. Normally, a man will have been sick at least a week before he receives any payment at all of National Insurance sickness benefit, and even then, because of the rules relating to the waiting period at the beginning of the time when he is sick, it will often be some time before it is known whether benefit will be payable for the whole of the first week or for only part of it, and it may not be possible to determine straight away what dependants' benefit the employee can claim. Similar practical difficulties may arise, and I think it is undesirable that there should be so much uncertainty about his rights.
Secondly, the Amendment mentions injury benefit under the National Insurance (Industrial Injuries) Act, 1946. It is frequently not possible to determine immediately whether a person is eligible for industrial injury benefit and, pending a decision, he will be paid the sickness benefit which is at a lower rate. Supposing, after the necessary inquiries, he is in fact awarded injury benefit later, how then is the employer to take account of the difference? Is he to be allowed to make a retrospective adjustment in some later week? If the notice has already expired, how can he hope to recover the difference which would be due to him under the Amendment?
These, I think, are practical difficulties in the way of my noble friend's Amendment. But I think there is one objection to the Amendment on grounds of principle. The Amendment envisages that the whole of the sickness or injury benefit, including the dependants' benefit, might be offset against the employer's liability. As the rate of a National Insurance benefit depends, among other things, on the claimant's family responsibilities, this amount can give some insight into the employee's private life which the employee has every right to feel should be kept private, as it is to-day. One must consider seriously whether this incursion into people's personal privacy would be 1538 justified where an employee is ill and under notice.
Another point is that the National Insurance benefits are paid for not only by the employer but, as the noble Lord, Lord Lindgren, has said, also by the employee, and it might therefore seem odd that the employer should be able to offset the whole of the benefit against his liability under the Bill. I am not seeking in any way to undermine the principle which my noble friend is trying to put into the Bill, but I do not think it would be wise to accept his Amendment as it now stands. But, as I said at the outset, I recognise—indeed, the noble Lord, Lord Lindgren, recognised this—that there is considerable force in what my noble friend has said. I personally think that something should be clone, and, if my noble friend will withdraw the Amendment, between now and the next stage I should like to examine the position and perhaps be able to put down an Amendment which is both fair and practicable to both sides and which meets my noble friend's point.
§ LORD SHACKLETONMay I just follow that point to say that I think this is an extremely difficult Amendment to make? I hope the Government will succeed in doing so, but it is not easy to dismiss the three-day question. I should find it difficult to get exact words of the right sort for "entitlement", because there are certain benefits which are, in a sense, optional for which certain people may opt to qualify. In certain respects, married women may do so, but may not have chosen to do so. I am a little nervous about this from the point of view of the administrative consequences of what is already a complicated matter. There are some employers who, in regard to the three days or even other periods, find it so difficult to cope that they prefer not to deduct. It is arguable that if there is no deduction there is a greater incentive to get rid of people while they are ill. But I hope that when consideration is given to this it will be most thorough. I am sure it will be. I think it will be necessary to study the practices of quite a number of firms in regard to this matter. I do not think we disagree with the principle. I am really just not sure whether it is worth the candle.
§ LORD ECCLESI wonder whether I might help my noble friend by saying that, in the scheme in which I am most interested at present, we deduct only the basic rate—that is to say, we do not pay any attention to the children's allowances; we allow the sick worker to keep them. I think that is a rather fair division. What I do not want to see is that a man who is sick and who is within our sick pay scheme, but who has not been given notice, is getting less when he is sick than his neighbour who has been given notice. I think that is somewhat unfair.
§ LORD CARRINGTONThe points raised by the noble Lord, Lord Shackleton, are very much in mind, and I raised one or two of them in my answer. There is a difficulty involved in arriving at an equitable division in this matter. The suggestion made by my noble friend Lord Eccles is something which we are at the moment examining. It may well be that this is the right way of doing it, but there are difficulties. I would therefore like to have the opportunity of a week or so in order that we may examine it to see whether we can provide something which is both fair and practicable.
§ LORD McCORQUODALE OF NEWTONI am most grateful to my noble friend for the care he has taken in answering this complicated point. It shows how complicated it is to put this into legal language. It is something that we could put into an ordinary agreement between trade union and employer in quite simple language on one sheet of paper. A valid point was made about dependants' allowances. It would have the further anomaly, if we did not leave that out of account, that the employer would gain if a man had a wife and family, in that more would be deducted. If the man had not a wife and family even further anomalies would arise, and one could go on ad infinitum. I would not stand in the way of excluding anything but the man's basic benefit, but I think it is important to stand on the principle. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.13 p.m.
§
LORD LINDGREN moved to add to paragraph (4):
but this paragraph shall not apply to an employee who proves that he was absent for the purpose of seeking other work.
§ The noble Lord said: I should like to make it clear, particularly in view of the intervention of the noble Lord, Lord Eccles, on the last Amendment, that if all the firms with which we had to deal in the country were such good employers as the firm with which he is associated, or the printing trade with which the noble Lord, Lord McCorquodale of Newton, is associated, there would be no necessity for this Bill. On the Second Reading I made the point that we in the trade union movement are apprehensive in some ways because the general standards of this Bill are much lower than those already provided by the best employers. We are a little afraid that, instead of this being the minimum, it might become the maximum—which would be to the detriment of employees. Under this paragraph, where an employee asks his employer for time off and the employer grants it, there is a deduction from his wages.
§ LORD McCORQUODALE OF NEWTONIt is not necessarily a deduction. It "may" be deducted.
§ LORD LINDGRENYes, it may be deducted. What happens in the best of industries? Because the Ministry of Labour offices are not always open or conveniently sited to enable the men to visit them before or after working hours, most employers arrange with the Ministry of Labour—who are extremely co-operative in this matter—to send one of their officials to interview the men at the firm to see whether they can place the men before they leave. That type of employer would never think of deducting a man's wages. If the man went to see the foreman or went into the office and said, "I have a chance of a job with Smith and Co. Can I have a couple of hours off to go round and see them?" the decent employer would say "Yes; the best of luck, my lad", and would not make a deduction from his wages.
However, I would again make the point that we are not dealing here with the best of employers. This is a Bill which gives the right of basic treatment to an employee from the less-favourable sort of employer. If a man is on notice and goes to his employer and says "I cannot go and see the prospective employer in my own time, but I have the opportunity of an interview", and gives proof of that, why should the employer 1541 penalise him by deducting his wages during the period of notice? After all, it is the employer who is sacking the man, not the employee himself who is giving notice. If it were the other way round we should not be raising the objection; but in this case, as I say, it is the employer who is severing the contract. The man is likely to be unemployed, and the best of employers will try to get the man employment during his period of notice. Any employer who has given a man notice ought to help him as early as possible to get another job. Therefore, we move this Amendment so that, in the period while the man is seeking other employment, pay should not be deducted.
§
Amendment moved—
Page 13, line 2, at end insert the said words.—(Lord Lindgren.)
§ LORD ROBERTSON OF OAKRIDGEWhile one naturally has great sympathy with the point of view put forward by the noble Lord, Lord Lindgren, I feel bound to query whether this is a very wise Amendment. There are many reasons for a man to be absent. He may get leave of absence for something which deserves one's sympathy; others may be searching for a job; or there may be compassionate or other reasons for absence. It seems to me that this Amendment throws the door wide open, and that it would mean that a man will be entitled to be paid for going to see a football match, provided that he can show that he has called in at the labour exchange. That is what I fear about it.
§ LORD MCCORQUODALE OF NEWTONAlthough one has every sympathy with what the noble Lord, Lord Lindgren, says, and the spirit behind it, I do not see that this proposal is practicable. I do not think any employer, decent or otherwise, would wish to deduct wages from a man who came to him and said, "I have an offer of a job with John Smith and Co. Can I go round and see him? "But if he came every day of the week and said "I think I might get a job with so-and-so", and repeated the performance regularly, in the end the man would not be doing any work at all, and that would defeat the object of the Bill. If I might make a suggestion, could there not be some provision in the Bill that wages should not be deducted for time spent visiting 1542 the employment exchange or something of that sort, because it could easily be proved that the man had gone there, had registered and had come back again? I do not know whether that is a helpful suggestion. I should not like to go further.
§ LORD SHEPHERDI feel that I must rise in support of my noble friend's Amendment. I must admit, quite frankly, that I do not like sub-paragraph (4). Is it not a fact that, in the first instance, the employee has a contract with his employer, and obviously one envisages reasonably long-term employment? If the employer then says, "I am sorry but conditions of trade are such that I must dismiss you. I must give you notice," I should have thought that all reasonable employers would regard that period of notice as a period in which they, as employers, would render all possible assistance in finding alternative employment for the persons being dismissed. I think that that would be accepted by all employers. Of course, if you are a large employer it is not so easy, but I think that is the right attitude for the good employer.
However, this Bill is dealing with the employer who does not quite play the game. The clause says that if an employee obtains the permission of his employer the employee should not receive any payment. The employer himself is breaking the contract, terminating the contract, and this short period is merely the sort of notice which I think the noble Lord, Lord McCorquodale of Newton, would expect. If a contract with one of his suppliers were to be broken suddenly he would expect a period of notice during which the supplies would be coming to him. It would seem to me, therefore, that during this period, the employer having agreed, he should be liable, but according to this paragraph he would not be liable.
The noble Lord, Lord McCorquodale of Newton, nodded his head to my noble friend when he suggested that the good employer would in fact make these payments. In some ways, therefore, the good employer could well be costed out by the bad employer. This is one of the problems of trade unions and of raising of standards. We have never wanted to see a bad employer having an advantage over a good employer because 1543 he does not give the same standards, the same rates, the same conditions of work. Therefore, it would seem to me wrong that, while the majority of good employers would look after their workers during this period, the bad employer should be able to make a lesser contribution.
I can see some difficulty in deleting sub-paragraph (4), but I cannot help feeling that the Government and the Committee should accept at least the spirit of Amendment No. 20. This refers to the employee who proves (and I would stress this particularly to the noble Lord, Lord Robertson of Oakridge) that he was absent for the purpose of seeking other work. There is no question of going to a football match, no question of going to the cinema, as he proves that he goes off to find work. The noble Lord, Lord McCorquodale of Newton, asks; How can he prove it? I would accept the suggestion of the noble Lord, Lord McCorquodale of Newton, that he should be paid for the time during which he goes to the Ministry of Labour for his interview, and perhaps they themselves would give him information about work that is available and would introduce him. I would suggest to the noble Lord, Lord McCorquodale of Newton, that in that particular case, where there is proof, the man should obtain his pay. But to prove to his employer that he was going to be absent in order to be interviewed, a man could well produce a letter, either from the Ministry of Labour—I think it is a green card—or from the future employer. The words in the Amendment are, "who proves".
§ LORD MCCORQUODALE OF NEWTONPerhaps I did not make myself clear. I was not arguing that he could not prove it. But we are dealing with a recalcitrant employer and, sometimes, an employee who is trying to take every possible advantage. We are not dealing here with the decent employer or the decent workman. A man might take the whole fortnight and be able to prove that he was looking for a job, getting letters from everybody and being away all the time. We do not want that in this Bill.
§ LORD SHEPHERDI certainly do not want it either. I do not want to stand 1544 on the side of the worker who is going to cheat his employer by saying: "I am going to get my pay. I am going to tell you that I am going to take a job", but who goes to a football match. I am not on that side at all. I am suggesting that he can prove to his employer, by a letter from the Ministry of Labour where he has had his interview, or from another employer to whom he has been sent by the Ministry of Labour, or, where he has perhaps responded to an advertisement in a newspaper, from that possible employer, giving the time and naming the day on which the interview should take place.
I am not suggesting that the words of this Amendment should stand, but I believe the spirit is there. The proof can be obtained. It is up to the worker to prove that he was absent looking for work. I cannot believe that this House would say that a worker who was having his contract broken by his employer should not make use of that time to obtain further employment, and that during that period while looking for work he should suffer financially.
What is the alternative? I suggest to the noble Lord, Lord McCorquodale of Newton, what he could do. He could say: "Well, I will not do anything. I will wait until I am unemployed. I will then go on the dole and let the State keep me until I get another job." But instead of that he says: "I want to find another job. I do not want to be unemployed." I should think that that is what this House would wish to see. I do not see why the worker, when he is having his contract broken by his employer, should suffer a loss, and it might be a substantial daily loss, while he seeks other employment. It is quite clear in the Amendment that the burden of proof will lie upon the shoulders of the employee. If he gives the proof to his employer, then I suggest that in equity, considering that his contract is being broken, the employer should pay his wages for the time in which he is seeking employment.
§ LORD FORSTER OF HARRABYI would agree in principle. I have great sympathy with the principle proposed in this Amendment, but my experience has been that when it comes to a question of proof great practical difficulties are going to arise. I think that you should 1545 not go—it would be wrong to go—beyond what has been suggested by the noble Lord, Lord McCorquodale of Newton: you should accept proof from the Labour Exchange, but not from anybody who happens to give a letter of a note to an employee to say that he has called for work at his place of business, or whatever it may be. I can see great practical difficulties, interminable struggles, over this question of proof, unless there is some definite evidence to go on. I should be all in favour of accepting proof from a Labour Exchange, but not in general from anyone who chooses to write a note.
§ LORD SHEPHERDIf the Ministry of Labour were then to send a man to A, B or C factories, or A, B or C offices, and there was a registered time of appointment, would the noble Lord take that as evidence?
§ LORD FORSTER OF HARRABYI would accept proof from the Labour Exchange that a man had applied for a particular job. But that is as far, I think, as one ought to go on this Amendment, because of the difficulties and squabbles that are going to arise if any other proof is accepted, and if there is an attempt to get any proof accepted other than something which is going to be backed by the Labour Exchange.
§ LORD CARRINGTONI wonder whether I might courteously refer your Lordships back to the terms of the Amendment which has been moved by the noble Lord, Lord Lindgren, because I am not at all sure that they would, in point of fact, achieve the object which he has in mind. Perhaps I ought to say so. The guarantee in paragraph 2 of the Schedule applies only if during the notice the employee is ready and willing to work, but there is no work for him or he is off sick, and so on. It is not brought into operation if the employee is away from work with leave granted at his own request. It is not at all certain that the Amendment which the noble Lord has proposed would alter this, and it would therefore quite possibly fail in its intended effect. But I appreciate that we are really discussing the purpose behind the noble Lord's Amendment, and not its exact words.
1546 I think that there are difficulties about this matter, and difficulties about the concept—not perhaps so many difficulties about the concept proposed by my noble friend, but the concept of the Amendment. My fight honourable friend the Minister of Labour went into this question very carefully, as a result of the discussions in another place, but he came to the conclusion that it is very difficult to make a practicable alteration. One cannot lay down an entitlement to a fixed amount of time off, because in some cases it would be too small and in other cases it would be too much. It is impossible to lay down a flexible entitlement, such as a right to a "reasonable" amount of time off, because that is so vague; it lacks precision—and it is bound, I should have thought, frequently to give rise to doubt and dispute. This is, in fact, a matter which, in the Government's view, is much better settled, and really can satisfactorily be settled, only by voluntary arrangements between the employer and the employee in the light of the particular circumstances of the case.
I know—indeed, your Lordships who have spoken have borne this out—that the whole Committee would agree that people under notice should have reasonable time off to seek another job. There is, of course, no dispute of any kind about that. I should have thought that commonly this already happens, though there may be cases when it does not. I should have thought that the great majority of the employers already do give their employees help at this very difficult time. But, once having concluded (if your Lordships agree with me) that the question of time off ought to be settled voluntarily, I do not think there is much point in laying down that, if the employer does allow the employee time off, he is compelled to give him minimum pay during that time. Many employers already make this a practice, and for the others it is on the cards that this obligation would make them less inclined to do so. I think it would be counter-productive. The trouble is that the obligation introduces rigidity into what the Government believe should be a flexible arrangement. Might it not be reasonable, perhaps, for an employer to say to his employee during notice, "You can have a day off each week on full 1547 pay to look for another job, and you can have more time off unpaid if you want it"? I think that, if we accepted the intention of this Amendment, we should make it very difficult for the employer to make such an arrangement with his employee.
I hope that the noble Lord opposite does not think I am unsympathetic to what he is trying to do; and I hope, as all your Lordships will, that employers will be as considerate as possible in allowing employees under notice to have time off to look for other jobs. But, as I have indicated, there are great difficulties in this problem. I agree very much with what the noble Lord, Lord Robertson of Oakridge, and what my noble friends behind me have said; and for that reason, I think I must ask your Lordships not to accept this Amendment. However, my noble friend Lord McCorquodale of Newton has made a suggestion as to what might conceivably be done, which was taken up by the noble Lord, Lord Shepherd. I can foresee difficulties in accepting this suggestion (I do not think it is quite so straightforward as my noble friend and as the noble Lord opposite suggested), but I will most certainly look at it and see if there is anything we can do in this particular regard, if the noble Lord would be good enough to withdraw his Amendment to-night.
§ LORD LINDGRENI am most grateful to the noble Lord, Lord Carrington, for his approach to this matter. I do not want to indulge in tedious repetition—I have said this so many times—but the best employer will do more than this: he will bring the Ministry of Labour up into the firm. This is not a criticism of the Ministry of Labour. Because of full employment, Ministry of Labour offices have in a number of areas been reduced, and in small communities they have made a central office; for those who are so unfortunate as to be out of work, they have reduced the number of days on which they have had to sign on, and the rest. So the fellow who is on shift work, for instance, can go into the labour exchange and tell them that he is likely to be unemployed at the end of the week, the Ministry of Labour look at the vacancies, and he is even sent round during his off time. 1548 As to the fellow who starts work at seven-thirty and does not finish until five, he cannot get to the Ministry of Labour offices because they will be closed, sometimes because they are not sited in the area in which he is. What we are concerned about is making it possible for a man, before his employment is terminated, to be in touch with the Ministry of Labour in order that he can see about another job. The best of employers already do that, and the Ministry of Labour are most co-operative in regard to it. I should not have thought it was impossible (and I am grateful to the noble Lord for agreeing to look at it) for some arrangement to be come to between the Ministry of Labour and the employers in this regard when the men are under notice. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.35 p.m.
§ LORD CARRINGTON moved, in paragraph 5, after "if" to insert "after the notice is given and". The noble Lord said: I will, with your Lordships' permission, take these last five Amendments together, because they all basically cover the same point. The first affects paragraph 5 of Schedule 2. The purpose of this paragraph is to prevent an employee who gives notice of an intention to go on strike from having his pay protected by the Bill during the period of the notice, and I should have thought that that was surely right. The purpose of the rules in the Schedule is to safeguard the pay of an employee when having to change jobs, not when he is about to go on strike. It was, however, pointed out in another place that paragraph 5 could possibly be construed as meaning that, if at any time during his employment an employee has gone on strike, he is to be deprived thereafter of the protection of Schedule 2 during any notice. That, of course, is far from the intention, and the Amendment will prevent any possibility of paragraph 5 being taken in this way.
§ Very much the same point can be made about paragraph 6. This is needed to clear up what is to happen to the rights in the Schedule if there is any breach of contract during the period of notice. But, again, as it now stands, it could possibly be taken as being applicable if at any time during the whole 1549 course of the employment there had been a breach of contract. The last of these five Amendments also makes another change. At present, paragraph 6, sub-paragraph (2), is brought into operation by any breach of contract by the employee, however trivial. In other words, a clerk could arrive a minute late at his office, and therefore forfeit his entitlements under the Schedule for the rest of the period of notice. The Amendment puts this right by providing that the employee forfeits his rights only if he commits a breach which the employer rightly treats as terminating the contract. I beg to move.
§
Amendment moved—
Page 13, line 5, after ("if") insert the said words.—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONI beg to move.
§
Amendment moved—
Page 13, line 11, leave out from ("If") to ("notice") in line 12 and insert ("during the period of").—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONI beg to move.
§
Amendment moved—
Page 13, line 13, leave out ("period") and insert ("part of the period of notice").—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONI beg to move.
§
Amendment moved—
Page 13, line 15, leave out ("period") and insert ("part of the period of notice").—(Lord Carrington.)
§ On Question, Amendment agreed to.
§ LORD CARRINGTONI beg to move.
§ Amendment moved—
§
Page 13, line 16, leave out sub-paragraph (2) and insert—
("(2) If during the period of notice the employee breaks the contract and the employer rightfully treats the breach as terminating the contract, no payment shall be due to the employee under this Schedule in respect of the part of the period of notice falling after the termination of the contract."—(Lord Carrington.)
§ LORD LINDGRENAt this late hour, I am sorry to detain the Committee again. As the noble Lord, Lord Carrington, admitted, sub-paragraph (2) is defective from many points of view, but I am afraid we are a little apprehensive in regard to the wording of the substituted para- 1550 graph. Here, again, let me make it quite clear that we are talking about those employers who are going to look for every reason they can find and every wriggle they can make to avoid this Bill: we are not talking about the good employer. Here it talks of where the employer "rightfully treats". Let us take it in sequence. First of all, a contract has been broken because the employer has given the employee notice. Under this Amendment, if the employer "rightfully treats" there is no question of there being any appeal or that he has to establish it. One is not a Parliamentary draftsman. If I were a trade union officer trying to make an agreement with an employer, then the words "establishes that" there has been a breach is better than "rightfully treats", where the whole basis is in favour of the employer and not the employee, and there is no right of the employee to contest it.
Here, again, in the best of employers and where there are trade unions there is no difficulty. In the printing industry, for example, if something went wrong the father of the chapel would be round in no time; or, in other industries, the shop steward or the collector or the responsible official would interview those concerned and put it right. We are concerned here not with the best of employers but with those employers who are trying to avoid the responsibilities and the obligations which are put on them by this Bill. I do not want to oppose this proposal. If the noble Lord would agree to look at this from that point of view and give an opportunity to the employee, so that the employer should not have all the determination but that there shall be some right to contest it, or to establish his position, then I should be happy to let the Amendment pass.
§ LORD CARRINGTONNaturally, I would accept that; but I do not think that the noble Lord need worry too much. This Amendment makes the position very much better from the employee's point of view. Until I moved this Amendment your Lordships accepted that by any breach of contract the employment could be terminated. But I think that the word that is important in this particular Amendment is "rightfully". I think the employer has to establish that he has "rightfully" treated the matter. Of course. I think the 1551 determination of whether it was rightful or not would depend on the terms of the contract and the employee would have exactly the same rights as if the contract were terminated for any other reason. It is not the intention of the Government that it should be otherwise. But I will look at it again.
§ LORD SHEPHERDI am sorry to continue the discussion at this hour, but I want to make two points. A few moments ago we were discussing Amendment No. 20, in which we were trying to see that the employee whose contract has been terminated should have time to seek employment and, during that time, should be paid. The noble Lord, Lord Carrington, suggested that there might be cases where the employer might well refuse his employee the right to go to the Ministry of Labour. He might well refuse the right of the employee to seek other employment in view of the fact that the contract has been broken. If the employee in this particular case is offered a new job and must go for an interview on, say, Tuesday, and the employer says: "No, you must be here", and if the man then goes. I should have said, from my expedience, that he has, in fact, broken the contract. The man has refused to work; he has gone against the instructions of his employer.
According to the Government Amend-that man will then face the loss of all monies that will be due to him. The prospective employer may or may not have taken him on; or, he may not start his work for some days. In any event the employee might feel he could not, when he was having his interview, promise to start work immediately; because he is under some responsibility to his present employer. It seems to 1552 me that the man seeking employment could well be in a bad position. The other point is that, while I quite understand the power of the words "rightfully treats", until this has been made clear, perhaps by a case in law, it might be arguable to what extent an employer can "rightfully treat". It may lead to a series of strikes which we should wish to avoid. I hope that the Government will consider these words between now and the next stage.
§ LORD CARRINGTONIt seems to me that the first point the noble Lord, Lord Shepherd, has made may be a good argument for the last Amendment which the noble Lord, Lord Lindgren, moved, but not for this particular Amendment. He would not, I imagine, dispute the fact that if the man breaks his contract the employer has a right under this provision. I do not think that is entirely relevant to the point was are discussing. With regard to the second point, I should have thought that "rightfully" did, in fact, meet the case. It means that he had established that there was a breach of contract. But I will certainly look at the point again between now and the next stage.
§ On Question, Amendment agreed to.
§ Schedule 2, as amended, agreed to.
§ House resumed: Bill reported with Amendments.