HL Deb 18 July 1963 vol 252 cc313-20

3.46 p.m.

Report of Amendments received (according to Order).

Clause 4 [Written particulars of terms of employment]:

LORD CARRINGTON moved to leave out subsections (1) and (2). The noble Lord said: My Lords, I imagine your Lordships may be rather daunted by the amount of type on the Marshalled List in my name, but I can reassure you. In fact all these Amendments cover one relatively small and simple point, the substance of which is dealt with in page 4, line 26; and, with your Lordships' permission, I will speak about all these Amendments together. The purpose of them is to meet a point which was raised in the Committee stage by the noble Lord, Lord Shackleton. Subsection (1) of the clause as it now stands lays down that the clause is not to apply if and so long as the terms mentioned in subsection (3) are included in the written contract. The noble Lord raised the question as to whether Clause 4(6) concerning changes in the terms of contract is to apply to the written contract. In fact, I think the noble Lord was quite right and the clause does not deal satisfactorily with a change in the terms of written contracts, and the main purpose of the Amendment is to put this right.

The noble Lord also suggested that, as drafted, the clause could be interpreted as requiring the employer to provide a written statement identifying the parties and specifying the date when employment began, even where there was a written contract giving all the particulars required by Clause 4(3). The Amendment we are discussing will also remove any possibility of this kind. The effect of the Amendment will be that no written statement of any kind will be required by Clause 4 if, and so long as, there is a written contract which contains particulars of all the terms specified in Clause 4(3). This is subject to the condition that the employee either is given a copy of the written contract or has a copy of the contract made available to him. I think it is right to put this condition in. The written contract is not much use to the employee if it is locked up somewhere where he has no access to it.

If the written contract does not cover all the terms listed in subsection (3) then the employer must—as he must under the clause as it stands already—provide a written statement. He can, of course, use the written contract as a reference document for as many of the terms as he likes, so that the written statement may be a simple one. If the terms are originally all set out in a written contract but they change later, but no change is made in the written contract, then at that point the employer begins to be covered by Clause 4 and has to give a written statement under subsection (3) within one month. I am grateful to the noble Lord for having put forward these points, and I hope he will agree that with this Amendment we have clarified the clause in a reasonable way.

There is no point of substance in the remaining Amendments, but they do have the effect of splitting Clause 4 into two, because it was becoming impossibly long. The main Amendment would have made it yet longer, and I hope, therefore, that your Lordships will agree that it is best to split the clause in two.

Amendment moved— Page 2, line 38, leave out subsections (1) and (2).—(Lord Carrington.)


I am grateful to the noble Lord. The clause as originally drafted was very difficult. I think it defeated me and the First Lord when we discussed it; and this will make it easier for the employer and the worker to understand what is going to be very difficult to understand anyway.

On Question, Amendment agreed to.


My Lords, I beg to move.

Amendment moved—

Page 4, line 26, at end insert— () This section shall not apply to an employee if and so long as—

  1. (a) his contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsection (3) of this section, and under each head of paragraph (d) of that subsection, and
  2. (b) a copy of the contract (with any variations made from time to time) has been given to the employee, or the employee has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way.
and if at any time after the beginning of an employee's period of employment he ceases to come within the exception in this subsection, the employer shall give the employee a written statement under subsection (3) of this section not more than one month after that time. () No account shall be taken under this section of employment during any period when the hours of employment are normally less than twenty-one hours weekly, and this section shall apply to an employee who at any time comes or ceases to come within the exception in this subsection as if a period of employment terminated or began at that time."—(Lord Carrington.)

3.50 p.m.

LORD SHACKLETON moved, as an Amendment to the Amendment, to add to the first subsection Provided that, if the employee so requests, a copy of the documents and contract aforesaid shall be made available to him for his own use".

The noble Lord said: My Lords, I am not sure whether it is in order for me to move my Amendment at this stage, but I should like to move Amendment No. 3 on the Marshalled List. This is a small but, I think, not unimportant point. The clause as at present drafted, which in so many other respects meets the points we have made on Committee stage, has however one weakness. It reads: a copy of the contract (with any variations made from time to time) has been given to the employee, or the employee has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way".

The effect of the clarification that we now have is that there will be quite a number of employees who will not get a statement of particulars which covers the various points required to be covered under the Bill. It is now firmly established that this statement of particulars is not itself a contract, although it is one of the major parts of the Bill. It is likely that there will be some people who will expect such a statement of particulars. I take it that, one way or another, through publicity and the help of the Ministry of Labour, means will be found to make clear to the employee his rights in this matter. He will not be entitled to expect a written statement, if a contract exists—I mean a written contract, though it may even be an exchange of letters. It is possible that an employee may want to have a copy of his contract, and any reasonable employer—and I think that the sort of employer who provides these contracts is likely to be reasonable—would make copies available as a reasonable thing to do. But it is possible that circumstances might exist where an employee wanted a copy of his contract not just to read himself but on which to take advice. He might wish to take legal advice or show it to his trade union secretary, or he may wish to study it in rather better conditions than just reading it in the course of his employment.

Therefore my Amendment provides that if an employee requests a copy of the document of contract it should be made available to him for his own use. It is not desirable to make copies of contracts automatically available: that would create a great deal of extra paper, and we are not proposing that this should be so. But it is possible that obstacles might be put in an employee's way of obtaining a copy of a contract, especially if a conflict arises, and it is in exceptional circumstances that this Bill will have such use as it will have. I think that this provision is a fairly mild one and I hope that the Government will feel that they can accept the principle. I have taken legal advice about it and it seems to be reasonable. It might be possible that there is some further consequential Amendment necessary, but I rather doubt it, and I hope that the Government will be able to accept my Amendment as it stands.

Amendment to the Amendment moved— In subsection (1) at end insert the said proviso.—(Lord Shackleton.)


My Lords, I understand that the effect of the Amendment moved by the noble Lord opposite would be that the exemption would not apply to employees with written contracts, if the employee asks for a copy of the written contract and it is not supplied to him. If this condition were written into the Bill, we should be putting on the employer an obligation which he does not have as regards the requirements of Clause 4 itself. We should be adding something, because Clause 4(7) makes it clear that the employer does not have to set out all the main terms of employment in the written statement. He may refer the employee in the written statement to a reference document, provided that the reference document is kept available.

We have done our best in this Bill, although I know that some of your Lordships think we have not been very successful, to reduce the burden of paperwork for the employer resulting from Clause 4. I am sure that your Lordships would agree that it is very desirable to do this. I do not think we could contemplate compelling the employer to give the employee on request copies of reference documents under Subsection (7) to take away. I doubt whether it would be practicable and I think it would be very costly for the employer to do this. But if reference documents under subsection (7) were not to be made available to the employee to take away—and I think this was the consequential Amendment about which the noble Lord was talking—I do not think we should be justified in making this a condition of exemption for written contracts. In any case, we should be inviting an employer who wants to get round the difficulty to use the written contract as a reference document under subsection (7) and not to claim any exemption from the requirements of Clause 4.

If it is important—and I think it might be important on some occasions—to the employee to get some of the actual wording of the written contract written down, he can write it down himself, and naturally any reasonable employer would give him help in doing it. In any legal action about a written contract, the contract itself would have to be produced. I do not want to twit the noble Lord opposite, because he has been very reasonable about this Bill, but in point of fact on Committee stage he himself pointed out how expensive it would be to give every employee a copy of his written contract. I hope that in the light of my explanation the noble Lord will return again to his original point of view, that the Bill is all right as it now stands, and that it will not be necessary to do this.


My Lords, I am not sure whether I understood the noble Lord in every respect, and, if not, I apologise to him; nor am I quite sure whether he fully took the point I was making. It is true that I am anxious for clarification of the clause because, as it was drafted, we did not know whether any written particulars had to be given at all, if a contract existed. It was our view that it did not, but it was open to legal doubt. I should certainly be against making it obligatory to supply thousands of extra pieces of paper. It was our objection to the Bill that it was going to make extra paper. My point is—whether my Amendment meets it or not—that it is not good enough to say that an employee can have access to documents, the full purport of which he may not understand. Anyone who has had to deal with contracts of employment, or with his own contract, will know how difficult they are to understand. The noble Lord said that any reasonable employer would make them available. I entirely agree. And if any reasonable employer can make them available, I do not see why any unreasonable employer should not be required to make them available. I do not think that I am going to get very far with the noble Lord, but I do not feel inclined to withdraw my Amendment, unless he himself could perhaps consider the point a little longer. I apologise because it was put down at short notice—we are rushing rather hard these days.


My Lords, of course I will consider it again, without any promise on my side. I appreciate that the employer ought to give reasonable opportunities to an employee of reading a copy and to make it reasonably accessible to him. The only difference between us is whether or not physically a man is to be given a copy of the contract. Certainly, in the opinion of my right honourable friend the Minister of Labour, it is not in this case necessary. However, I will certainly look at it again.


My Lords, I trust that the noble Lord will not give way to the noble Lord, Lord Shackleton, on this. We are not anxious to have it done, but if at a later stage it should be done, please could he add, "if the employee so requests in writing"? A verbal request gets so tied up in the noise and hubbub of industry that sometimes it is not heard.


My Lords, the trouble is that we should then be multiplying all the paperwork, which is just what we are trying to avoid.


My Lords, the object is not to multiply the amount of paper, but in the exceptional case to make it possible for somebody to take these documents away and study them. However, I accept that the noble Lord will consider the point further. I beg leave to withdraw.

Amendment to Amendment, by leave, withdrawn.

On Question, Amendment agreed to.


My Lords, I beg to move.

Amendment moved— Page 4, line 27, leave out ("Subsection (3) of").—(Lord Carrington.)

On Question, Amendment agreed to.

LORD CARRINGTON: My Lords, I beg to move Amendments Nos. 5 and 6.

Amendments moved—

Page 4, line 36, leave out subsections (11) to (16) and insert them as a new clause as follows: After Clause 4, insert the following new clause:

Provisions supplemental to s.4.

(".—(1) If a person—

  1. (a) without reasonable excuse fails to comply with any of the requirements of section 4 of this Act, or
  2. (b) in a statement under that section or in any document prepared for the purposes of subsection (7) or subsection (8) of that section includes anything which to his knowledge is false in a material particular, or recklessly includes anything which is false in a material particular,
he shall be liable on summary conviction to a fine not exceeding twenty pounds.

(2) If an employer has failed to give the statement required under subsection (3) or subsection (6) of the said section 4 within the time limited by that section then, without prejudice to the bringing of proceedings under the foregoing subsection, the employee may by notice in writing to the employer require him within a period of not less than one week from receipt of the notice, to make good his default, and if the default continues after the expiration of that period, the employer shall be liable on summary conviction, in the case of a first offence under this subsection to a fine not exceeding twenty pounds, and in the case of a second or subsequent offence under this subsection to a fine not exceeding one hundred pounds.

(3) If an employee's employment terminates within the time limited by the said section 4 for giving a statement required under subsection (3) or subsection (6) of that section, and before the statement is given, no offence is committed under this section in respect of the failure to give the statement.

(4) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

In this subsection, the expression 'director', in relation to any body corporate which is established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking and whose affairs are managed by the members thereof, means a member of that body.

(5) The Minister shall have power by order to provide that the said section 4 shall have effect as if such further particulars as may be specified in the order were included in the particulars to be included in a statement under that section.

(6) An order under the last foregoing subsection may contain such transitional and other supplemental and incidental provisions, including provisions amending subsection (3) of the said section 4, as appear to the Minister to be expedient, and may be varied or revoked by a further order so made.

Any such order shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament").—(Lord Carrington.)

On Question, Amendments agreed to.

Clause 6 [Power to vary number of weekly hours of employment necessary to qualify for rights]:


My Lords, I beg to move.

Amendment moved— Page 6, line 44, leave out ("4(2)") and insert ("4(9)").—(Lord Carrington.)

On Question, Amendment agreed to.