HL Deb 11 February 1986 vol 471 cc175-83

Right not to be dismissed for refusing Sunday work

1. Subject to paragraph 3 below, the dismissal of an employee who is employed as a shop worker and was employed as such on the day before the commencement date shall be regarded as unfair for the purposes of Part V of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act") if the reason for the dismissal (or, if more than one, the principal reason) is that he has refused to do shop work on a Sunday.

Right not to have action short of dismissal taken for refusing Sunday work

2. Subject to paragraph 3 below, every employee who is employed as a shop worker and was employed as such on the day before the commencement date shall have the right not to have action (short of dismissal) taken against him by his employer for the purpose of compelling him to do or agree to do, or penalising him for refusing to do, shop work on a Sunday.

Exclusion for contractual Sunday working

3. Paragraphs 1 and 2 above do not apply where the work in question is work which at the time of the dismissal or, as the case may be, of the taking of the action the employee was obliged to do on the Sunday in question by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date.

Modifications of 1978 Act in pargraph 1 cases

4. Section 54 of the 1978 Act (right not to be unfairly dismissed) shall apply to a dismissal regarded as unfair by virtue of paragraph 1 above regardless of the period for which the employee has been employed and of his age; and accordingly sections 64(1) and 64A(1) of that Act (which disapply the right not to be unfairly dismissed in cases where the employee has not been continuously employed for qualifying periods or has attained retiring age) shall not apply to such a dismissal.

5.—(1) Where in the case of a dismissal regarded as unfair by virtue of paragraph 1 above an additional award falls to be made under section 71(2)(b) of the 1978 Act (compensation where employee not reinstated or re-engaged in accordance with an order for reinstatement or re-engagement following unfair dismissal), the amount shall be not less than twenty-six and not more than fifty-two weeks' pay.

(2) For the purposes of this paragraph the amount of a week's pay shall be calculated in accordance with Schedule 14 of the 1978 Act.

6. Subsection (3) of section 57 of the 1978 Act (determination of question whether dismissal fair or unfair) shall have effect subject to paragraph 1 above.

Application of 1978 Act provisions in paragraph 2 cases

7.—(1) Sections 24 to 26 and 133 of the 1978 Act (complaint to industrial tribunal, compensation and conciliation officers) shall apply in relation to paragraph 2 above as they apply in relation to section 23 of that Act.

(2) The following provisions of the 1978 Act, namely—

section 129 (remedy for infringement of certain rights), section 132 (recoupment of unemployment benefit and supplementary benefit),

section 136 (appeals), and

Part IX (miscellaneous and supplemental provisions), shall apply as if paragraph 2 above were contained in Part II of that Act.

Meaning of "shop worker"

8.—(1) For the purposes of this Schedule a shop worker is an employee who under his contract of employment is engaged to do shop work (whether or not he is also engaged to do other work).

(2) Where on the day before the commencement date a shop worker's relations with his employer have ceased to be governed by a contract of employment, he shall nevertheless be regarded for the purposes of paragraphs 1 and 2 above as having been employed as a shop worker on that day if 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 1978 Act (absence from work because of sickness, pregnancy etc.).

(3) Where section 56 of the 1978 Act (failure to permit a woman to return to work after confinement treated as dismissal) applies to an employee who was employed as a shop worker under her original contract of employment she shall be treated for the purposes of this Schedule as if she had been employed as a shop worker on the date on which she is treated as dismissed under that section.

General interpretation

9. In this Schedule—

"action", "contract of employment", "employee", "employer", "employment" and "original contract of employment" have the meanings given in section 153(1) of the 1978 Act;

"commencement date" means the date on which this Act is passed;

"dismissal" has the same meaning as in the 1978 Act;

"shop" includes any premises or other place where any retail trade or business is carried on and, for the purposes of this definition, "retail trade or business" has the same meaning as in the Shops Act 1950;

"shop work" means work in or about a shop;

"the 1978 Act" means the Employment Protection (Consolidation) Act 1978;

"Week" means a week ending with a Saturday.").

The noble Lord said: My Lords, during the Committee stage the drafting of Schedule 1 was roundly criticised by many of your Lordships. I promised to see whether it could be revised, and that has been done. But before discussing the merits of the revised draft I should first like to say something about the small extension of these rights that we have made, to which I referred on an earlier amendment.

Though we cannot accept that new entrants to shopwork should enjoy these rights, we feel that one small but significant extension of these rights is appropriate. The original intention was that persons who were employed as shopworkers on commencement date could retain their rights only as long as they remained with the same employer as shopworkers. This meant that existing shopworkers who subsequently left their original employer and joined another retail employer would lose their rights, as would shopworkers who, while remaining with their original employer, moved to non-shopwork and back again to shopwork.

During the Committee stage my noble friend Lord Wolfson voiced his concern about this feature of our proposals. My noble friend thought that it: could well lead to resentment and would not be helpful to good human relations in the trade". He went on to say that: It could also have the effect, which is not intended, of inhibiting occupational change".

On further reflection I think that my noble friend was right, and when redrafting Schedule 1 we have made this change, so enabling shopworkers who are employed before commencement date to retain their rights if they subsequently change employers or jobs. The new position is that shopworkers will be able to claim these rights if they were employed as shopworkers on the day before commencement date and are also employed as shopworkers when they are dismissed or have action short of dismissal taken against them. Whatever they do in between those dates will not disqualify them from being able to exercise these two new rights. But I should point out to your Lordships that if a shopworker with these rights attempts to move to employment with another shop he may not be offered a job unless he agrees to waive his rights and to work on a Sunday.

I turn now to the detail of the revised draft of Schedule 1. I shall concentrate on the changes and not go into great detail about the points that I hope will be reasonably clear. During Committee stage, as I said, the draft of Schedule 1 was criticised, especially by the noble and learned Lords, Lord Simon and Lord Denning, and by my noble friend Lord Renton. We have carefully considered what was said. Although this new draft appears in its structure and form somewhat different from the original Schedule 1, the eligibility, scope and extent of the new rights are essentially the same, apart from the amendment I have just spoken about, as those incorporated in the earlier draft. I hope that your Lordships will agree that the new draft is a substantial improvement on the earlier one and will be fairly easily comprehensible to shopworkers and shopkeepers, which was a concern raised at Committee stage.

As regards changes in the eligibility, scope and extent of protection between these two drafts, the revised draft, of course, includes our decision that existing employees who subsequently change employers or jobs can retain their statutory rights. The small extension of these rights has, additionally, simplified the drafting of Schedule 1, because we have been able to dispense with the rather lengthy and involved definition of "established shopworker", which was a point that we stuck on at some length during our earlier discussions. This has also meant that we no longer require the concept of continuous employment from the Employment Protection Act 1978.

I hope that it will not be necessary for me to go over all the points in detail, as I am sure that your Lordships will have examined the new schedule carefully. But I mention briefly paragraph 6, which is a new provision that on reflection it is thought should be included. It merely records that Section 57(3) of the 1978 Act, which deals with whether a dismissal is fair or unfair, shall have effect subject to paragraph 1 of this schedule. This is because a dismissal falling within paragraph 1 is automatically unfair if the reason for the dismissal was the refusal to work on a Sunday.

During the Committee stage—and here I return to the point raised by the noble Lord, Lord Graham, when he was questioning my noble friend Lady Trumpington just now on the old paragraph 8—several noble Lords questioned the purpose and effect of paragraph 8 of the previous version of Schedule 1. It was included for the avoidance of doubt, so that Section 140 of the 1978 Act (which prohibits contracting out of the statutory rights and which applies to both the rights in the schedule) would not prevent a shopworker agreeing to do shopwork on a Sunday. On reflection we consider that this provision is now no longer necessary. It is obvious from the new paragraph that a shopworker who agrees to do shopwork on a Sunday will not, to that extent, enjoy the rights in the schedule.

I should like to study what the noble Lord, Lord Graham, said. I believe that we have genuinely met the concern that he feels. There is no attempt to pull the wool over anybody's eyes. We put the provision there originally purely to try to clarify matters, but we now believe that doubt is avoided by the existing drafting. I hope that he will be satisfied on that point. I thought that I should return to it in some detail because it was a point about which he obviously did not feel confident. I feel much more confident that he does; indeed, I am entirely satisfied, although I shall, as I said, look at what he said.

I hope that with that explanation of the way in which it has been possible to simplify Schedule 1 your Lordships will agree that what is now in the Marshalled List of amendments is indeed an improvement. I beg to move.

[Amendments Nos. 22A and 22B, as amendments to Amendment No. 22, not moved.]

9.30 p.m.

Lord Graham of Edmonton moved, as an amendment to Amendment No. 22, Amendment No. 22C: Line 34, after ("age") insert ("or where the normal number of weekly hours are below sixteen").

The noble Lord said: This amendment in effect seeks to ensure that the protections are enjoyed by part-timers, or even part-part-timers. I wonder whether the Minister has a note, at the top of which, clearly, is the word "Resist", with which he may very well be able to help us in respect of Amendment No. 22C. My recollection is that it seeks to ensure that those employed in retailing (where, very often, workers are not only not full-timers but are limited part-timers) enjoy the protections.

Lord Glenarthur

My Lords, the short answer to the noble Lord, Lord Graham, is that everyone does enjoy that which he seeks. I could explain at some length, having expected the noble Lord, Lord McCarthy, to move Amendments Nos. 22A and 22B. I would have been able to explain that what he proposed was unnecessary because paragraph 4 already achieves the intention of the amendments. It is not necessary to disapply the rules in Schedule 13 as to what counts as a period of continuous employment. There may be a misunderstanding on this. I hope that the noble Lords, Lord McCarthy and Lord Graham, will accept what I have said.

The Deputy Speaker (Lord Ampthill)

My Lords, if the noble Lord the Minister will forgive me, the Question is, That Amendment No. 22C shall be agreed to?

Lord Graham of Edmonton

My Lords, I beg leave to withdraw the amendment.

Amendment to Amendment No. 22, by leave, withdrawn.

Lord Wedderburn of Charlton

My Lords, the noble Lord the Minister has, I believe, moved Amendment No. 22, and it is to that amendment that I would ask noble Lords to address themselves again. The Minister has already said that paragraph 3 is a crucial paragraph, if not the crucial paragraph, to the new Schedule 1, which, as the Minister said, is a complete redraft following what was said in Committee. Indeed, the noble Baroness, Lady Trumpington, relied on paragraph 3 when answering a point about the old paragraph 8 as to why Section 40 should not be disapplied. It is indeed paragraph 3 that is the crux of the new draft. I wonder whether the Government have intentionally changed something that is the crux within that draft.

In the old definition, if I may put it briefly at this late hour, the criticial definition of contractual Sunday work related to what the worker was obliged, under the contract of employment, to do on a Sunday, or what he had agreed in writing, on or after the date of commencement of the Act, to do on a Sunday. A very different formula appears in paragraph 3. In paragraph 3 we find that the exclusion for contractual Sunday working relates to, the taking of the action the employee was obliged to do on the Sunday in question by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date". We find, in place of the test of the obligations in the contract of employment, the test of the existing agreements that the worker has made. There must be significance in that change. In other words the agreement does not relate only to the agreement that he has made with his existing employer at the time of the commencement. It must therefore include agreements made with others, with customers, with fellow workers, with wives and with previous employers. Indeed, what the noble Lord the Minister said alerted me to points that I had not seen; that the whole question of agreements with previous employers might be relevant to this paragraph. If the Government do not intend that, they must change their drafting again.

It may be said that agreements with these people—that is, people other than the employer on the date of commencement of the Act—will not be legally binding. That might well be so. Agreements with the wife to work on Sunday might not be legally binding. But the Act does not say that it has to be legally binding. It says: by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date. The word "agreement" is put in place of the word that was in the original Bill, "employment contract". There is a difference, and the Government must intend that difference. The question I ask is, why? This is not a technical point. We have seen already that paragraphs 1 and 2 depend upon paragraph 3. Indeed they are subject to it. But the workers' rights, or lack of rights, in regard to unfair dismissal in paragraphs 4, 5 and 6 depend upon paragraph 3. The workers' rights in regard to action short of dismissal depend upon paragraph 3. Indeed in paragraph 8 the Government themselves have highlighted the distinction because once again in paragraph 8(3) it refers to the original contract of employment, not just some agreement made with someone. I find this a quite astonishing new draft, in a Bill which has been lambasted in this House and elsewhere as oppressive to shopworkers, to say that they will be held to any agreement, whatever that will mean, in the tribunals—the EAT, the Court of Appeal and elsewhere—leaving them as it were at risk of some agreement that they have made whereby all these great rights which are now established, it is said, under the new Schedule 1 collapse like a pack of cards.

I suggest to the noble Lord the Minister that if there is some simple answer to this point—I hope that it will not be a dazzling answer relating to the Salmon Bill or the public order Bill, but to this Bill—let us have it. But if there is not then I urge your Lordships to entreat the Government in the interests of certainty and of not promoting litigation—albeit I am a lawyer, there is no point in having legislation that promotes litigation—to clarify this schedule at least by amending the "agreement" referred to in paragraph 3 to the "contract of employment" so that the worker knows where he stands. At the moment the clause does not allow him to do that.

Lord Mishcon

My Lords, I wonder whether I may raise a point which arises out of the principle which was just explored, but which I believe rather takes me to a slightly different point. If the noble Lord the Minister cannot answer the question that I put to him now, I shall quite understand, but I should appreciate it if he could write to me with an answer.

Does Clause 3 mean this? An employee who has never before worked on a Sunday, and certainly not agreed to work every Sunday, agrees to do so as a result of a request by his employer to make an exception and work on a specific Sunday—an isolated Sunday. That agreement takes the form of a letter from the employer to the employee saying, "I would so appreciate it if you did come in on this Sunday as an exception. Would you please agree to do so?" The employee writes back, saying, "Yes, I will". Then for some reason on that one Sunday alone he does not in fact turn up. If the noble Lord the Minister would look at the wording of new paragraph 3 he will see that at least I am entitled to ask the question whether that does not rob the employee of all his rights.

For the purpose of clarity I refer to the words I have in mind. Paragraphs 1 and 2"— says paragraph 3— do not apply where the work in question is work which at the time of the dismissal or, as the case may be, of the taking of the action the employee was obliged to do on the Sunday in question"— not all Sundays— by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date". This is a terribly important point. I shall well understand it if, having thrown it at the Minister at this late hour, he requires a little time to reflect upon it; but it is something in the drafting which at the moment makes me feel that I may have raised a rather material point.

Lord Simon of Glaisdale

My Lords, as one of those who presumed to criticise the drafting of the original schedule it is only right that I should say that this seems to me to be a tremendous improvement. It can now be easily understood by the trade union officials and by the retail organisations and, I should have thought, by an individual shopkeeper who has been accustomed to the Shops Act 1950. That is the general position, so I express my thanks.

I should also like particularly to thank the noble Lord for meeting the point on "established shopworker". I ventured to suggest that there were only three possible cases. One was worth meeting, could be met simply, and indeed has now been met most felicitously, where the employee changes from one shopkeeper employer to another before the date of the action which is in question, the penal action. The other two cases were so remote that they were not worth considering. The draftsman has met that point entirely. We are now rid of the infelicity of "uncontractual Sunday work" and the extraordinary complexity of "established shopworker".

As for the point on the drafting of paragraph 3, I do not doubt that the noble Lord will want to consider the points that have been made. I am bound to say that it had not struck me that "agreement" in paragraph 3 could possible be read in any other sense than as an agreement between the employer and the employee relating to a shopworking contract. I have no doubt that the noble Lord will want to consider at leisure what has been said, but it would be inappropriate if one of those who criticised with some vigour the drafting of the original schedule did not now express gratitude, and I do so.

9.45 p.m.

Lord Coleraine

My Lords, I should like to say a word which may go beyond the drafting of paragraph 3. This is the question of the employee being obliged to do on the Sunday in question [work] by virtue of an agreement made by him before the commencement date. In most cases a contract of employment will be to work specified hours, but there will be cases where somebody is obliged to work hours as required by his employer. If this were a contract made before the commencement date it would have obliged the employee to work on a Sunday, but he would have had no apprehension that this was the case, no understanding that he would be obliged to work on a Sunday. Similarly, if somebody is working under the same sort of contractual terms after the commencement date for a shop which had never worked on a Sunday, he also would have assumed, in the absence of any specific reference to Sundays in his contract, that he would not be obliged to work on a Sunday. But by the literal terms of the contract he would be obliged to work on a Sunday because the contract says that he works the hours required by his employer.

I should have thought that it would be better if paragraph 3 expressed the exclusion so that it would not just be an obligation to work on a Sunday by virtue of an agreement made, but by virtue of an agreement which expressly provided for working on a Sunday.

Lord Glenarthur

My Lords, I am extremely conscious, perhaps more conscious than some others, that on matters of employment legislation the noble Lord, Lord Wedderburn of Charlton, and the noble Lord, Lord McCarthy, are renowned experts. I very much remember my indoctrination on the Employment Bill 1982, I believe it was, when we debated for long hours, as far as 5 o'clock in the morning at one point, some fairly difficult concepts. May I assure the noble Lord, Lord Wedderburn, that there is no intention to indicate a change of policy by what has been put now in new paragraph 3. It is certainly not the intention that agreements made with people other than employers are covered by paragraph 3. It is intended that only legally-binding agreements are covered by that paragraph. I hope the noble Lord will remember, as I am sure he will, that it must be said that any agreement between an employer and an employee will form part of the contract of employment. I believe he will concede that.

So far as the point made by the noble Lord, Lord Mishcon, is concerned, I should like to study what he said. If it is in any way an answer to what he has put to me, I can say that if an employee has agreed to work on a specific Sunday, if he does not turn up he will be deprived of the rights in the schedule in respect of that particular Sunday, but not in respect of any other Sunday. But perhaps that does not meet the noble Lord's concern. I hoped it might have gone some way towards it.

I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for what he has said. I fear that my answer to my noble friend Lord Coleraine, will have to form part of what I shall now say to the noble Lord, Lord Wedderburn; that is, that I shall have to look carefully at all that has been said.

If there has been any slip-up in the drafting here—it is a highly technical matter indeed—I can assure your Lordships that there has been no intention on anybody's part to bamboozle anybody into believing that any change has been slipped in. I hope that your Lordships will agree that that is the best way of proceeding this evening. I can give your Lordships that assurance.

Lord McCarthy

My Lords, before the noble Lord sits down, may I ask him this question? I am not quite sure what he is saying. Is he saying that he would come back at Third Reading, for example, and propose an amendment to paragraph 3, so that instead of reading "an agreement", it read, "a provision in the contract of employment"?

Lord Glenarthur

My Lords, with the leave of the House, what I am saying is that I shall have to study very carefully what has been said. I honestly do not think I can respond off the top of my head to the very detailed and technical arguments which have been put forward by the noble Lord, Lord Wedderburn of Charlton. I shall study that and I shall undertake certainly to correspond with all those who have taken part in this debate with a view to clarifying the position. It is conceivable that something has not been spelt out correctly. I should like to consider what has been said and I hope the noble Lord will agree that that is the best way forward.

Lord Graham of Edmonton

My Lords, I am grateful to the Minister for taking the care that he has. I should simply like to remind him that the amendment that we have made to the original paragraph 8, which was superseded by the new paragraph 3, requires to be studied with care by those outside the House as well as the Minister studying what has been said here. In the spirit in which he has said, without any commitment whatsoever, that he will see whether the points that he believes were due to be met have been met, I shall want to take advice from outside the House as to whether the concerns of those outside are being met in the Bill. I thank the Minister.

On Question, amendment agreed to.

[Amendments Nos. 22D, 23, 24, 25 and 26 not moved.]