Shops Bill [H.L.]

HL Deb 23 January 1986 vol 470 cc398-427

House again in Committee on Schedule 1.

Lord Graham of Edmonton moved Amendment No. 25: Page 3, line 14, at end insert ("and to which he has not withdrawn his agreement by notice given under paragraph 8(2) of this Schedule.").

The noble Lord said: With Amendment No. 25, I beg leave to speak also to Amendments Nos. 28, 32 and 34. Amendment No. 28: Page 4, line 25, at end insert ("or has given notice under paragraph 8(2) or otherwise that he intends to withdraw his consent to do shop work on a Sunday.". Amendment No. 32: Page 4, line 43, at end insert ("or penalising him for giving notice under paragraph 8(2) that he intends to withdraw his consent to do shop work on a Sunday".). Amendment No. 34: Page 5, line 19, at end insert ("so long as that employee has not exercised any right under this Act to terminate his agreement to that provision. (2) An employee may at any time cancel his consent to do shop work on a Sunday by notice in writing given to his employer. Such notice shall have no other effect on his contract of employment save to terminate his consent to do such work and to cancel the employer's obligation to pay for such work. Any notice under this subsection shall take effect at (but not before) the end of the period of four weeks beginning with the day on which the notice is given.").

These are all part of the same argument. This amendment is designed to ensure that a worker who has contractually agreed to do Sunday work may withdraw from that agreement after a reasonable period of notice. It is modelled on the wording of Section 3 of the Payment of Wages Act 1960.

The Bill as it is presently drafted will place shopworkers in a highly inflexible contractual position. The right to protection against unfair dismissal for refusing to work on Sunday depends on the maintenance of an existing contract. Thus, workers who are uncertain whether to accept Sunday working may be less likely to be prepared to accept a change of shift patterns for fear of losing the right to protection against unfair dismissal if they change their minds. Obviously, this inflexibility will also work against an employer's interest. On the other hand, vulnerable employees may be placed in a position where they unwillingly abandon their original contractual terms under pressure from the less scrupulous employer, thereby permanently losing any right to refuse Sunday working.

I am simply saying to the Committee that in this series of amendments we are continuing to try to protect the right of choice of employees as to working on a Sunday. In our view, the amendment will benefit both employees and employers. A decision to carry out Sunday working remains without a once-and-for-all disfranchisement from unfair dismissal protection. The amendment will contribute towards greater flexibility, which will help employers and will also enable workers more securely to balance family and leisure needs with the requirements of Sunday trading.

These amendments complement previous attempts, with which we have not made progress, and provide protection against victimisation or dismissal for those exercising their rights under other amendments. It certainly would not be our intention to press these amendments. We are at a stage of the Bill when we believe we can make most progress by raising matters and allowing the Minister and his advisers to give us the benefit of, undoubtedly, their greater access both to experience and record. It is in that spirit that I move this amendment.

Lord Glenarthur

I listened with care to the noble Lord, Lord Graham, but if these amendments were to be passed they would give one party to a contractual arrangement carte blanche to change unilaterally the conditions of his employment and place the other party at a considerable disadvantage. It would place employers in what I believe would be really a quite impossible position. The amendments would give those established shopworkers who have entered into a contractual obligation to work on Sundays the right to change their minds as often as they wished without consultation or negotiation with their employer.

Indeed, if all the noble Lord's amendments were passed, similar licence would be granted to shopworkers joining the industry after the commencement of the Act. What is proposed in these amendments, I have to tell the noble Lord, is quite inequitable. Employers have rights just as employees have rights. They, too, deserve consideration. If these amendments were approved, employers would be unable to rely on any permanent commitment to Sunday work by their employees. Employers would be placed in the weakest of bargaining positions, and would find it much more difficult to plan their working schedules and their staff needs with efficiency or certainty.

I cannot see that at the end of the day it would be to the mutual advantage of the employees and the employers, and I cannot see that it is in the interests singly of the employees. What the noble Lord is suggesting would not be a reasonable restraint on a bad employer. Rather, I suggest, it would be a charter for the unreasonable employee. I believe that these amendments are unreasonable. They would create a thoroughly unfair situation, and I hope the noble Lord will see fit to withdraw them.

Baroness Gardner of Parkes

I do not support these amendments in their present form, but I think the noble Lord, Lord Graham, has made one very important point. That is, I think there are a lot of people who are not quite sure whether they do or do not want to work on a Sunday. People who, some months ago, spoke to me about their never wanting to work on a Sunday are now saying to me that they think they might. But they appreciate exactly the point the noble Lord has made: that if they accept that opportunity to work on a Sunday, to give it a try, then they have lost their right ever to say that they do not want to do so. I think there is a case for some sort of a trial period by mutual agreement, perhaps, between employer and employee, which would still give them a later right. It seems to me that we may be losing a lot of people who, if they only had the opportunity to work on a Sunday, might find it suited them very well.

Lord Glenarthur

I do not know whether my noble friend was in her place when the earlier amendments were discussed, which made clear that on various points concerned with employment—notably on Amendment No. 24, put down earlier by my noble friend Lord Renton and debated again this afternoon on Clause 3 stand part—I had indicated that there may be food for thought in what my noble friend Lord Renton had said. I think that what my noble friend Lady Gardner is suggesting would perhaps be encompassed within those remarks. It may not necessarily mean that this particular amendment is suitable for ideas of the sort she is putting forward. Nevertheless, I did give an undertaking to consider very seriously and with great care all the remarks that were made in connection with earlier amendments, which might meet my noble friend's point.

Baroness Gardner of Parkes

I would thank my noble friend for that and state that I was not here. I have only just flown back into London. I have come in because I have an amendment down in my name. But I will read in Hansard what was said.

Lord Simon of Glaisdale

As I told the noble Lord, Lord Graham, I feel considerably embarrassed in that I feel that I have to oppose this amendment after having told him that I was in general sympathy with him on this part of the Bill. So far as the noble Baroness's intervention is concerned, perhaps the Minister would bear this in mind. We are concerned here with written contracts. It would be perfectly possible to have the contractual obligation to work on a Sunday which was entered into after the date of Royal Assent provisional. I realise that is a lawyer's point of view, but I think it is a valid one. USDAW might consider putting out pamphlets pointing out that as a possibility—or possibly the Ministry might do so: I do not know. It seems to me that would be preferable to writing anything into the Bill. The suggestion of the noble Lord, Lord Graham, seems to me to run up insuperably against the objections offered by the noble Lord the Minister.

Lord Graham of Edmonton

The noble Baroness, Lady Gardner of Parkes, hit exactly on the reason for the amendment; and that is the example of the employee who voluntarily enters into an agreement to work on a Sunday in the changed circumstances (shall we say?) of 12 months' time, and where there are financial inducements, but who finds in the event that it does not work out to suit him.

I take the Minister's point that employers have responsibilities and rights as well as employees, and this amendment argues for flexibility. I would imagine that when it comes to a question of working on a Sunday there will be much less flexibility on the part of the employer than on the part of the employee. I take the point that employers are likely to face problems. They need to be able to feel certain that it is within their gift to be able to say, "On every Sunday that I want to open I am guaranteed a workforce." It will not work out like that although it might: that is the sense of my amendment earlier, asking for a report to see how the Act had worked out in practice.

What in fact we are pleading for here is a modicum of flexibility. It talks of terms of notice: it does not say how long. I am very seized of the point made by the noble and learned Lord, Lord Simon, that it would appear that these matters entered into after the commencement of the Act can be provisional. I should be very grateful if he can take the time of the Committee for a moment or two to explain to us the context in which something entered into is provisional. Does it mean that it is terminable at the will of either party? If so, that would certainly meet my wishes. I should be grateful for one or two more words on this matter.

Lord Simon of Glaisdale

I am not sure that the noble Lord is not drawing me on to very dangerous ground. I certainly do not like giving instant legal opinions—indeed I am much too old to give legal opinions of any sort—but it struck me that might be a way of meeting the point that both the noble Lord and the noble Baroness have in mind: in other words, an agreement without prejudice to reconsideration, say, after two months. I am thinking quite loosely. I have no doubt that the USDAW lawyers will be able to work out something very much better, and certainly the very able legal department of the Home Office.

Lord Graham of Edmonton

The Minister, without giving anything away, said to the noble Baroness, Lady Gardner, that perhaps reference to earlier debates on these clauses might lead her to believe that, although nothing is being given away, all things are being considered with care at this stage. This is part of the consideration and there might very well be an outcome which would be acceptable to a great many people. It is in that spirit, again not putting words into the Minister's mouth, that I would beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Hayter)

I have to advise the Committee, before calling Amendment No. 26, that if it is agreed to I cannot call Amendments Nos. 26A or 26B.

Viscount Brentford moved Amendment No. 26: Page 3, line 44, leave out paragraph 2.

The noble Viscount said: I should like, if I may, to speak not only to Amendment No. 26 but also to Nos. 26A, 26B, 27 and 31. Amendment No. 26A: Page 3, line 44, leave out sub-paragraph (1) Amendment No. 26B: Page 4, line 1, leave out sub-paragraph (2) Amendment No. 27: Page 4, line 22, leave out ("an established") and insert ("a") Amendment No. 31: Page 4, line 40, leave out ("established")

The effect of these amendments is to remove the difference between established workers and others who are not established workers. If one looks for instance at paragraph 4 of Schedule 1, which deals with the dismissal of an established shopworker and says that it shall be regarded as unfair if the principal reason is that the shopworker has refused to do uncontractual Sunday work, if this amendment were accepted, it would mean that the dismissal of a shopworker shall be regarded as such.

We have touched on this issue a number of times of course, and I propose to skip very lightly over the points which have been made several times. However, there are one or two points I should like to make which, so far as I can see, have not yet been made to the Committee. In fact I have very limited experience in this Chamber, and what intrigues me at this moment is that much of what I am going to say has already been said by my noble friend the Minister in dealing with other amendments and I am "pinching" some of his arguments to use in support of my amendments because I have agreed with much of what he has said. So far as that is concerned, and to that limit of course, I am changing places with my noble friend.

There are a number of reasons why I believe that these amendments are important and would be clear-cut in what they do. First, I shall touch on the question of anomalies. We have had various examples of them raised here, but it seems to me extraordinary that if two people begin their employment on two different days—one employed the day before the Act becomes law and the other the day after the Act becomes law,—10 years later everyone would regard them as having been employed at the same time: but one of them is protected and one of them is not.

During the debates on this Bill I have been arguing that anomalies are perfectly acceptable and my noble friend the Minister has said, "Away with all anomalies: we shall not have any anomalies in this Bill." I am offering to help him now by removing an anomaly from this Bill and ensuring that it runs much more smoothly and clearly and along the lines of what he wants.

Lord Graham of Edmonton

Good for you!

Viscount Brentford

I should also like to make the point, as concerning anomalies, and particularly in respect of what the noble and learned Lord, Lord Simon, said earlier, that we are only considering shopworkers, and not others, in the course of this Bill. Further, I should like to point out that to give protection to shopworkers is not unique in the law. He will be far more aware than I of the protection afforded, for instance, to women and young people by Section 93 of the Factories Act 1961. We are not going against the current of legal thinking by providing unlimited and unfettered protection for people in this way. The principle of protection has already been conceded and this amendment simplifies and extends it, but makes it easier to work, in my submission.

Secondly, this amendment does not affect the principle of the Bill. It does not support what I am keenest on, which is keeping Sunday special: it permits complete deregulation of Sunday trading to continue. My noble friend Lord Stockton pleaded for protection for those who have least power, and I believe from my experience that shopworkers fall into that category. Thirdly—and here again I poach an argument from my noble friend the Minister—this Bill provides two categories of workers: those who are established and those who are not.

8.30 p.m.

My amendment removes these two categories and provides only one category of workers, and thereby simplifies the regulations. On Tuesday my noble friend made this argument in connection with another amendment, and I support his reasoning and am using it to support this amendment. Next I should like to point out that the schedule, which has been spoken against quite vehemently by certain members of this Committee, would be greatly simplified. My noble friend Lord Boyd-Carpenter and the noble and learned Lord, Lord Simon, have certainly commented on it. The removal of this distinction between established workers and others will make the schedule run much more easily. My noble friend the Minister has already undertaken to look at it and this would simplify his job a great deal.

As my fifth point, I should like to touch on the question of employment contracts. The Bill seems to me to write an extra condition into the employment contracts of those who are not established workers and I submit that this is not the right time for such an additional regulation to be made; this condition that, although there is no contractual obligation to work on Sundays, the employer has the right to make employees do so—

Lord Simon of Glaisdale

May I ask the noble Viscount where he finds that?

Viscount Brentford

It is in the Bill. It seems to me that there is no condition in an employment contract for a new employee in a job in retailing to work on Sundays, and if this Bill is passed that condition will be written into the employment contract because the employer will be able to force the man or woman to work on Sundays.

I should also like, while I am talking about them, to make one or two other points on employment contracts. My noble friend Lord Boyd-Carpenter was, of course, absolutely right on Tuesday when he said that an employee would be able to ask for a term to be written into the contract, whereby he did not have to work on Sundays. But I seriously ask whether in practice he would. To quote another phrase of my noble friend Lord Stockton, these are the humbler people of the employment industry and many of them would not dare to ask for special conditions to be written into the employment contract. Furthermore, I would question how many shopworkers do not have any written employment contract at all.

My last point is that I believe that without this amendment there would be increased discouragement to recruiting for the higher echelons of, in particular, the management side of the retail industry. I have had expressions of anxiety put to me about the calibre of the future management with this new provision for Sunday working coming in. I am sure that my noble friend the Minister does not want to discourage bright youngsters from going into the retail industry and, particularly, from taking up careers in the management side of retailing. Managerial skills will be needed as much in the industry as ever before. Those are six reasons why I believe these amendments that I have proposed should be accepted by the Committee. I beg to move.

Lord Simon of Glaisdale

I have considerable sympathy with this amendment, on the ground that anything that lightens and mitigates the complication of this schedule is to be welcomed. But I do not, I am afraid, follow the noble Viscount when he says that the employer can force the employee to work on Sunday. All he can do is to hold the employee to a contract to work on Sunday, just as the employee can hold the employer to a contract to employ him on Sunday.

That contract arises in two ways. The first is if there was a pre-Act contract to work on Sunday, whether written or unwritten, or, as the noble Baroness indicated earlier, to be deduced from conduct, and that merely continues. The other is a new written contract to work on Sunday. It is only in those two circumstances where there is a bilateral agreement that there is any compulsion to work on Sunday.

On the other hand, as I have said, there seems to me to be a good deal to be said for this amendment. When I looked at this part of the schedule with considerable bafflement, it was obvious that the aim of the draftsman was to ensure that the pre-Act shopworker continues to be employed as such up to the attempted dismissal (paragraph 4) or other penal action (paragraph 6). When I originally tried to see what the draftsman was attempting to guard against, I could envisage only two situations, but the noble Lord, Lord Wolfson, on another amendment mentioned a third, though not in this connection. Of those three only the first seems to me to have any weight and it can be much more easily accomplished than by this extremely convoluted provision.

The first is where there is a change of employer. The shopworker at the time of the passing of the Act is employed by employer A. He subsequently changes to employer B and this provision which the noble Viscount seeks to omit states that in those circumstances he cannot claim the protection of the Act. It seems to me to be right that he should not be able to do so, but, as I say, it also seems to me that that could be far more easily accomplished by a redrafting.

The second case that occurred to me was a change in the nature of the employment. The shopworker starts as a shopworker, then changes his employment to, say, a separate accounts branch under the same employer, and later goes back to shop work. The noble Lord will tell me whether I have got this wrong. That seems to me to be one of the things that the draftsman had in mind, but it is so remote a circumstance that it is certainly not worthwhile going to all this trouble to deal with it.

The third case is that mentioned by the noble Lord, Lord Wolfson, in another connection, where the employee leaves employment with employer A and subsequently goes back to it. Again, I admit that I had not originally envisaged that, but it is something that might happen. I should have thought that it is so rare a circumstance that it could be safely disregarded. I hope that the noble Viscount will give the noble Lord a chance to look at this provision if he thinks there is anything in what I have said, and not press the amendment.

Baroness Seear

I should very much like the opportunity of supporting the amendment put forward by the noble Viscount. I apologise for the fact that I am coming into the Committee as I recognise at a rather late time. Unfortunately, I was held up with obligations I had entered into before I knew that the Committee was going to be held today. We must be extremely grateful to the noble and learned Lord for elucidating the legal points and raising possible legal problems. But we are not really talking about the refinements of law in this matter. What we are talking about is whether a woman who goes into the retail trade after the introduction of this Act is going to be forced by the terms of her contract—of course it is by the terms of her contract—to work on Sunday.

I know the argument is that if she does not work on Sunday she should not enter into the contract to work on Sunday. Let us get to the level of reality. We are talking about a very large number of women, most of them married women at an unskilled level, who have very few other opportunities of employment and for whom the retail trade has been an absolutely essential opportunity to earn some money. That is what we are really talking about. If they are presented with a contract which requires them to work on Sunday they are not going to go in and say, "Yes, I should like to have the job very much, but I am not going to work on Sunday". They know perfectly well that in the present conditions of unemployment, put politely or not put politely, the person interviewing them will say, "Sorry my dear, there are heaps of people who will. Goodbye". That is what we are really talking about.

It is one thing to say, as I have heard said in discussing the Bill, that other people enter into contracts which involve them working on Sunday—air hostesses—but the life and attitudes of air hostesses are miles apart from the lives and attitudes of most of the women working in the retail trade. The reality is that if this passes as it stands, a very large number of women will have to accept contracts to go to work on Sunday; otherwise they will not get any work at all. That is the reality. Therefore, I do not wish to see this happen. It is most unfortunate if the only oportunity to work involves working on Sunday for people who have no desire to do so. Therefore, I should like very strongly to support the amendment of the noble Viscount.

8.45 p.m.

Lord Glenarthur

I have listened with care to the views that have been expressed both by my noble friend Lord Brentford and just now by the noble Baroness, Lady Seear. When he introduced the amendment my noble friend went some way towards indicating that the arguments on drawing the line, if that is the right turn of phrase to use, between those who would have been employed before the time the Act comes into force and those who would be employed subsequently had been debated at some length in the broadest terms on Tuesday and that I had then made quite clear to the Committee that I proposed to examine with the very greatest care all the arguments that had been deployed. I can if the Committee feels it appropriate rehearse some of the arguments that I deployed then again tonight. I am sure that my noble friend will realise that the undertaking I have given to examine carefully the points that were made was made in good faith and that I think the point he is trying to make is very close—not identical because it comes in a different part of the Bill—to the point which was made by my noble friend Lord Renton.

I understand the point that my noble friend made about simplification and many of the other points that he expressed in his list of six; but when it comes to the question of an extra condition on contracts, I very much agree with the noble and learned Lord, Lord Simon of Glaisdale, that there is absolutely no obligation in the Bill on shopworkers to work on a Sunday—none whatsoever. The obligation applies solely to contracts. I cannot feel in any sense that the theme of the amendment is very much different from that which was expressed by my noble friend Lord Renton.

The noble and learned Lord, Lord Simon of Glaisdale, raised three points upon which, so far as I can possibly tell, I believe him to be absolutely right. Certainly, on the question of whether it is the same employer or the nature of the employment, if the nature of the employment changes, the employee would lose his protection, if I have it the right way round. That is an essential part and the noble and learned Lord was quite right to make those points. I shall study his points with care but I believe him to be absolutely correct.

I am reluctant to rehearse the many arguments—

Lord Simon of Glaisdale

The noble Lord is very good to say that he will look at this. My point was that two of them were so remote that they are not worth troubling about, and the only one that is worth troubling about can be dealt with much more simply.

Lord Glenarthur

I am grateful to the noble and learned Lord. That again fits in with the whole question of the drafting of the schedule which I have said I shall look at to see whether or not it can be simplified. I do not know yet precisely how it can be, but I have given that undertaking. I am reluctant to embark upon a long debate setting out the reasons that I rehearsed before. I hope the Committee will accept that, and that the noble Viscount will not press the amendment.

Viscount Brentford

I thank my noble friend the Minister. I agree with what he says and I am quite content to rely on his undertaking. My name was below that of my noble friend Lord Renton on his amendment. There were, however, quite a number of points that I made which had not previously been made in this debate. I hope that my noble friend will take those into account in considering the protection of shopworkers.

I should perhaps add that when talking about being forced to work on Sundays I was using a shorthand phrase for the fact that if he did not work on Sundays without having any contractual written obligation to do so, he could be dismissed without compensation. I was just using a shorthand phrase for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 26A to 28 not moved.]

Baroness Turner of Camden moved Amendment No. 28A:

Page 4, line 25, at end insert— ("Any agreement by a shop worker to do work on a Sunday may be withdrawn by the shop worker after one month's notice.").

The noble Baroness said: This amendment covers in very simple terms the situation of a shopworker who undertakes to work on a Sunday but then decides that he or she would prefer not to do so. I know that we discussed this earlier this evening but I should like to make one or two points on this amendment because I think it is important.

In the first place, as the noble Baroness, Lady Seear, has so graphically illustrated, many women have no alternative but to opt for employment even though when opting for that employment they are going to have to work on a Sunday. Many women may quite honestly take on such a commitment and then find thereafter that they have great difficulty in carrying out the commitment to work on a Sunday—not only women, but men as well. The amendment provides an opportunity for a shopworker to withdraw his or her agreement to work on a Sunday by giving one month's notice. That seems quite fair and reasonable to me because the one month's notice gives the employer the opportunity, if he wishes to do so, to make some alternative arrangements. I do not share the view of the Minister that an arrangement of this kind—a similar kind that was discussed earlier—is in any way particularly unfair to the employer.

We are, as many noble Lords have indicated when debating this Bill, operating now in a situation where there is a large amount of unemployment and where other labour is available to work on a Sunday if the person concerned is unable to do so for whatever reason. Moreover, when the employee enters into a contractual arrangement with the employer, he or she really is not in a position of equality, as has already been demonstrated. The employee wants the job, and if he or she is not prepared to accept the stated conditions then he or she will not get that job—and rarely is alternative employment available.

This amendment would provide an opportunity for somebody who honestly and fairly has undertaken to work on Sundays to get out of that commitment if, because of domestic commitments or otherwise, he or she finds it impossibly burdensome to meet that obligation. It would also give the employer the opportunity, by the provision for one month's notice, to make alternative arrangements. I beg to move.

Baroness Ewart-Biggs

I should like briefly to support this amendment and to build on what was said by the noble Baroness, Lady Seear, in respect of the enormous importance to women of finding jobs within the retail industry. I remind the Minister that at one point he said that shops can only be run on the basis of goodwill between employees and employers. Those two attitudes contribute much to this amendment being a very good amendment.

Let us consider the case of a married woman who is a shopworker and whose family circumstances change because she and her husband separate or because there is some kind of problem for her as a parent. She may suddenly find that she can no longer be absent from the home on Sundays and that she should be there with her children, because her husband is no longer at home or because of some other change in her family circumstances. She may have undertaken to work on a Sunday in perfectly good faith, when her life was fairly well organised, but now finds that her life is no longer well organised and that her presence at home on Sundays is suddenly necessary. She could by this amendment give a month's notice to her employer, and by that procedure being followed the good relationship that the Minister has described in connection with previous amendments would be maintained. There would be fairness shown to women who need such jobs but who are very often mothers as well and therefore have a duty at home; and that duty may frequently be on a Sunday.

Lord Simon of Glaisdale

This amendment seeks to do in another way that which the noble Lord, Lord Graham, sought to do with an earlier amendment. I hope that the noble Baroness will forgive me if I say that if I had to choose between the two, I should prefer the noble Lord's amendment.

Lord Graham of Edmonton

It has gone now!

Lord Simon of Glaisdale

There is the objection to this amendment—and this is really to elaborate on what was said earlier by the Minister—that such a provision could work very unfairly against an employer. Take, for example, the case of a small petrol filling station that has a shop, and the proprietor of which wants an attendant to work three days a week, including Sundays. One can take any figure one likes; it could be three half-days per week, including Sundays.

Even if the proprietor is given a month's notice to find an alternative employee for the Sunday work, his whole work schedule may be thrown out. In fact, the proprietor may find it difficult to employ somebody willing to work only one day a week. That seems to me to be the objection to either amendment. However, as I have said, if I had to choose between the two, I should prefer the noble Lord's proposal for withdrawal in writing.

Lord Glenarthur

I listened with care to the comments of the noble Baroness, Lady Ewart-Biggs, and to the remarks made earlier by the noble Baroness, Lady Seear, concerning women who may need jobs to fit in with the circumstances that surround their families. What I say in connection with this amendment will not detract in any sense from my understanding of the general proposal that the noble Baroness makes.

Amendment No. 28A would enable a shopworker who had entered into an agreement to work on a Sunday to unilaterally change his or her mind. As the noble and learned Lord, Lord Simon of Glaisdale, has just remarked, a similar amendment has already been proposed by the noble Lord, Lord Graham. It was not accepted by the Committee, or maybe the noble Lord withdrew it.

Lord Graham of Edmonton

It was withdrawn.

Lord Glenarthur

I hope that this amendment similarly will be withdrawn. I share the view of the noble and learned Lord that the earlier amendment was perhaps the better of the two, if there was any preference to be accepted.

If employees are allowed unilaterally to change their minds about Sunday working, then employers will be placed in an impossible position, as they would not be able to rely on any permanent commitment to Sunday work. They would be put in the weakest of bargaining positions. Moreover, it would be very difficult for employers to run their shops, or their garages in the way that the noble and learned Lord illustrated. They could not run them efficiently and would incur additional costs.

I accept the comments made by the noble Baroness, Lady Ewart-Biggs, about goodwill towards employees, but I cannot accept that such goodwill should be so totally loaded against the employer. I fear that that is what the effect of this amendment would be. It would make it very difficult to run a business. If the amendment would make it difficult to run a business, it could make it equally difficult to attract employment in the way that we all wish to see.

Lord Graham of Edmonton

If the Minister will allow me to intervene, he makes a fair point about the arbitrary nature of an employee exercising his or her rights, if this amendment were to be passed. Take the case of the employee who comes to terms with a change in his lifestyle because his employer insists on Sunday working but then, because of the exigencies of his business, decides not to open on Sundays. The situation there is that, by force of competition, the employer arbitrarily declares to the employee, "I do not now want you to work on Sundays", even though the employee's lifestyle has already been reorientated towards Sunday working.

Lord Glenarthur

It is true to say that in many walks of life—and not just in shops—circumstances change, and it is possible for a business to want to alter its approach in one way or another, whether that business be engaged in the retail trade or in any other. However, I do not accept that employers are necessarily such difficult people when it comes to a general change in an employee's family circumstances such as that described by the noble Baroness, Lady Seear.

I am not sure that the illustration given by the noble Lord, Lord Graham, was not one that would indicate that an employer would be in breach of his contract. I believe that may well be the case. I hope that that satisfies the noble Lord.

9 p.m.

Baroness Gardner of Parkes

What worries me very much about this amendment is its absolutely unlimited nature. As I read it, a shopworker could keep giving one month's notice. The shopworker could regularly keep saying to the employer, "Yes, I will work on Sundays" and do a few Sundays, then give another month's notice and be off again. There is no suggestion in the amendment that it should be a once-only notice.

An extraordinary family situation could arise, which I think is a worrying thought, and someone's circumstances change dramatically. I hope an industrial tribunal would look kindly on a case brought where there was a dramatic change in circumstances. Usually a reasonable attitude is expected on the part of the employer at least to take circumstances into consideration; for example, if an employee was suddenly widowed and had a family to cope with on Sundays.

However, the amendment as drafted is totally unlimited in that an employee could give the one month's notice two or three times a year. An employee could be hopping backwards and forwards on Sunday work and that would be a hopeless situation for an employer in trying to manage his workforce.

As I mentioned earler, I think there is a case for the once-only trial system whereby an employee going on to Sunday working at the beginning could say, "I will give it a try". There could be an agreement at the beginning that this should be a once-only trial. If employees found it was not possible it would not be held against them in employment dismissal terms.

Baroness Seear

I want to add a point to what was said by the noble Baroness, Lady Gardner, and by a number of people while I have been listening to this debate. I refer to the assumption that provided an employee is protected against unfair dismissal at a tribunal he is all right, but the fact is that reference to an industrial tribunal rarely results in reinstatement. It results in some degree of compensation, but if one's livelihood depends on having a job in the retail trade winning an unfair dismissal case does not help. It tides you over for a while but it is rare that an unfair dismissal case results in reinstatement. It is no good saying that an employee will be protected by an industrial tribunal and that it deals with the matter. It does not.

Lord Glenarthur

I take the point that the noble Baroness is making but I do not understand in that case why there should be such a difference between those in the retail trade and employees elsewhere who presumably are affected by the same set of rules, so to speak.

Baroness Seear

I follow the noble Lord in that sense, but we have all been arguing for the protection of women in the opportunity to refuse to work on Sundays. The argument refers to where a woman refuses to work on a Sunday and is unreasonably denied the right not to work on a Sunday—as was said, perhaps when there is a bad time at home and she does not want to work on Sundays—and the employer, instead of saying that it is all right and it will not be held against her, says, "Sorry, we cannot employ you any longer if you cannot work on Sunday". It is no adequate compensation to that woman to say that in those circumstances she will win an unfair dismissal case, because she does not get her job back. That is the argument.

Baroness Gardner of Parkes

The point must be made here that in most of the cases I see people are not applying for reinstatement. Compensation is what most people are asking for. However, an industrial tribunal does have the right to order reinstatement.

Lord Glenarthur

May I clarify one point for my noble friend Lady Gardner of Parkes concerning the trials, which was the point in which she was interested. There is no reason why the employer and the employee should not agree in the contract for a trial of, say, three months or whatever. There is nothing to stand in the way of that.

Lord Coleraine

The point made by the noble Baroness, Lady Seear, is surely a good one. My noble friend is wrong. Even if the tribunal orders reinstatement—and I think it is right that they rarely do—there is no compulsion for an employee to be reinstated. I am sure the law recognises that where an employer and employee do not get on the only solution is compensation and not reinstatement.

I do not know whether this is valid, but it seems to me that, if an employer sacks an employee in such circumstances, in effect that means that forever after the likelihood is that the employee is not going to be an established shopworker, for the purposes of this Bill, and will lose the rights that he or she might otherwise have.

Baroness Turner of Camden

I have listened very carefully to the debate and have decided not to press my amendment. On the other hand, I still think that there is a great deal of validity in what has been said by a number of noble Lords in the debate.

In particular, I agree with the point made by the noble Baroness, Lady Seear, and the noble Baroness, Lady Gardner, concerning a woman who starts working on Sundays and, possibly through domestic circumstances, cannot continue. There may be a case, as has been said, for a pilot arrangement or something of that sort. Perhaps it would be possible to return to this point at Report stage, but in the meantime I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 28B not moved.]

Lord Graham of Edmonton moved Amendment No. 28C:

Page 4, line 25, at end insert— ("( ) In the case of a dismissal regarded as unfair by virtue of paragraph 4(1) above the tribunal shall automatically remedy the complaint by making an order under sections 69(2) and 69(3) of the 1978 Act. Such an order shall be mandatory upon the employer subject to account being taken of the wishes of the complainant as to the nature of the order to be made.").

The noble Lord said: This amendment takes forward part of the argument that we have just been engaged upon. It attempts to do what the noble Lord opposite said might very well be exceedingly difficult to do; that is, in the event of a dispute, hearing, or award it could be exceedingly difficult for the employee to work again. I am referring to the atmosphere, loss of confidence and morale. As the noble Baroness, Lady Gardner of Parkes, said, most people come to the conclusion that the best way of settling matters is to endeavour to get the best compensation in cash—six months' wages, or whatever it might be. Around only 5 per cent. of successful complainants against unfair dismissal end in the worker being reinstated or re-engaged by their employers. I have references here which I would gladly give if necessary. However, that is our general view.

The amendment is saying that there are special circumstances. We are dealing with a category of workers and a change in their life style which, frankly, could be traumatic. I do not want to be too dramatic but it is a major upheaval. In those circumstances, we are saying that if the cause of dismissal is held to have been an unwillingness to work on a Sunday and that is heard by a tribunal and judgment is given in favour of the employee, then this amendment ensures that at the wish of the employee he or she should determine whether he or she wishes to be reinstated or to have compensation. In the present climate jobs are very difficult to obtain, but it may be accepted, as I accept it, that most employers are not unreasonable, even though there may be disputes and harsh words and strict company policies may be in force.

In fact, if the employer is fair, but he has put his case and it is held that it was wrongful dismissal, then I am hoping that this amendment will maintain harmonious relations—I am not talking about nasty employees, mischief-makers, trouble-makers or lazy people but about good workers who do not wish to work on a Sunday and are able to prove to a tribunal that the reason for their dismissal has been their refusal to work on a Sunday. This amendment simply gives the tribunal the possibility of ordering reinstatement or compensation at the option of the employee. I beg to move.

Lord Glenarthur

This amendment would require an industrial tribunal which has found a dismissal to be unfair under paragraph 4 to make an order that the employee be reinstated in accordance with Sections 69(2) and 69(3) of the Employment Protection (Consolidation) Act 1978.

I feel that it is completely unreasonable to tie the hands of a tribunal in such a way. For all cases of unfair dismissal brought under the current legislation, discretion is given to the tribunal to decide upon the appropriate remedy according to the facts of the individual case. Present legislation allows a tribunal, if it has found proven a case of unfair dismissal, to order the employee to be reinstated—that is, to be re-employed by the same employer in the same job, or be re-engaged. In other words, to be employed by the same or a connected employer in a comparable job; or to be awarded instead the financial compensation which was mentioned just now by my noble friend Lady Gardner.

An industrial tribunal will order reinstatment or re-engagement only if the employee asks for it. There is really no reason why dismissals which come under paragraph 4 of this schedule should be treated any differently from unfair dismissals for reasons covered by the 1978 Act. Moreover, surely it is also unreasonable to take away from a tribunal the discretion to award the most appropriate remedy in the light of the facts brought to its attention. In many cases the employment relationship will have broken down completely and it would be unreasonable to expect the employer to reinstate the worker. Also, because of the breakdown of the employment relationship, many employees themselves will not wish to be reinstated.

I am not clear from what the noble Lord has said whether what he is trying to do with this amendment will enable shopworkers who do not wish to be reinstated to decide to accept an alternative remedy. I suggest that in essence what the noble Lord is trying to do will tie the hands of a tribunal in a most unrealistic way and that to proceed in this manner would be detrimental to all concerned.

Baroness Seear

May I ask the noble Lord for information? My memory is beginning to fade with old age, but I think that at one time it was possible that if a tribunal ordered reinstatement, an employer could avoid reinstatement by paying additional compensation. I am speaking absolutely from memory and such a course may never have been possible or may have ceased to be so, but I think that it is rather important in this context.

Lord Glenarthur

The memory of the noble Baroness is much longer than mine. I do not know the answer to her question but perhaps I can let her know in due course.

Lord Graham of Edmonton

I intend to withdraw the amendment but I want the Committee to know that we believe that there are far more employees than employers who are likely to be hurt by the operation of this Act. I am not talking about employers who are vindictive. Employers have a business to run, a profit to make and they have to survive. I am talking in terms of situations where hard decisions are made by an employer who opens his shop and then the Act comes into force.

The Minister is right that the amendment seeks to tie the hands of a tribunal. If the tribunal is satisfied that the employee is right, automatically it could make an award and allow the employee the option of the right to reinstatment or to cash. I have listened carefully to what has been said. In fact, I shall sit down and listen again!

Lord Glenarthur

Before the noble Lord withdraws his amendment, which I think he is about to do, let me say to the noble Baroness, Lady Seear, that I believe that she is right. If a tribunal orders reinstatement but the employer disobeys the order, an additional award will be made.

Lord Graham of Edmonton

I am grateful to the Minister and even more to the noble Baroness for getting that put on the record. That may help those outside the Committee who are looking for amelioration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Baroness Gardner of Parkes moved Amendment No. 29: Page 4, line 27, after ("64(l)") insert ("a)").

The noble Baroness said: I beg to move Amendment No. 29. I shall deal with Amendment No. 30 also which is in my name and relates to the same issue. Amendment No. 30: Page 4, line 30, leave out ("or has attained retiring age").

I put these forward as probing amendments. I am quite unable to understand the Government's thinking. The additional protection suggested in paragraph 5 on page 4 of the Bill would cover part-time workers and people over retiring age. I suppose that logically I should try to delete any major change in employment law affecting either category, but as I have such personal sympathy for part-time workers I should like to see them protected under the legislation. However, I feel quite differently about people over retiring age.

There is so much youth unemployment that we do not want to change employment law to give additional protection to people who should have retired and left the vacancy for a young person. That is why I cannot understand that the Government want to introduce a new protection for people over retiring age which is totally out of line with all existing employment legislation. My amendments seek to remove the additional protection. I beg to move.

Lord Graham of Edmonton

I smiled when the noble Baroness said that we should not make provision for people over 65. In her absence on another day of this Committee stage great play was made by the noble Lord, Lord Boyd-Carpenter, and others about the nonsense of limiting a person's working life to the age of 65. As was pointed out, in this Chamber there are many good examples of people who work beyond that age—and I am not yet 65! Whatever figure is suggested, the other side argue that it is wrong. I shall be interested to hear how the Minister deals with the point of the noble Baroness, after having expressed great sympathy for what the noble Lord, Lord Boyd-Carpenter, said.

Lord Glenarthur

The amendment is intended to prevent established shopworkers over retirement age from making a claim for unfair dismissal if dismissed for refusing Sunday work. My noble friend has been good enough to say that it is a probing amendment. I shall endeavour to explain where a misconception in her mind may have arisen about the basis of this schedule generally.

We believe that the more generous treatment proposed for established shopworkers is fully justified. It is also soundly based on relevant precedent. Under the 1978 Act employees over normal retirement age can bring a case of unfair dismissal if the reason for dismissal relates to the employee's membership or non-membership of a trade union or to his participation in union activities. Moreover, workers over normal retirement age are not debarred from complaining under the Sex Discrimination Act 1975 or the Race Relations Act 1976. We believe that the right not to work on a Sunday is sufficiently important to be regarded as analogous to those fundamental rights and that the exclusions that apply to normal unfair dismissal cases should not apply to established shopworkers if they are dismissed for refusing Sunday work.

In a nutshell, that is based on trade union type legislation and not on the other legislation to which I referred—sex discimination, race relations, and so on. That is why the safeguards are built in in that way.

Baroness Gardner of Parkes

I thank the noble Lord for his reply. There are still a few points in it which do not satisfy me. Although people over retirement age—as he mentioned—can bring a case, as I understand it no compensation is payable to anyone over retirement age; compensation is reduced by so much per year for every year when one approaches retirement age. I understand that no compensation was payable for unfair dismissal over retirement age. However, if I am wrong I should like to be corrected on that.

The other point is that these over retirement age shopworkers can be dismissed for any other reason without there being unfair dismissal. There does not have to be any reason for dismissing them. If they are over retirement age they can be dismissed, as I understand it, at any time, the provisions of unfair dismissal do not apply to them, apart from those rare instances that the Minister has just mentioned.

I shall study the answer given by the Minister in detail. I should like at some stage to have an answer from him on whether I am right in saying that no compensation would be payable to these persons even if they had such a case. I do not know whether the Minister is able to comment now or whether he would rather reply at another time.

Lord Glenarthur

I shall certainly consider the views of my noble friend—messages arrive with great speed in your Lordships' House. I understand that compensation is made up of two elements: a basic award which is not payable if the employee is over retirement age; and a compensatory award which is payable in all cases. Perhaps I can expand on that point to my noble friend in writing.

Baroness Gardner of Parkes

I thank the Minister. I can check from my own books on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 to 32 not moved.]

Viscount Davidson moved Amendment No. 33: Page 5, line 6, leave out ("sub-paragraph (3)") and insert ("paragraph 8").

The noble Viscount said: This is a purely technical amendment to correct a printing error in the Bill. I am sure that your Lordships have realised that the words "sub-paragraph (3)" do not make sense because there is no sub-paragraph (3) in paragraph 7. Clearly the correct words are "paragraph 8". I beg to move.

Lord Simon of Glaisdale

There is obviously a mistake in the Bill but I wonder why it is subject to paragraph 8. Paragraph 8 says that an established shopworker can contract out of his rights under the Bill. As such it seems to me merely declaratory because the Bill has said earlier that he can contract out by writing on or after the Act comes into force.

I confess that I have not looked up the three sections of the 1978 Act which are mentioned in subparagraph (2) of paragraph 7, but I should have thought that paragraph 8 refers back to the definition of an established shopworker. I do not at the moment see why those three sections and Part IX should apply subject to paragraph (8).

Lord Renton

As we are discussing this subsection (2) in the course of dealing with this simple amendment to correct a printing error, I hope that it will not be inappropriate for me to say that I find sub-paragraph (2) very strange indeed. It refers to three sections of the 1978 Act, and asks us to assume that paragraph 6 of this schedule was contained in Part II of the 1978 Act. It is a mind-bending operation. In my view, if not only parliamentarians but the users of legislation are to receive any help from drafting at all, then this is just the kind of drafting that should be avoided.

Viscount Davidson

I am sure that noble Lords who have spoken will not expect me to give an answer off the top of my head, let alone from anywhere else at the moment! My noble friend Lord Glenarthur has already said that he will look at the drafting, and this matter probably comes under the drafting point that he mentioned earlier. All that I can say at this stage is that I shall ensure that my noble friend Lord Glenarthur writes to both the noble and learned Lord and the noble Lord who have spoken on this point.

On Question, amendment agreed to.

The Deputy Chairman of Committees

Before we come to Amendment No. 33A, I have to tell the Committee that if that amendment is agreed to I cannot call Amendments Nos. 33B or 34. I call Amendment No. 33A.

Baroness Turner of Camden moved Amendment No. 33A:

Page 5, line 17, leave out paragraph 8, and insert— ("8. Any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports

1. (a) to exclude or limit the operation of this Schedule; or
2. (b) to preclude any person from presenting a complaint to, or bringing any proceedings under this Schedule before an industrial tribunal.").

The noble Baroness said: As has already been indicated, paragraph 8 provides for the opportunity to contract out of obligations under the Employment Protection Act. It is because we do not want that to stand in the Bill that we have tabled this amendment. The effect of Amendment No. 33A, which stands in my name, is to write into the Bill the actual provisions of Section 140(1) of the Employment Protection (Consolidation) Act 1978. The wording is exactly the same. The Act says:

1. "(a) to exclude or limit the operation of any provision of this Act; or
2. (b) to preclude any person from presenting a complaint to, or bringing any proceedings under this Act before, an industrial tribunal".

Any agreement which provides for that would be voided under the terms of Section 140 of the Employment Protection Act.

What we want to do under the amendment is to continue to preserve for employees the right to sue under the Employment Protection Act and not to be under pressure from employers to negotiate away that right. I must say, for your Lordships' information, that the TUC is particularly concerned about the effects of this paragraph in the new Bill. It says that, unlike the normal unfair dismissal provisions, the Bill allows employers to insert terms into the contracts of employment of shopworkers which waive these new rights to lodge or pursue industrial tribunal claims on Sunday working.

It also says that under the unfair dismissal provisions of the Employment Protection Act, which I have just read, any such terms in employment contracts are automatically null and void. But if this is expunged as far as shopworkers are concerned under this paragraph, then it is not null and void and it is possible for employees to "negotiate"—in inverted commas—because very often, as we have just heard, employees do not have all that much freedom when it comes to negotiation, particularly if they need the job. It is possible for employers to bring pressure to bear upon employees to get them to waive rights which appear to be theirs under the legislation, under the Bill, as if they were established shopworkers, but which in fact they can be pressurised—and I use that term advisedly—into giving up if the employers apply sufficient inducement to them to do so.

The TUC has further told me that it is firmly opposed to the principles of contracting out of employment rights since, if that practice were to become accepted, it would undermine employment rights everywhere else and produce a very unfortunate precedent for other pieces of legislation.

Therefore, I emphasise that from our point of view this is an important amendment. We want to preserve the rights that exist already under Section 140 of the Employment Protection Act, to which I have just referred, and we do not think that it should be open to employers and employees to negotiate for those rights to be waived. It is a very bad precedent indeed and I commend the amendment to your Lordships on those grounds. I beg to move.

9.30 p.m.

Lord Simon of Glaisdale

I have already indicated that it is at least arguable that the existing paragraph 8 is for no more than the avoidance of doubt. As such, I personally have no objection to it, but I would ask the noble Lord the Minister in any event to look sympathetically at the substance, though not necessarily at the actual drafting, of Amendment No. 33A in the name of the noble Baroness.

Modern legislation very frequently intervenes to limit complete freedom of contract between two people where they are likely to be inherently unequal in power. Very usual examples are landlord and tenant, and the noble Baroness herself mentioned the Employment Protection Act. Obviously, the thought behind that is not likely to be between two persons of equal bargaining power. In so far as I remember, whenever a statute intervenes in that way there is always a provision against contracting out. I only had time to look up one which I had in mind, and that was the Agricultural Holdings Act which says in Section 3: This section shall have effect notwithstanding any agreement to the contrary". Where the statute intervenes to prevent complete freedom of contract and to limit it in some respects, some such provision is almost inevitably necessary, otherwise you come full circle again to unequal parties contracting together under a new contract. Obviously this will not do in this form because there is already written in a contracting-out provision under the rather disliked paragraph about established shopworkers. Therefore, this would have to be subject to that. Otherwise, it seems to me a necessary provision of this schedule.

Baroness Seear

I should like to support the amendment moved by the noble Baroness, Lady Turner. I accept that there are aspects of employment protection which in general terms need looking at again. It is not all holy writ; it could well be revised in some respects. However, the way to do it is not to allow people to contract-out in, as the noble and learned Lord, Lord Simon, has said, agreements between unevenly weighted parties. I do not think that that is the right way to modify employment protection legislation because it leaves people open to very considerable exploitation.

Lord Glenarthur

I think that the noble and learned Lord, Lord Simon of Glaisdale, is quite right. Section 140, which prevents contracting out of the statutory rights, applies to the rights in the schedule. All that the present paragraph 8 does is to ensure that an employee can enter into a contractual agreement to do Sunday work. However, the purpose of the amendment would certainly be to prevent established shopworkers from waiving their statutory rights and voluntarily agreeing to work on a Sunday.

As regards the employer, these amendments, rather similarly to the earlier amendments that we discussed, would make it extremely difficult to run a shop effectively. Although established shopworkers could enter into agreements to work on a Sunday, they could not be enforced, and employers would be put in an intolerable position as they would never know whether their workers would turn up on a Sunday. Employers would be unable to rely on any permanent commitment to Sunday work, and would therefore be placed in the weakest of all possible bargaining positions.

One can readily envisage the difficulties that this would cause for employers, especially the small shop, and I suggest that it would again place a thoroughly unfair burden on employers. Because established shopworkers could not waive their statutory rights, they would not be able to enter into a binding contractual agreement to work on a Sunday. If established shopworkers wanted to work on a Sunday they would be put at a disadvantage compared with new recruits, who would be able to make a contractual agreement to work on a Sunday. Employers may therefore prefer to give Sunday work to those employees who they know will be obliged to work on a Sunday because of their contract.

We are, in a sense, on the same theme here as we discussed on earlier amendments—the intolerable load that it would place on the employers. I repeat what I said earlier, that I do not believe that at the end of the day this would serve the interests of either the employees or the employers. I hope that the noble Baroness will feel able to withdraw her amendment.

Lord Simon of Glaisdale

I hope that the noble Lord will consent to look at this point again. It is not really the same point we discussed before. It is really that if you limit in any way the power of perfectly free contract—and this Bill does limit to some degree the free contractual power of employer and employee—you need some such provision as this. I hope that the noble Lord will not close his mind to the matter, and will look at the debate in Hansard.

Lord Glenarthur

I shall certainly look at the debate in Hansard and study what has been said. I believe that notwithstanding the effect which the noble and learned Lord, Lord Simon, described, the main point which the noble Baroness expressed in her amendment would be the effect I have just described. I do not think that I can detract from that one bit. But I shall examine what has been said, though without any commitment.

Baroness Turner of Camden

I have listened carefully to what has been said, and in particular to the interesting point made by the noble and learned Lord, Lord Simon. I, too, hope that the Minister will look at the points made in the debate. The point I made was different from the point that the noble Lord made in reply to me. We are talking, as I understand it, about a specific provision whereby rights which exist in Section 140 of the Employment Protection Act can be waived as a result of an agreement between an employer and an employee—and an employee who is certainly not going to be in a position of equality when it comes to negotiation with his employer.

That is why we regard this as important, and I hope that the Minister will have another look at it. I do not intend to press it tonight because the hour is very late, but I think we shall have another look at this at Report stage. In the meantime, I hope that the Minister will perhaps have second thoughts about this. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33B, 34 and 35 not moved.]

Baroness Seear moved Amendment No. 35A: Page 5, line 19, at end insert—

("Time off in lieu of Sunday working

9. Any employee who has worked on five days during the week and also works on the Sunday following, must be given 2 days leave during the following week.").

The noble Baroness said: This amendment has a slightly different purpose from some of the previous amendments. The suggestion is that if an employee has worked for five days in the week preceding a given Sunday and he then works on that Sunday he should be given two days off in lieu in the following week.

The reasons for this amendment are several. One is that it will make employers think very hard before they decide to work on a Sunday. If they have to make arrangements of this sort, it is only when they are convinced that they will have heavy trading that it will be worth while calling people in on Sunday. This puts a brake on the introduction of Sunday trading, which, in itself, would be highly desirable. It is possible, and I think it will happen, that people who work on a Sunday will negotiate for double time on Sunday, as is the present practice. If that were accompanied with this amendment, there would be a considerable burden upon employers, which from my point of view would be desirable, before they asked people to work on Sunday, and they would have to think very hard about the real commercial advantages of so doing.

Although that is one reason for moving this amendment, it is not my primary reason. If we are to have Sunday trading it will present us with an opportunity to do something which a great many of us have been pressing for a long time; that is, to provide a much greater opportunity for a genuine sharing of work. There are a great many people who are out of work in the unskilled and semi-skilled grades who will not get back into full-time work ever. These are people who in many cases are quite capable of being able to cope with selling in a shop. The hope in introducing this amendment is that if the burden is put on the employer of providing two days off in lieu of Sunday working, that will be a strong incentive to employ people on a part-time basis to work at weekends. This will mean that people who are otherwise probably permanently unemployed would acquire part-time jobs, which would have considerable economic and social value to them. One would hope that it would be possible to combine this with an assurance that people who so worked would not have their benefits reduced. That would be a useful way of being able to improve the position of people who are otherwise permanently unemployed.

This would also make it easier for the people who are working a five-day week to have a normal weekend. It would mean that the housewife, of whom we have talked a great deal, who wants to be home on Sunday would be able to be at home on Sunday because the employer would have the part-time workers or weekend shift workers coming in. That would in many ways be a desirable development. It would be cheaper for the employers—they would not have to give the two days off in lieu—and it would be advantageous to the unemployed person because it would give him a job. If we are to have Sunday working this would be a desirable step. Such workers might become regular employees.

If I may say so in parenthesis, I have been slightly entertained with the concern of the noble Lord, Lord Glenarthur, about the employer being certain that people will come in to work. This is highly desirable from the employers' point of view, but a great many employers are familiar with the situation where employees do not come in to work all the time. I strongly suspect that if we have double time on Sundays what employers will really worry about is that people will not come in on Monday. I beg to move.

9.45 p.m.

Baroness Ewart-Biggs

I shall be interested to hear what the Minister has to say about this amendment. Obviously, it offers us a new idea and new concept about how this Bill is going to affect employees. It offers the idea that an opportunity for work sharing can be made available. Also I think that this amendment corrects the balance a little between the advantages to employers and employees. The noble Lord the Minister has spoken a lot about the problems that previous amendments would put on employers and how it would be impossible to run a business and so on if certain amendments which would advantage the employees were adopted. I think this is a very interesting amendment and I look forward to hearing what the Minister will have to say about it.

Lord Glenarthur

It was with great interest that I heard the last remarks of the noble Baroness, Lady Seear, about the difficulty of persuading people to come into work on a Sunday—

Baroness Seear

I was referring to the difficulties on the following Mondays.

Lord Glenarthur

Yes, or even a Monday. But the fact is that at the moment, so far as I understand it, there is no great evidence to suggest that there is difficulty in finding staff to carry out the work on either the Monday or the Sunday. Be that as it may, despite the fact that Sunday work appears to be popular the noble Baroness's point is directly concerned with Section 22 of the 1950 Act which provides that shopworkers are given time off in lieu if they work on Sundays. Perhaps to avoid confusion I could first of all explain that the Bill as drafted retains these provisions for young people at the same time as lifting them for adult shopworkers.

At the Second Reading debate the noble Baroness, Lady Seear, put forward the proposal which she is now raising in this amendment. As she described, her reason for doing so was that she believed that it would encourage shops to employ part-time employees on Sundays and that full-time staff would be discouraged from working on Sundays. At the moment shopworkers who are employed for more than four hours on Sunday are entitled to a day off in lieu. If they are now to receive two days off in lieu, as she suggested, then I would have thought it quite likely to encourage more full-time employees to work on Sundays and they would not be disposed to see Sundays staffed by part-time employees. But be that as it may, the Government believe that it really should be left to shopkeepers and their employees to decide who should work on Sunday and how those who do so should be compensated for the Sundays upon which they work.

The abolition of restriction on hours of work for adults and the removal of restrictions on trading hours will mean that, as for the majority of employees in other parts of our life in this country, conditions of employment will be decided by collective or individual bargaining. Employers and employees will be able to decide what suits their particular circumstances, whether it be to provide time off in lieu on a weekly or monthly or annual basis or to provide additional payment for Sunday working or whatever.

I cannot agree with the noble Baroness that matters like this should be decided by legislation. I believe this should be left to be decided between the employers and employees. That is why I hope she will not press the amendment.

Baroness Seear

Before the noble Lord sits down, are the Government contemplating getting rid of all the restrictions on hours of work of women in industrial employment? The restrictions on hours of work for women in industrial employment have existed since 1833. I am talking about the Factories Acts. The noble Lord talks about all other fields of employment and there being no legal restrictions on hours of work. There is extensive restriction on hours of female employment in manufacturing industry, and that has been so for over 100 years.

Lord Glenarthur

The noble Baroness may have misunderstood me. What I was suggesting was that it was perfectly reasonable to expect individuals to come to arrangements with their employers, within their contracts, on this whole substance. I do not see any particular reason why the retail trade should be so different in the way the noble Baroness suggests. I am not suggesting that we are going as far as the noble Baroness suggests. What I can say is that the Government propose to remove restrictions on women's hours of work in a sex discrimination Bill. I do not think that goes quite as far as the noble Baroness feels I am going here.

Baroness Seear

There is nothing exceptional in legal restrictions on women's hours of work: that is what I am saying. It has been the practice in this country for over a hundred years and the Government are not, as I understand it, leaving the hours of work in manufacturing industry to be determined entirely by collective bargaining.

Lord Glenarthur

I wonder whether perhaps the noble Baroness and I are talking at cross-purposes. What I am saying here is that as things stand the 1950 Act provides that workers in shops are given time off in lieu—on that I think we are agreed—and that, as the Bill is drafted, provisions for young people will remain the same and they will be lifted for adult shopworkers. I then went on to say that the abolition of restriction on hours of work for adults and the removal of restrictions on trading hours will mean that for the majority of employees in this country conditions of employment—and those, I think, are the key words—will be decided by collective or individual bargaining. Is the noble Baroness saying that individual bargaining in other industries does not take place?

Baroness Seear

I am not saying that individual bargaining does not take place, but I am saying that the law limits what you can agree in individual bargaining about women's hours of work in factories, and has done for well over a hundred years. The noble Lord is trying to pretend that to put any restriction at all on hours of work in the retail trade would put women in an exceptional position. I am saying that, so far as women's employment is concerned, not having restrictions puts them in an exceptional position.

However, I do not propose to press this tonight. I shall return to it at a later stage. The reason I moved it tonight was to ask the noble Lord whether he would think seriously about the benefits that would accrue from really trying to use Sunday opening as a means of developing for a considerable number of people the opportunities of weekend shift working or part-time working. That is really what it is all about. I do not want to be sidetracked on this other argument, although I am quite certain I am right in saying that it would be quite exceptional if there were no restriction on women's hours of work in the retail trade when there have long been restrictions, and still are, in manufacturing industry. However, that is not the major point. The major burden of this is to ask the Minister—and he has been very generous about saying that he will consider a number of the points that have been made—to think about this, because it seems to me that it would be a very good opportunity to provide work opportunities for people who would otherwise never have them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Schedule 1, as amended, shall he agreed to?

Lord Simon of Glaisdale

In 1975 a very strong committee on the preparation of legislation, the chairman of which was the noble Lord, Lord Renton, started off Chapter 6 of their report: Our terms of reference imply a widespread concern that much of our statute law lacks simplicity and clarity". In their recommendations, recommendation 8 said: In principle the interests of the ultimate users should always have priority over those of the legislators. A Bill should be regarded primarily as a future Act". I take part in only one or two Bills a Session, but a recent Session included the National Heritage Bill where one of the schedules—a vital schedule—was so incomprehensible that the noble Lord, Lord Kennet, moved to have it out of the Bill altogether, notwithstanding that that would have wrecked the Bill.

In the following year, 1984, we had the Housing and Building Control Bill, which the noble Lord, Lord Graham, will remember because as a newcomer to the House he had to deputise at an important stage of the Committee for the noble Baroness, Lady Birk, and he made an immediate impact on the House. There we had to struggle and finally, only after repeated debates and the noble and learned Lord the Lord Chancellor being brought in, did we get what was admittedly—admitted by Ministers—the incomprehensible Part I reprinted in the Statutes in Force in time in a form which could be understood by the council tenants who were affected.

Then, last Session, we had the Transport Bill and, again, one of the clauses was universally criticised as meaningless and unnecessary. Now we have this schedule which, I say with respect, is the worst of the lot. It has been stigmatised by my noble and learned friend Lord Denning, by the noble Lord, Lord Boyd-Carpenter, and by the noble Lord, Lord Renton.

I ask the noble Lord, bearing in mind the Renton recommendations, to consider paragraph 1, subparagraphs (2) and (3), and paragraphs 5 and 7 of this schedule and to say who he thinks the users of this Bill will be. One thinks first of shopworkers and shopkeepers, including small shopkeepers. Does he really think that they could make anything of those provisions? I have spent most of my life as a lawyer, but it took hours finding the right section of the 1978 Act, seeing how far it was amended by this schedule and then re-applying it to the schedule. I am bound to say that that seems to me to be an absolutely shocking way of drafting.

There is one other point before I make a few positive suggestions. The noble Lord said on Tuesday (at col. 223 of the Official Report): I do not know whether there is scope for improvements in the drafting, and I take the point that my noble friend Lord Boyd-Carpenter made. I shall see what can be done, but it is very much in the hands of the parliamentary draftsmen. That is absolute heresy. Many of us have argued for a long time that parliamentary counsel will continue to flout the wishes of Parliament, and the recommendations of the Renton Committee, unless they are put in some department which can pay effective attention to their method of drafting. That has not been done; but until it has been done it is the Minister in charge of the Bill who is responsible for its drafting as well as its contents. I hope that the Minister will recant that heresy and assure us that this schedule will be recast in a form that can be understood by users and at least by Members of either House of Parliament. Speaking for myself, if it is presented in this form on Third Reading I shall find myself compelled on that very ground, although I am strongly in favour of Clause 1, to vote against the Bill.

10 p.m.

I have one positive suggestion in addition to the general suggestion of redrafting. Some of these most impenetrable paragraphs and passages such as subparagraphs (2) and (3) of paragraph 1 and the other ones that I mentioned should be recast as a Keeling schedule. A Keeling schedule is generally used only where a complete Act is amended and the amended Act is then reprinted as a schedule to the amending Act, distinguishing typographically between the original parts, the parts which have been superseded by the amending Bill and the superseded parts—three types. I see no reason why it should not be done with these provisions even though they are only parts of a Bill. But something must be done. I say with all respect that it is quite intolerable that Session after Session a Bill is presented, and your Lordships are asked to take responsibility for it, which is bound to be quite incomprehensible to the people who are affected by it. It is the very negation of parliamentary democracy.

Lord Renton

If I may say so, I think that the noble and learned Lord has done a great service by saying what he has just said. I should like to support him very warmly indeed. Perhaps I may add one short point. Sub-paragraph (2) of paragraph 1 which purports to be an interpretation provision is the worst interpretation provision that it has ever been my misfortune to have to study.

The discussions that we have had on this first schedule do to my mind increase our gratitude to my noble friend Lord Glenarthur for his undertaking to have its drafting reconsidered. As to this question of whether he or the draftsman is to have the last word, may I tell him the solution? All that he has to do is to say to the draftsman, "I do not understand this and I do not think that the shopkeepers and other people who are going to have to obey the Bill will understand it either. Please make it more clear". That is in Hansard, that can be quoted, and that I think is the solution of this problem which we often hear put before us—and even by Ministers who are learned lawyers. I hope that my noble friend will be so good as to bear that in mind.

I venture to say this, and on this the noble and learned Lord, Lord Simon of Glaisdale, will not agree with me, but I nevertheless constructively put it forward as a solution. If the two-tier system envisaged by Clause 3 and by the first schedule were to be abolished, most of the problems both of drafting and of substance that we have encountered in our discussions of this first schedule would vanish.

Lord Graham of Edmonton

I second that.

Lord Glenarthur

I have listened with care to what was said by the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Renton on the matter of the drafting of Schedule 1. I do not in any sense dodge my responsibilities because my name appears on the front of the Bill. When I said at col. 223 of Hansard—and the noble and learned Lord quoted me—that I would see what could be done but that the matter was very much in the hands of parliamentary draftsmen, in no sense did I mean to indicate, as I am sure the noble and learned Lord knows, that I was trying to dodge my own responsibilities.

I gave both the noble and learned Lord and my noble friend an assurance that the question would be looked at. I have to agree that it is incredibly complex. Everyone associated with the Bill agrees that it is incredibly complex. However, it appears to be so because it relates to many different provisions and there has not seemed up to this point any simpler way of dealing with it.

I willingly undertake to see what can be done. I would be only too delighted if the schedule could be in a simpler form now. If it has taken the noble and learned Lord with his colossal experience hours and hours to understand the schedule, he will readily appreciate that it has taken me weeks and weeks—and still I am not sure that I understand it. I cannot be drawn too readily on the question of the Keeling schedule because I shall need to be quite certain in my own mind what it involves. Certainly I shall examine what has been said.

I take the points that have been made. I hope that my noble friend with his experience, and with the benefit of the report for which he was largely responsible and which the noble and learned Lord, Lord Simon of Glaisdale, quoted, and the Committee will allow me to do precisely what I have said I will do: take this question away, look at it, and see what can be done.

Schedule 1, as amended, agreed to.

Schedule 2 [Consequential amendments]:

Viscount Davidson moved Amendment No. 36: Page 6, line 12, leave out ("that effect") and insert ("the effect that that is his practice").

The noble Viscount said: This amendment merely tidies up the wording of new Section 17(4)(c) so that its meaning is absolutely clear. If the shop occupier wishes to prove that the holiday resort exemption applies in any case of contravention of Section 17, the notice that he displays under new Section 17(2) of the 1950 Act has to contain a statement to the effect that he gives all his shop assistants a holiday on full pay of not less than two weeks a year. The notice does not also have to contain a statement that the shop is situated in a holiday resort. This was a possible interpretation of new Section 17(4)(c) as it is currently worded in the Bill. I beg to move.

On Question, amendment agreed to.

[Amendment No. 37 had been withdrawn from the Marshalled List.]

Schedule 2, as amended, agreed to.

Schedule 3 [Repeals]:

[Amendment No. 38 had been withdrawn from the Marshalled List.]

The Deputy Chairman of Committees (Lord Strabolgi)

I have to inform the Committee that Amendments Nos. 39, 40 and 41 should be, but are not, due to a printing error, in the names of the Lord Bishop of London, the Lord Graham of Edmonton, the Earl of Lauderdale, and the Lord Beaumont of Whitley.

[Amendments Nos. 39 to 41 not moved.]

Viscount Davidson moved Amendment No. 42: Page 9, leave out lines 45 to 47.

The noble Viscount said: This is simply a drafting amendment. Section 6(c) of the Greater London Council (General Powers) Act 1984 amends article 8 of the order set out in the schedule to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967. As the relevant part of article 8 is repealed expressly in Schedule 3, on page 9 at lines 12 to 17 above, there is no need to repeal Section 6(c). I beg to move.

Lord Renton

As this is the final amendment we are, considering, I hope that I may be allowed to say how much I admire the remarkable way in which my noble friend Lord Glenarthur has grasped, as a layman, the complexities of this Bill. Without his assistance we would have been in even greater difficulties than we were. We should be most grateful to him.

Lord Glenarthur

I am most grateful to my noble friend. I am also grateful to him for the enormous help he has been in seeking to speed the progress of the Bill so far. However, we have other stages to go.

Lord Simon of Glaisdale

I should like a tribute to come also from the Cross-Benches. We on these Benches have appreciated enormously the industry, courtesy and thoroughness of the noble Lord. We are truly grateful.

Lord Graham of Edmonton

Without any authority whatever the noble Lord has given us nothing, and we are looking forward to something at later stages. I shall be much more flattering in my praise at later stages when that happens. However, I share the expressions of thanks from the Committee. I do not take from anything that has been said other than that the Minister has genuinely tried to understand our arguments. He has been unable to accept almost all of them, but we have had the feeling on this side of the Committee that he is genuinely sincere when he says that there are things worthy of consideration at a later stage. I certainly share in the expressions of gratitude.

On Question, amendment agreed to,

Schedule 3, as amended, agreed to.

House resumed: Bill reported with the amendments.

House adjourned at thirteen minutes past ten o'clock.