COMMONS AMENDMENT (Hansard, 3 November 1986)

§ Lord Young of Graffham
My Lords, I beg to move, That this House do agree with the Commons in their Amendment No. 15.
As was explained when the Bill was considered here and in the other place earlier this year—although we understand and respect the motives which caused my noble friend Lady Platt to introduce it—the Government are opposed to this clause in principle. Those in another place shared that view and that is why, after much consideration, the clause was removed. I hope that I can persuade you today that the retention of this clause would result in such practical difficulties that its deletion from the Bill is the only way to proceed.
Clause 8 envisaged that the Health and Safety Commission, after consulting the Equal Opportunities 993 Commission, would be empowered to issue a Code of Practice giving employers guidance on carrying out new duties imposed by the clause. These new duties would be that when an employer proposed to make a substantial change in hours of work he must take into account the health, safety, welfare and the interests (particularly domestic and family responsibilities) of his employees and make appropriate provision for their health, safety and welfare.
This clause therefore imposed a new and onerous statutory duty on every employer in every section of the entire economy—not just the 1½ million or so employees affected by the repeals. The repeals of restrictions on hours of work proposed by this Bill are limited to women in industrial undertakings and men in the baking industry. By removing discriminatory restrictions which do not exist in other sectors, the repeals will simply give these workers the freedom to decide for themselves, in agreement with their employers, the hours which they work just as their colleagues in other sectors do. These repeals cannot possibly justify the imposition of a new statutory duty on all employers especially given the major practical difficulties of such a duty which I shall spell out later.
I should emphasise that clearly the vast majority of employers know that it is good industrial relations practice to consider the welfare and interests of their employees in all aspects of their working lives and the Government actively encourage this. Indeed, the Health and Safety at Work Act 1974 puts all employers under a general duty to ensure the health, safety and welfare at work of all their employees. In addition, the Health and Safety Commission is already empowered by the 1974 Act to issue codes of practice to provide guidance on any of the Act's general duties including hours. However, this clause goes beyond that. It provides that when changes in working hours are contemplated it would be the employer's statutory duty to consider the interests of his employees not only at work but elsewhere, particularly domestic and family responsibilities. This is a totally new departure.
The provisions of this clause mark a significant shift in the current balance of rights and responsibilities between employers and employees and our view has been strengthened by the protests from the employers' representatives who have pinpointed the impracticalities of the Clause 8 provisions.
What would an employer be required to know about his employees' domestic and family responsibilities in order to be in a position to consider their interests? Currently, an employer has no right to know the details of his employees' domestic circumstances although I am sure that in many workplaces he will come to know a great deal about his employees. Equally, the employee will likely know a great deal about the employer. However, individuals have the right to privacy if they so desire and I really cannot see that noble Lords want us to give employers the right to pry into employees' circumstances. However, if an employer does not do this how is he to comply with the duty imposed by Clause 8? Have the differences in how individuals regard their domestic and family responsibilities been fully considered? In exactly similar circumstances one person may wish that his 994 personal circumstances be taken into account but his workmate may feel differently. Would an employer be required to treat them differently?
The clause also imposes significant problems of interpretation. What for instance is a "substantial" change in hours? At what stage may the employer consider he has exhausted his duty to "consider" his employees' interests? What does "appropriate provision" mean? These problems are legion and I believe it is extremely unlikely that any Code of Practice could much clarify them.
I appreciate that the intention behind the clause was partly to ensure that women did not find themselves at a disadvantage due to their domestic or family responsibilities. My noble friend Lady Platt explained that the clause was aimed at helping women take up improved job opportunities which may be open to them as a result of the removal of existing restrictions taking place in this Bill. However, I believe that if this clause were to be retained it could quite possibly have the opposite effect and discourage employers from recruiting women whom they judged had onerous domestic responsibilities. Indeed, the Equal Opportunities Commission's code of practice recommends that when recruiting to a job which involves unsocial hours the employer should not ask detailed questions based on assumptions about domestic obligations but only ask questions objectively. I think this highlights the difficulties for employers. An employer trying to comply with the provisions of this clause could possibly find he was in breach of the EOC code of practice, by going about it in the wrong way.
Finally, there is nothing to suggest a need for the wide ranging and inflexible statutory duty imposing an approach which most already pursue. On the contrary, evidence from those sectors of the economy where there are no statutory restrictions on hours, which is the majority, suggests that employers and employees manage perfectly well without this kind of unnecessary government interference. Our purpose in these repeals is to remove outdated restrictions and thus ensure that women have an equal opportunity to participate in job opportunities. Our aim is not to impose new unnecessary burdens on employers. We want them to concentrate on expansion and thereby create new jobs and not to have to spend time checking into their employees' private lives.
It is essential that we create the conditions under which enterprise can prosper and not impose yet more burdens, however well-meaning they may look on the surface. Jobs depend on it.
However, I recognise the very real concern expressed in this House, and in another place, that some form of guidance should be made available to employers who wish to make substantial changes in working hours after the repeal of restrictions on women's hours and of the 1954 Baking Act. As is usual when changes are made to the law there will be leaflets that outline the changes. I will ensure that leaflets to employers on this matter draw their attention to the importance of giving full and proper consideration to such issues as employee consultation 995 and the availability of transport. I urge you therefore to agree with the removal of this clause.

§ Lord McCarthy
My Lords, we do not wish to spend too long upon this particular point in the business tonight. However, there are a few comments to be made. This provision was produced by the noble Baroness on the other side of the House, and was first suggested at the Committee stage of the Bill. A number of reasonable objections were made to the particular form of words which the noble Baroness used, some of them on this side of the House. As a result, the noble Baroness came back with an alternative form of words on Report; therefore, the Bill now includes this particular clause.
When the Secretary of State comes to us and says—I think I have understood him correctly—that this is an onerous statutory duty then a gulf opens up between us. When he can seriously say to the House that this minimal code of practice, this tiny infinitesimal burden—this flea is a burden—placed up the back of British industry is an onerous statutory duty, then I find the gulf opens up between us.
As has been said in the course of this debate elsewhere, all good employers would carry out the provisions of this code of practice anyway.
Only the bad employer would not carry out the kind of things which the Health and Safety Commission is likely to place in its code of practice. Yet the Secretary of State says that it is an onerous burden. However, he does not give us any evidence. I would suggest that very considerable evidence was deployed in this House and in another place when this issue was discussed at that time.
People mentioned the survey of the Department of Employment on women's employment, published in the Department of Employment Gazette in September 1984. They stressed the evidence of the TUC, the EOC and many other bodies. They stressed the report of the British Crime Survey, which shows that 41 per cent. of women in inner city areas feel unsafe walking home at night and that 63 per cent. avoided going out in the dark. They stressed the GLC transport survey which produced even more significant figures on all these points. Any decent employer would take these factors into account if he was suggesting a great change in hours which involved a substantial degree of night work.
The most remarkable argument against this very modest clause was the one put forward by the Secretary of State himself at col. 446 of the Official Report at the Report stage on 14th April. He did not mention it tonight, but perhaps it lies behind all his other reasons, and I remind him of it. He said that he objected to the proposals which required: employers to amend work practices to suit the domestic arrangements of employees". 996 He said that he thought for us to put that forward was curious; that it was curious to suggest that employers should amend their work practices to suit the domestic arrangements of employees. I do not find that curious at all.
As I have said, the overwhelming majority of decent employers would try to start shifts to coincide with public transport, which is amending working practices to suit the domestic arrangements of employees. It is the kind of thing that we would include in a code of practice. The overwhelming majority of decent employers would introduce flexitime and try to operate flexitime so that it suited married women. That is just the kind of thing that one might put in a code of practice. Decent employers would try to avoid overtime requirements that reduced public holidays, particularly Christmas holidays. If they abolished the annual shutdown, they would try to let families take their holidays together, and they would try to avoid night work of a kind that most of their female employees might find would result in them going home during dangerous hours, unless they could find some form of transport.
All those things, including amending or changing work practices to suit domestic arrangements, good employers would do. We were simply suggesting that bad employers might have some tiny impress upon them to conform with good practice. It was a very tiny one because the only enforcement mechanism was unfair dismissal; and if you are suggesting unfair dismissal, you might be able to argue that a significant element in the decision to dismiss was a change in work arrangements and that the employer had not taken into account a modest, reasonable code of practice. The chance of it affecting 10 people's dismissals in 10 years would be very small. It was a tiny little weight, but the Secretary of State would not have it. He says that it would be a burden on business.

§ Baroness Platt of Writtle
My Lords, it was with considerable disappointment that I read this amendment to leave out Clause 8. This was the clause which I moved and for which I obtained support from all sides of your Lordships' House, so that it was passed by a substantial majority of 107 Content to 88 Non-Content.
In another place there were criticisms of drafting of the clause and the scope of its effect. Our intention was that a code of practice should be developed to prevent exploitation of vulnerable women workers by irresponsible employers after the changes envisaged by the Bill.
We are now within a few days of Royal Assent if this Bill is to be passed in this Session of Parliament. The Equal Opportunities Commission sees great merit in the Bill and believes that it will constitute a substantial step forward in progress towards the elimination of discrimination between men and women generally. We have made criticisms which the Department of Employment has heeded, and we are grateful for the alterations made. We are still critical of certain clauses of the Bill, which will not be altered by the Government at present. These may be the subject of future suggested amendments to the law by the Commission.
997 Nevertheless, at this late stage, in our view the most important thing is that the Bill should pass into law. I had not intended, therefore, proposing a new amendment at this late stage as I do not in any way want to be responsible for hindering the passage of the Bill into law during this parliamentary Session, and time is now very short before Royal Assent is necessary. I am grateful to my noble friend for his assurance that he will issue notes of guidance to employers proposing changes in women's hours after the coming into force of this legislation. I hope that he will give practical guidance to employers on the consideration that they should give to the health, safety, welfare and interests of their employees affected by the change.
That should particularly cover facilities for transport, which has caused major anxiety on all sides of your Lordships' House and in another place, as sadly these days our streets are not safe at night for either men or women. Notes of guidance are not so strong as a code of practice, but nevertheless they represent a considerable step in the right direction if issued by the Department of Employment. Reasonable employers when changing hours of work, will have regard to that guidance and act accordingly. If irresponsible employers have paid little regard to the notes of guidance and are taken to an industrial tribunal by an employee, the tribunal can, in coming to their decision, judge to what extent they have acted fairly and reasonably towards their employees in that respect. I am grateful to my noble friend for his assurance, and hope that the EOC's co-operation will be sought in drawing up the notes of guidance.