HL Deb 03 November 1986 vol 481 cc985-92

11A Lord McCarthy rose to move, That this House do disagree with the Commons in their Amendments Nos. 6 to 11.

8.15 p.m.

The noble Lord said: My Lords, I beg to move that this House do disagree with the Commons in their Amendments Nos. 6 to 11. I shall be speaking also to Amendment No. 14. All such amendments are designed to remove Clause 7 which was inserted at Committee stage in this House. The object of Clause 7 was to grant protection against unfair dismissal to existing employees who were covered by restrictions on night work and so on under existing Acts. I should say, as this led to some debate in another place, that the provisions of Clause 7, as written, were not intended to cover existing employees who were subject to exemption orders. There were no restrictions in operation in their case, and so it was essentially to provide a right of unfair dismissal.

I should like to remind the House why we put forward this proposal at Committee stage, what the Government objected to and why this House at the time rejected their argument. I wish also to examine whether any new or convincing arguments were mounted in another place of a sort that might lead us to change our minds. We proposed the right of unfair dismissal because we said that it was parallel to the position in the Shops Bill—the late and unlamented Shops Bill—where the noble Lord, Lord Glenarthur, had said, in a precise parallel circumstance that existing employees who had been attracted to work in shops because they would not have to work on Sundays would suddenly find, because of the passage of the Bill, that they would have to work on Sundays and they were entitled to some protection.

The noble Lord went on to distinguish between the position of these workers and the position of subsequent entrants who would know that Sunday work might well be demanded of them when they entered the job. In other words, he was upholding the old Burkean principle, once so dear to the Conservative Party, that people have acquired rights. And if they have acquired rights, they should be respected in legislation. The noble Lord said that he recognised their special position.

Building upon that example, we suggested that there should be similar provision in this Bill because in this case there are many women or men in baking who have been encouraged to believe that they should not have to do night work. That was the argument. What did the Government say? We were then in the hands of the noble lord, Lord Trefgarne, who made a series of arguments. So far as I can see, there were four arguments.

First, the noble Lord said at col. 558 on llth March, that our suggestion would load the dice against employers; secondly, that it resulted in a two-tier labour force; and, thirdly, that it might in the way it was drafted give rights to those who were under exemption orders, although we do not think that this is the case. The fourth argument was that what we wanted was not like the Shops Bill because much less use would be made of these new provisions—the new freedom of employers—in respect of night work whereas all knew that the moment the Shops Act was on the statute book and became effective hundreds and, in fact, thousands of shops would be opening on Sunday. Those were the arguments, but they did not commend themselves to the House.

In reply we said that these first two arguments could be made against Government proposals on the Shops Bill. We said there was no evidence there would not be widespread moves towards night work; indeed, it may be that there would be more changes than there were in the case of the Shops Bill, because as far as one knows, this legislation is observed at the moment whereas we all know that the regulations in shop work and preventing Sunday work are now largely evaded.

We said there were no problems in existence about the exemption orders, and the issue of exemption orders strengthens our case. The provisions of our amendment did not cover what was already covered by exemption orders. The exemption order system was a system which we accepted was more effective than the one we were proposing. The government spokesman in another place denied that. He said that workers would be in a better position—terrible thought—as the result of our amendment if it stood and that employers would be in a worse position than they would be under the old exemption orders.

I do not think that stands up because the exemption system is a collective system that encourages trade union organisation. It is a system where workers get exemption orders negotiated in effect by their unions. It is a situation where a union can come in and say that if an employer wants to do night work he had better negotiate about it and recognise the union for that purpose. If the employer is found by the factory inspectorate, for example, not to be observing the provisions of the Acts and he does not have an exemption order, that is an offence and he can be fined. One can compare all that with the very mild provisions that we have placed in the clause where all that the individual worker will be able to do is take a case of unfair dismissal to an industrial tribunal and receive a relatively small payment in compensation.

The truth is that in so far as there is an imperfect comparison with the Shops Bill the case for our amendment is strengthened. The difference between the Shops Bill and this Bill is that the Government were in serious trouble on the Shops Bill. They wanted to ensure a majority for the Bill and therefore were prepared to initiate the kind of concessions that the noble Lord, Lord Glenarthur, introduced. The Government did not think they were in difficulty on this Bill and therefore resisted the perfectly reasonable amendments that we wanted to place, but they were wrong. They were passed by the other place and there is no reason why they should not be passed through this House tonight.

Moved, That this House do disagree with the Commons in the said amendments.—(Lord McCarthy.)

Baroness Platt of Writtle

My Lords, the commission's comprehensive report on health and safety legislation, Should we distinguish between men and women, published in 1979, came to the conclusion that there was no longer justification for maintaining legal provision on hours of work that required men and women to be treated differently. The overall recommendation was, therefore, that the legislation should be removed or, where health and safety demanded it, be replaced so it applied equally to men and women. However, in conjunction with such removal the commission recommended that minimum standards of welfare should be specified and provision made to give transitional legal protection for existing workers to ensure that those who might have their hours of work altered significantly could not be forced to leave their employment. I moved an amendment on those lines which I was subsequently unable to persuade my noble friend to accept.

The commission is very disappointed that there will now be no such provision in the legislation if Clause 7 is removed. It is supportive to the provision of protection of existing conditions in the Bill as it left the House of Lords and regrets its rejection in Committee in another place.

Lord Young of Graffham

My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 6 to 11 and I shall speak also to their Amendment No. 14.

The reasons for the removal of the references to Clause 7 from Clause 4, and indeed from Clauses 5 and 6, are of course inseparable from the reasons for the removal of Clause 7 itself. Clause 7 provided that the statutory restrictions on hours removed by Clause 4 of the Bill would continue to have effect as contractual conditions of employment for the workers to whom they apply at the date of commencement. The only exception would be if the employee involved agreed otherwise in writing. In other words, individual employees in effect would have built into their contracts the mass of statutory restrictions currently in operation, none of which is particularly suited to today's conditions.

It was the view of another place that this would not have been a desirable position. In a situation where we are attempting to decrease the burdens on business, we should have succeeded in achieving the reverse. Indeed, employers would have been worse off than had there been no move to repeal this legislation in the first place. Employers would have ended up with a two-tier workforce: those employees who retained the statutory restrictions as contractual conditions of employment and those who did not because they had agreed in writing to change or because they were recruited after the Act's commencement.

That was bound to cause totally unnecessary confusion and difficuties for employers and employees alike and to increase employers' costs, curtail flexibility and impair efficiency, thus destroying the deregulatory aim of the hours of work repeals. Employers and employees would have had to spend time picking their way through the mass of current restrictions, attempting to find out what needed to be retained in individual contracts of employment. This time, I am sure, could be better spent by both employers and employees. It would not have been a short-term problem. The outmoded and discriminatory restrictions on hours, some of them originating from the 19th century, would have continued to operate well into the 21st century until the very last of the current generation of employees had left the workforce for good.

Proponents of Clause 7 argue that we exaggerate the problem of the two-tier workforce. With all due respect, that argument misses the vital point. Clause 7 would have created a problem that need not have existed at all. Furthermore, the clause would have removed a degree of flexibility that an employer currently enjoys. This paradox comes about because the legislation permits exceptions and relaxations in certain circumstances. These will be swept away at the same time as the restrictions, so that the employer will be more inflexible than now and even more unable to cope with change. The restrictions will have become well nigh immutable.

In addition, the clause provided that the statutory limits would have remained as contractual conditions until the employee agreed otherwise in writing. This would have made it difficult for a variation to take place. Even if the employee started working new hours set by the employer outside what would have been the statutory limit, her contractual obligations would remain only to work within those limits. She could therefore refuse at any stage to work, say, before 7 a.m. or after 8 p.m. without being in breach of contract even if she had been doing so for some time after the repeals took effect and the employer relied on her to work at such times.

A further fundamental objection to the clause is that it would have perpetuated for many years to come the discrimination that we are seeking to remove by repealing the restrictions on women's hours of work. Women in manufacturing have continued to be treated differently not only from the men working alongside them but also from other women working elsewhere in the economy. This would be entirely unsatisfactory, and could not have been justified.

The clause would also have made it automatically unfair for an employee to be dismissed for refusing to agree to a variation in working hours, but existing employment protection legislation already offers safeguards. A woman dismissed for refusing to work different hours following the repeals could make a complaint of unfair dismissal to an industrial tribunal provided that she had worked for the necessary qualifying period. Similarly, she could make a claim of constructive dismissal if she felt forced to leave her job because the employer tried to change her terms and conditions of employment by making her work hours that proved difficult or impossible for her.

Moved, That this House do agree with the Commons in the said amendments.—(Lord Young of Graffham.)

8.30 p.m.

Lord Wedderburn of Charlton

My Lords, did I hear the noble Lord the Secretary of State correctly? Did he say that in every case where a worker is employed to work certain hours and the employer comes along and says, "I want you to work different hours," and the employer then insists, and dismisses or constructively dismisses, that that would give rise to a claim for unfair dismissal? Does he say that that includes situations of reorganisation of the work and the business, and other areas on which there is a mass of case law to the contrary?

Lord Young of Graffham

My Lords, I said "could". I did not say "would". There are circumstances in which that could apply. I did not say that it would apply.

I went on to say that an employee could make a claim for constructive dismissal if she felt forced to leave her job because the employer tried to change her terms and conditions of employment by making her work hours which proved difficult or impossible for her. Another place, endorsing the Government's view, could not accept that there is any justification for further protecting the expectations of those working hours currently subject to the legislation being repealed. To do so would be to set them apart from all other employees who may be required to change their work patterns from time to time.

Furthermore, additional protections are unnecessary because, as I have said, we simply do not expect that lifting the restrictions on hours will prompt radical changes. Anyone even marginally involved in industry will realise this and the alarmist predictions of the supporters of Clause 7 are simply not justified. Machinery is expensive to operate; unsocial hours are expensive. Factories will only vary their hours when their order books justify it.

Any employer wishing to employ women at normally prohibited times is almost certainly already doing so under an exemption order and the majority of employers in the baking industry are working under collective agreements giving exemption under the 1954 Act.

In debates on this clause much has been made of its analogy with the so called "conscience clause" in the Shops Bill. It has been argued that the repeal of restrictions on hours would radically alter the position of factory employees just as the deregulation of shop hours could have fundamentally altered retailing. But there is no true parallel between the two situations.

It has been argued that the need for protection on the grounds of worsened expectations was exactly the same for those employees affected by these repeals as for shopworkers who stood to he affected by the deregulation of shop trading hours. But women in factories have always been aware that working prohibited hours was possible under a special exemption order or one of the regulations which provide some limited exceptions. Similarly in baking, collective agreements give exemptions from the provisions of the 1954 Act. So employees currently covered by the restrictions on hours could never guarantee that they would not, at some time, be called upon to work shifts, overtime or at night. But we were dealing with a different situation with retailing. It is perfectly true that because the law allows only a small number of shops to trade on Sundays, employees taking jobs in shops could be relatively certain that legal Sunday working in the present state of the law would not be asked of them. That was why the Shops Bill provision was framed as it was.

Furthermore, as I have explained, we do not expect working hours to change dramatically as a result of these repeals. The case for shops, on the other hand, was very different. Radical changes in hours would have taken place. After all, a shopkeeper can do business only if his shop is open and the volume of trade during extended hours may or may not make opening worthwhile. It was therefore appropriate to make provision for the wishes of employees in such circumstances. Lastly, the shops legislation would not have discriminated between men and women but Clause 7 would have done so, as I have already explained.

I have explained why Clause 7 was removed in another place. It is vital that, when we consider the provisions of a clause such as this, we fully examine all its implications. We must judge whether its requirements are necessary and practicable. The view of another place was that Clause 7 failed the test on both counts: that its provisions were unnecessary and impractical. I therefore urge your Lordships to agree with its removal from the Bill.

Lord McCarthy

My Lords, the noble Lord gives the same selection of reasons. They are no more convincing now than they were then. He gives no more details. I cannot claim to have written all his reasons down but he says that the existing legislation is not particularly suited. However, the noble Lord neglects to tell us in which precise way it is unsuited. He says that it is a burden on business; he does not say how. In the noble Lord's own publication Burdens on Business there was no mention of this problem. It is true that four per cent. mentioned legislation; but it is quite clear that they were thinking about employment protection legislation. In any case most people talked about VAT and the level of taxes. On the basis of his own survey, nobody thought that this issue was a burden on business.

The noble Lord talks about a two-tier workforce. Everything that he says about the problems of a two-tier workforce—about those who are existing employees and those who come afterwards—could have been said against the noble Lord, Lord Glenarthur, in the debates on the Shops Bill. The Government did not accept the argument then. More amazingly still, the noble Lord says that what we are suggesting is more inflexible in providing that an employer cannot make someone work nights unless a written undertaking is given. The noble Lord says that it would be more inflexible for the employer than the present system of exemption orders. With the present state of the labour market, the idea that employers could not get employees in most cases to agree to have a condition of this kind in their employment contract is totally implausible. The noble Lord says that even if they had such an undertaking they would have to ask continually for changes in the written permission every time they changed the system of work arrangements. There is no evidence for this.

It has been well-established in industrial tribunals that workers can be asked to change their work patterns. If they unreasonably refuse to change their work patterns that is not a basis for a case of unfair dismissal. At first, he said that it was covered by existing legislation. Quite rightly, and very wisely, when my noble friend Lord Wedderburn asked him whether he was really saying that, he backed away. No one can say on what basis an industrial tribunal would be likely to say that any worker who refused to do night work after the passage of this Bill would be unfairly dismissed. I would think that the employer would have to have no reason, and would not seek to explain his reason, or have to indicate that it had anything to do with the necessities of his business, but that he was asking the worker to work nights out of pure vexatiousness. There might be some other substantial reason, but, other than that, no industrial tribunal is likely to say, unless there is this section in the legislation, that there is any protection for the individual worker.

We do not accept that the noble Lord the Secretary of State has given any answers to any of our questions. But it is late at night and we shall not press this to a Division.

I beg leave to withdraw my Motion, That this House do disagree with the Commons in their Amendments Nos. 6 to 11.

Motion, by leave, withdrawn.

On Question, Commons Amendments Nos. 6 to 11 agreed to.