HL Deb 25 March 1993 vol 544 cc511-88

House again in Committee on Clause 21.

[Amendments Nos. 109 to 114 not moved.]

[Amendment No. 115 had been withdrawn from the Marshalled List.]

[Amendments Nos. 116 and 117 not moved.]

Lord Mottistone moved Amendment No. 118: Page 36, line 26, at end insert: ("(3A) In determining whether to entertain an application under this section the court shall have regard to whether any other application has been made under this section.").

The noble Lord said: This is a probing amendment. It will impose a duty on the court to ensure that there is not a preponderance of time-consuming and otherwise costly applications, all pursuing one and the same remedy. In principle it cannot be disputed that those who suffer damage in law should have the right to seek redress. In a situation involving a breakdown in industrial relations, however, the primary aim should be to settle the trade dispute. It is firmly maintained by a number of industrialists that the introduction of third parties to a dispute which exists between an employer and employees may not help to achieve that aim.

As the Government will be aware, negotiations to settle trade disputes can reach critical and sensitive stages, and it may well be that the parties are on the verge of settlement when the consumer intervenes. I know that organisations such as the CBI, which has some 250,000 member companies, have made this very point to the Government. At times of industrial action it can be extremely unproductive to have third parties, who are certainly not party to the trade dispute, taking action which may hinder negotiations.

In that regard it would be ideal if the new section did not exist at all. I am not asking for it to be removed, but rather seeking the Government's view on whether such a duty on the court, to check whether other applications for injunctions have been made, would assist the smoother and more efficient administration of an already burdened legal system.

This amendment seeks to offer a sensible solution. If each individual is to have a right to make application to the High Court or Court of Session, there should be some checks and balances to prevent multiple applications on one and the same issue. In this way the Government will still achieve their stated purpose of giving a right to the citizen, but there will also be an assurance that only one meritorious claim is being considered at any one time. I beg to move.

Lord Rochester

My name is added to this amendment. I welcome the proposal. It might at least limit the damaging effect that vexatious complaints from maverick individuals could otherwise have. I look forward to hearing the Minister's reply.

Lord McCarthy

The noble Lord, Lord Mottistone, is carrying out the role of the truth teller in this debate. He is absolutely right once again. He said that just as the parties are about to reach a settlement and the matter is about to be put to bed, up jumps some vexatious litigant who brings an action and messes up the settlement. That is one of the reasons that we are opposed to the clause. That is something that we wish the Government would think about.

Unfortunately the noble Lord's amendment does not deal with the problem. It merely attempts to provide a procedure which would reduce the "Disgusted of Tunbridge Wells" to one "Disgusted" so that one could not also have a "Disgusted of Birmingham" at the same time. It is better than having 16 of them, but the problem is to get them all out of the way.

Baroness Denton of Wakefield

My noble friend Lord Mottistone said that this was a probing amendment and I hope that I can persuade him that it is not necessary.

I understand that the courts have existed for years on the basis that they are fully aware of what is going on with regard to proceedings brought before them. In particular, they will have full regard to duplicated proceedings.

The court's position on such issues is implicit. Indeed, am not aware of any other legislation which expressly states that the courts should have regard to whether or not an application has already been made to it in respect of the same matter. I believe that it is entirely unnecessary in this, as in any other, provision to state that the courts must have regard to duplicated proceedings when considering applications before them.

Indeed, I believe that there is a hidden danger in accepting such an amendment. If we were to include the text of the amendment in the provisions in Section 235A that might be wrongly interpreted as implying that no such consideration is given to duplicate proceedings in other legislation where such a provision is not expressly included. I realise, of course, that that was not my noble friend's intention.

I hope that I have been able to persuade my noble friend that his amendment is entirely unnecessary and that he will withdraw it.

Lord Mottistone

From what my noble friend said, is it always the convention or the rule of the courts for all legislation which might fall into this bracket that they will look around to see whether there are similar proceedings in other courts? It would be very helpful to know that. I shall not press the amendment now but I may pursue the matter later if that is not the case.

Baroness Denton of Wakefield

As I said, the courts have existed for years on the basis that they are fully aware of what is going on with regard to proceedings brought before them, particularly duplicate proceedings.

Lord Mottistone

I thank my noble friend for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 119 and 120 not moved.]

8.15 p.m.

Lord Wedderburn of Charlton moved Amendment No. 121: Page 36, line 47, leave out ("section 20(2) to (4)") and insert ("section 20(2), (3) (a) and (4)").

The noble Lord said: This amendment illustrates the interaction between Clause 21, as the Government would have it, and the principles which they have already placed on the statute book which determine trade union liability.

Section 20 of the consolidation Act 1992 concerns a crucial part of any legal system in the way in which it deals with the vicarious liability of autonomous organisations and the persons for whose acts they will normally be liable. In our law in most associations it is liability for agents who act with their authority. Since 1992 that has not been so in the case of trade unions.

There has grown up in the statutes intricate legislation concerning vicarious liability which makes trade unions liable in extraordinary situations. I invite the Committee to consider the liabilities which we have already probed in considering Clause 21 against the background of the paragraph which the amendment would omit from Section 20(3) (b) of the 1992 statute.

A union is liable for all its officials, subject to repudiation in many cases, which as the Committee knows now involves an obstacle course around a track, which few trade unions can negotiate with success, and the most extraordinary number of communications to every worker and employer concerned. Beyond that, under Section 20(3) (b) a union is liable for any act which was done, authorised or endorsed by a group, or any member of a group, of persons of which at the material time the official was a member and which included in its purposes co-ordinating industrial action.

What we have here in reality is a group of workers —who are not necessarily members of a union, because the Committee will have noticed that the legislation refers to a group of any persons—co-ordinating industrial action. They may be discussing whether they will come out on strike tomorrow. The group is attended at that time by an official. In reality that official is likely to be trying to stop them—certainly if they are members of his union —from taking the action in question before all the hoops have been successfully negotiated by the union. Well may he try to dissuade them, because the fact that at the material time he is a member of the group co-ordinating industrial action however briefly, means that the union is subsequently liable not only for an act of the official or of the group but of any member of the group. That goes beyond reason.

The Government may say that that provision has been on the statute book since 1990. It has. That is the method they employ. They put something which is scarcely reasonable on the statute book and then follow it up a few years later with something which is less reasonable and which they then justify on the basis of the legislation which they introduced a few years before.

I invite the Committee to consider the interaction between Section 20 of the 1992 Act as a whole. I am merely omitting the very worst paragraph, which is unjustifiable according to normal principles. In the amendment I suggest that the Clause 21 liabilities are the beginning of a new era of wide liability for a union which it can scarcely avoid in the realities of life. I beg to move.

Baroness Denton of Wakefield

It comes as little surprise to hear the noble Lord revert to the issue of the Employment Act 1990. I am sure that, equally, it will come as little surprise that I shall resist the amendment.

The new "citizen's right" is to be available to halt the unlawful organisation of industrial action. The rules which already apply to determine whether a union is to be held responsible for organising industrial action or for certain acts of contempt of court are, as the noble Lord pointed out, set out in Section 20 of the 1992 Act. It would make no sense whatever to have a different set of rules to determine whether a union was to be held responsible for such acts for the purpose of Section 235A.

The noble Lord, Lord Wedderburn, will see that the provisions which the amendments seek to modify replicate those to be found in Section 62(5) of the 1992 Act. Section 62 provides the statutory right for union members to restrain their union from calling on them to take industrial action without a proper secret ballot. It is right to have those provisions in Section 62 and right to replicate them in new Section 235A.

The Government believe that the rules set out in Section 20 are the right rules for establishing whether a union is to be held responsible for certain acts done by certain persons. Our views about that have not changed since the matter was extensively debated during the passage of that Act. It will come as no surprise to the noble Lord that we cannot accept the amendment.

Lord Wedderburn of Charlton

I thank the noble Baroness for what she said. It bears out the notion that that which was put on the statute book—as it was in 1990 with a certain flicker, if not of shame, of daring —is now taken to be obvious gospel and is replicated again and again, as she stated. In those days the provision was put on the statute book only in respect of industrial or economic tort liability. It was specifically so confined, and later expanded. The records will show how progress is made by putting even more indefensible propositions on to indefensible propositions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 122 and 123 had been withdrawn from the Marshalled List.]

Lord Wedderburn of Charlton moved Amendment No. 124: Page 37, line 8, after ("reason") insert ("except where the inducement is a necessary constituent of the liability in tort").

The noble Lord said: This is the point which I left over when moving Amendment No. 108. To pick up the point made on the last amendment, the Government have introduced a provision in the past and have now replicated it. But they have done so with a rather squint-eyed vision as to its nature.

When the Government introduced the right of a trade union member to have a ballot before industrial action, they introduced it in relation to trade union inducements to take action. They followed it up with the proposition that the inducement need not be effective. I have referred to what that means. I am never clear as to when an inducement is or is not effective. However, broadly speaking, I suppose one can understand what it means. Indeed, the common law has a distinction between an inducement on the one side which must be persuasive, and a warning on the other which is a mere statement of fact or danger.

Having introduced the provision in trade union law in that specific instance, the Government have done what the noble Baroness candidly stated: they have replicated it and they have replicated it in the Bill. With respect, they made a mistake. New Section 235A(7) provides that, 'inducement' includes an inducement which is or would be ineffective, whether because of a person's unwillingness to be influenced by it or for any other reason". The provision "for any other reason" is quite extraordinary. If the union sertds out letters to its members which are all lost at sea, that is still an inducement within the clause because it does not matter what the reason is for its ineffectiveness. The insertion of the formula, in my submission, is quite indefensible. If a union has tried to induce people and they are not induced, why should it be liable? However, the Government believe that it should be.

But the Government have still made a mistake. The types of liability covered under new Section 235A(2) are acts which are actionable in tort. Acts which are actionable in tort in industrial action are highly likely to be inducements of breach of contract, inducements of breach of statutory liability, or inducements of breach of equitable principles, but inducements which are wrongful interferences. Examples have been given already from the Government Front Bench. The inducements in our common law—the Government have not altered them all yet—are tortious only if they are effective inducements. Therefore within new Section 235A(2) (a) that which is actionable in tort for the most part (obviously there may be other torts) will be inducements to some kind of wrongful act—for example, a breach of contract. That inducement must be effective. Pro tanto the provision rests upon art inducement which must be effective.

It therefore cannot possibly be right, unless the Government wish to change the very fundament of tortious liability by a side wind, to say that throughout the clause an inducement is an inducement even if it is ineffective. It may be that under some other torts the ineffectiveness of an inducement might be passed off by a plaintiff. Under the new Section 235A(2) (b), under Section 62 of the consolidation Act, the ineffectiveness of the inducement has already been made of no account by the Government. At the lowest, throwing in the formula that inducements never have to be effective cannot possibly be other than a circular route. An ineffective inducement—let us take the lowest point, inducement of breach of contract, that is, knowingly and intentionally inducing a breach of contract without justification—is a tort but only if the causality is shown or, in an interlocutory matter, the likely causality is shown.

I seek to save the Government from an absurdity of their own making and to suggest that the wide inducement clause—I do not support it—that the Government provide could not possibly apply to all the torts in new Section 235A(2) which the Government are inserting. I beg to move.

Lord McCarthy

I ask the Minister to take the amendment seriously. As the noble Lord said, we were worried about the ineffective inducement when it began its traverse of the industrial relations legislation. It is now taking wings. We now have reference again to the ineffective inducement. It is very serious from the trade union point of view. It is part of the trilogy of this clause: the ineffective inducement meets the unquantifiable, immeasurable factor and produces non-damage, but it still gives rise to liability.

Baroness Denton of Wakefield

I first assure the noble Lord, Lord McCarthy, that we take every amendment seriously and would not dream of not considering them in that light.

The amendment concerns the provisions of new Section 235A(7) (a), and would, in effect, negate the intended effect of those provisions.

However, there is really nothing "sinister" or untoward about Section 235A(7) (a). Indeed, the provisions replicate, as I stated in the reply to the previous amendment, those already part of the law in Section 62(6) of the 1992 Act, which provides the member's right to restrain his union from calling for unballoted industrial action. Both Section 62, and the new Section 235A, create new statutory rights to restrain unlawful organisation of industrial action.

In Clause 21 we are talking of the right of the individual. If an individual brings proceedings under the new "citizen's right", we see no need for him or her to have to satisfy the court that his or her claim is well-founded by showing anything more than Section 235A currently requires. We certainly see no need for leaving scope for an individual to have to convince the court that a particular unlawful inducement would be "effective". This would serve to interfere with the new right, for no good purpose.

The amendment would mean that that could certainly happen. We believe it therefore to be undesirable. I hope that the noble Lord will withdraw the amendment.

Lord Wedderburn of Charlton

Before the noble Baroness sits down, it may be convenient if I could ask her a question. Would she please read Section 235A(2) (a)? We find that a plaintiff may be relying on the fact that the act is actionable in tort. Tort is an external category to the section. Let us assume that the only possible tort is an inducement of breach of contract. Does the noble Baroness say that the inducement must be effective?

Baroness Denton of Wakefield

It is true that an inducement is only tortious if it is effective, but the noble Lord seems to forget that it is also tortious to threaten an inducement when it cannot be known whether the threatened inducement will be effective.

Lord Wedderburn of Charlton

I thank the noble Baroness. Of course it would not be right to threaten something wrongful. One can get a quia timet injunction for it. It is wrong to threaten to induce a breach of contract, but only if the causality between the inducement and the breach can be shown, as in this case, as a likely or threatened event. It is in all the books. I do not see why the noble Baroness is so ill served as to have this kind of common law presented to her.

It is clear that something which is actionable in tort as an inducement of a breach of contract—to take the simplest case—is actionable only if the inducement can be shown to have causality in relation to the breach in an ordinary action as in fact in a threatened quia timet interlocutory case as a threatened causality.

Of course, what the clause says is that that causality need not be there. Later on the clause says that no inducement need be effective.

One is not trying to be sinister or to negate the intended effect. I am trying to give people a night of sleep rather than a sleepless night trying to make something out of the legislation. At the moment the clause is nonsense, it is circular in part, although I do not make the claim that it is circular in all respects. One would have thought that the Government, faced with an amendment like this, would see the point and would do something about it. However, one knows why they do not. They even do nothing about a nonsense because it might allow one out of a million trade unionists off a hook which none of us can think of. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125 had been withdrawn from the Marshalled List.]

[Amendment No. 126 not moved.]

[Amendment No. 127 had been withdrawn from the Marshalled List.]

8.30 p.m.

Lord Wedderburn of Charlton moved Amendment No. 128: Page 37, line 48, leave out from ("of") to end of line 49, and insert ("manifest public interest.").

The noble Lord said: There seems to have been much trouble in getting the phrase right as to when the commissioner should act in a case involving, we suggest, "manifest public interest". At the moment, the phrase which has come out in our discussions seems to be rather vague. I beg to move.

Baroness Denton of Wakefield

It is important to remember that the new Commissioner for Protection Against Unlawful Industrial Action will be an independent authority. He or she will consider applications seeking assistance under the new citizen's right provisions. It is appropriate to allow the commissioner to form an independent view about many of the matters which are relevant when considering the applications.

Therefore, although the provisions in Section 235B(3) indicate matters to which the commissioner may have regard when considering applications, there is no duty on the commissioner to consider any of them. That is the significance of the words, matters to which the commissioner may have regard", at the beginning of new Section 235B(3). Nor is there anything in the provisions which will prevent the commissioner from considering other matters when deciding whether to grant assistance.

I can assure the Committee that the amendment proposed by the noble Lord adds nothing to the discretion of the commissioner to grant assistance. Indeed, it is difficult to see how the expression "manifest public interest" could be distinguished from the present, substantial public interest or concern", in practice. Even if there is an objective difference between the two expressions, it must be remembered that in this provision the criterion is whether in the commissioner's opinion the case involves a matter attaining the degree of public interest stated.

I also hope that the noble Lord will recall that in another place the Government accepted an Opposition amendment to add the words "or concern". The present amendment would, of course, remove those very words. I therefore hope that the amendment will not be pursued.

Lord Wedderburn of Charlton

I thank the noble Baroness and beg leave to withdraw the amendment. Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 129: Page 37, line 49, at end insert ("and (c) whether, having requested and considered the views of the persons who are party to the trade dispute, there are good reasons not to grant an application.").

The noble Lord said: This is a comparatively simple amendment to which I hope my noble friend will give proper regard. Ideally, all would-be applicants should be required to act through the commissioner. However, I understand that the Government have reasons for not legislating in that way. Where an individual has sought the assistance of the commissioner, however, we believe that it is incumbent on him (that is, the commissioner) to have regard to the views of those concerned in the trade dispute (that is, the employer and the union). If the commissioner is required to contact the parties, he or she may well find that they are in the throes of a settlement, perhaps even with the aid of ACAS. I understand that they may shortly be required to pay for that. It would be unfortunate, to say the least, if the commissioner went ahead ignorant of that fact and an injunction was granted to a citizen. That would be unfortunate for the settling of the dispute itself and unfortunate for the necessary cost to public funds. I suggest that the amendment will prevent such unfortunate results.

As with my previous Amendment No. 118, we are concerned that when such rights as are contained in Clause 21 are prescribed for individuals, the law should proceed with caution so that it does not hinder in this case the sometimes delicate negotiation of a settlement of a dispute by giving third parties the right to jump in with both feet.

I can understand what my noble friend was saying on Amendment No. 118. I rather feel that perhaps this has more purpose to it, or it is more desirable. I feel that the commissioner may well not take that kind of action. It seems to me that having the phrase in paragraph (c) will be just as important as paragraphs (a) and (b), which are matters which may be considered. I beg to move.

Lord Rochester

I wish briefly to support what the noble Lord, Lord Mottistone, said. It is significant that I understand that it is the CBI, representing the interests of employers, which has made it plain that it would welcome an amendment of this kind to limit the disruption that could be caused by the clause. I believe that the Government would be well advised to heed that suggestion and I hope that they will.

Baroness Denton of Wakefield

I have listened to the explanation of the amendment by my noble friend Lord Mottistone and to the additional points raised by the noble Lord, Lord Rochester. Of course, it is something which we have considered. I hope that I can explain to my noble friend why we consider the amendment to be undesirable.

The Committee would do well to remember in the first instance that the new Commissioner for Protection Against Unlawful Industrial Action will be an independent body which cannot be directed by government or any other party to grant or refuse an application for assistance for proceedings under the new right created by Clause 21. Consistent with that approach, provisions in subsection (3) of Section 235B give no more than an indication of the matters to which the new commissioner may have regard when considering applications for assistance under the new right. It is important to stress that these are issues which the commissioner may consider. There is and should be no duty on the commissioner to consider any of these matters.

However, it is helpful to both the new commissioner and to applicants who might bring proceedings under the new right, to give such an indication of the kind of issues which the commissioner may consider. To that extent, I believe there is a danger that the amendment, if accepted, could give quite the wrong signal to those parties.

As I have already said, the commissioner is to be an independent authority and can be expected to discharge his or her functions in a proper manner. I should add that if an amendment were tabled in such a way as to compel the commissioner to consult with the parties involved before deciding on an application, we would have to resist it, since it would tend to undermine the fundamental principle of the "citizen's right" provisions of the Bill.

The new right will give additional protection to individual citizens deprived of goods or services as a result of unlawfully organised industrial action by allowing them to bring proceedings to halt the unlawful act. The remedy for such a right will be an order halting the unlawful act, which is what the individual deprived of those goods or services would need.

Requiring the commissioner to seek, and consider, the views of the parties involved could cause significant and unnecessary delays to the granting of that remedy, and to that extent undermine the effectiveness of the new right. It would also be quite wrong to suggest that the commissioner ought, as a matter of course, to seek the views of third parties about an application for assistance, since that is a matter to be settled between, and by, the commissioner and the applicant. I hope that my noble friend will understand our reasons for requesting that he withdraw his amendment.

Lord McCarthy

This is the third time this evening that the noble Lord, Lord Mottistone, has sought in the best way that he can find to mitigate and reduce the scope and effectiveness of the clause. It is perfectly understandable that the Minister gives us the answer from the Dispatch Box. Each time, each suggestion is turned down as being unnecessary, impractical or in the Bill anyway. That has been done three times, and I beg the Government to reconsider.

With regard to the amendment which the noble Lord moved earlier, business, as represented by the CBI, is very concerned about the contents of the clause. The Government, too, should be concerned. One does not get that degree of criticism or sustained concern unless a very wide cross-section of employers in British industry are profoundly worried about a particular clause. That is coming through on this clause tonight. I ask the Government very seriously to think again before we return to it at Report stage. The Government are driving business and the CBI into a position which they do not wish to adopt, and in which they will have to say that they oppose the clause root and branch. That is the implied logic of the situation if the Government cannot find it in their hearts to make any change in the clause.

Lord Rochester

Before the noble Lord, Lord Mottistone, decides what to do about his amendment, perhaps I may ask the noble Baroness a question. I understood from what she said that the Government consider that what the noble Lord has in mind would, in effect, be a requirement on the commissioner. But as I understand the position, what he suggests would be covered by the words "may have"—matters to which the commissioner "may have" regard—so that it would be permissive rather than prescriptive, in just the same way as applies to the sentences under paragraphs (a) and (b). I wonder if she can clarify that a little further.

Baroness Denton of Wakefield

The Government recognise the concerns and the issues that have been raised by industry, and we consider them seriously. But it is important that the commissioner should be seen not as a representative of any of the bodies or as involved with either trade unions or employers, but as an independent person. Whilst replying to the noble Lord, Lord Rochester, I would add that since the new right applies only in the case of unlawful industrial action, employees will almost always have the opportunity to bring proceedings themselves.

8.45 p.m.

Lord Mottistone

I thank the noble Lords who have spoken. I think that the noble Lord, Lord McCarthy, was right to draw attention to the fact that there is concern on the part of the CBI about the whole of this clause. When I spoke to a member of that body, I was told that it has 250,000 members who do not like the look of Clause 21. It would be very much better if we could have the minor adjustments mentioned.

I turn to the point made by the noble Lord, Lord Rochester, which I should have made if he had not done so, but I am delighted that he did. I was surprised that my noble friend said at one stage that if my amendment was compulsory she would have to reject it. It is not, of course, compulsory. It comes under the heading of the introduction to subsection (3): The matters to which the Commissioner may have regard in determining … [are] (a) whether it is unreasonable … [and] (b) whether … [the case] involves … substantial public interest". Those kinds of things are rather similar to having regard to the state of the trade dispute. It is not about taking one side or the other. The commissioner, as an independent person, not only would not want to, but could not get an answer if he or she were to take one side or other. Obviously he must find out both from the union and the employer what the state of the dispute is.

I believe that my noble friend, in resisting this amendment, perhaps goes unnecessarily far and makes the clause less acceptable than she need do. However, this is not the time or place to push it further now. I shall have to read carefully what has been said to see what would be appropriate, but my feeling is that I shall certainly want to come back on Report with something not very different from this amendment. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 130 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 131: Page 38, line 26, at end insert: ("() Nothing in this section shall enable the Commissioner to provide assistance to the applicant which exceeds the amount to which the applicant would be entitled under the regulations of the legal aid and advice scheme current at the time of the Commissioner's decision.").

The noble Lord said: I move this amendment with some trepidation, since it might be regarded as rather radical compared with the very good sense in the straightforward amendment of the noble Lord, Lord Mottistone, to which I did not speak but which the Government seem to have extraordinary grounds to resist.

The amendment touches upon legal aid and advice, which is a tender subject at the moment on the Government Benches. But it does no more than that. I believe that the Bill as it stands does not answer the point that when the commissioner comes to render financial assistance to an applicant, it should be limited by the bounds of the legal aid and advice scheme, such as it may be at the time. I have not tried to draft in any technical sense precisely where to find that, but noble Lords on the Government Benches will be able to do it quickly I am sure.

At a time when the levels of legal aid appear to be descending in such a way that many people with few assets and low income are likely to fall outside the legal aid scheme, one must ask the question: why should those particular applicants be favoured who fall within the remit of the new commissioner? It is my contention that they may well have a case to be assisted but it is no more and no less than that of the ordinary applicant for legal aid in the system of justice in this country, and they should not be favoured beyond it. I beg to move.

Baroness Denton of Wakefield

I thank the noble Lord for his comments. However, I do not believe that to imply that the provision of material assistance for proceedings under the new "citizen's right" is in some way comparable to the granting of legal aid. Perhaps I may explain why I do not believe it is right to make such a comparison.

There are important differences between the proceedings for which assistance is to be available through the new commissioner, and those eligible for legal aid. First, individuals bringing proceedings under the new right will not, and indeed, should not, be able to claim damages. The remedy will be an injunction halting the unlawful act. In the case of legal aid, however, it is normal for assistance to be granted for proceedings where damages are the remedy. So the remedies available are quite different.

Secondly, individuals bringing proceedings under the new right may be doing so against the considerable legal and financial resources of a trade union. We firmly believe that for this reason, it is important to provide individuals with special assistance, regardless of their individual financial circumstances. I am sure the Committee will have realised that the commissioner's assistance will only be available for such proceedings, and not for proceedings brought against individuals.

There are, of course, a number of other instances where non-means-tested assistance is available for civil law proceedings. Such assistance can be provided by the Equal Opportunities Commission and the Commission for Racial Equality. It is not being suggested that the amount of assistance from these sources should be restricted by reference to the criteria for legal aid in these cases, and rightly so.

Thirdly, an individual may bring proceedings under the new right where the outcome is of direct interest and concern to a wide range of other people affected by unlawful industrial action.

It is right that the independent commissioner should be able to grant assistance wherever he or she judges this to be appropriate. The commissioner will, of course, be accountable to Parliament for the expenditure of public money in the discharge of the new functions. That is the right approach to adopt in these circumstances.

For those reasons we consider it inappropriate to make any kind of comparison in the provisions between assistance for proceedings under the new right, and assistance provided by the legal aid and advice scheme. I ask the noble Lord to withdraw his amendment.

Lord McCarthy

Yes, there are differences. I may not have noted all the differences mentioned by the noble Baroness. In fact, I only picked out three of them and she may have found more. The point is that the differences do not justify the Government's actions. For example, the noble Baroness said that there are no damages in these cases. But they are only doing for the CPAUIA (the Government called it that because they did not believe we would find a way to turn it into a word) what they are doing for the CROTUM. The CROTUM is totally costless, completely free and will pay out like a lottery. Also you can get damages from a trade union. So why do the Government suddenly give as an example that they are doing for the CROTUM the same as they are doing for the CPAUIA—namely, that it does not have damages? I do not understand.

The second difference mentioned by the noble Baroness was that one had to go against a trade union, and trade unions are very powerful bodies. But if you are wronged and apply for legal aid, you might find that you are going for a multi-national: you might be going against Sainsbury's or against Forte's. They have a lot more money than the Transport and General Workers' Union. What has that got to do with it?

The noble Baroness mentioned the Equal Opportunities Commission and the Commission for Racial Equality who, she said, also give similar kinds; of aid. But the aid is not precisely the same. Moreover, the Equal Opportunities Commission in particular has a very tight budget. It finds every year that there are all kinds of people to whom it would like to give aid but whom it cannot help because it cannot afford to dc so. It does not have the money. We all know that the CROTUM has money to burn. I dare say that the CPAUIA will also have money to burn. So it is not the case that the differences she mentioned can logically support her arguments.

Lord Wedderburn of Charlton

I am grateful to my noble friend. We take almost the same points and I shall not repeat them. I simply refute the notion that the claim against a union is anything special. As my noble friend said, there will not be any extra aid if one claims against ICI or IBM.

The point about damages is bizarre. The fact that one has no claim for damages and therefore one is presumably someone who has not necessarily suffered any material loss from the events would be a claim for getting less aid and not more aid, as the noble Baroness suggested. I follow the point of my noble friend with regard to the other agencies. I have a suggestion which the Government might perhaps consider before we reach Report stage. Let me put it to the noble Baroness.

The issue of money being spent by different agencies on different principles should be cleared up. There are the annual reports of the CROTUM but they are not extremely detailed and do not enable us to understand precisely where the money goes. We know most of the story but perhaps we could have a budget for the CROTUM which is broken down into its cases; also, a budget for the new commissioner who, it seems, will spend something like £300,000 in the first year (let us have the correct figure if that is wrong); and lastly could we have the budgets of the Equal Opportunities Commission and the Commission for Racial Equality broken down by caseload, type of case and successful case. Let us see where there is value for money. We suspect that the Government do not get value for money as regards what they spend on the new commissioners. Certainly we would like something for the CROTUM and perhaps for the CPAUIA.

I put to the Government that by Report stage they should give us, in the interests of open government, more information on what the commissioners are doing. Also, in the same document could we have precise examples of the legal aid equivalents of the type of case which would be brought and the level of support expected there? Of course there is equal treatment. Dicey would have rebelled against the noble Baroness's brief. Of course there is an equality argument between different kinds of applicants for state money to obtain civil justice and there are different sectors of claim. This does not stand out as one to which largesse should be distributed without any bounds. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 132 not moved.]

[Amendment No. 133 had been withdrawn from the Marshalled List.]

9 p.m.

On Question, Whether Clause 21 shall stand part of the Bill?

Baroness Turner of Camden

Even at this late hour I feel that I have to put on record some views as to why, in our opinion, this clause should not stand part of the Bill. We have debated it at length in the context of the various amendments that have been tabled, but regrettably there has been no movement from the Government and no indication that they have understood precisely what a can of worms this part of the Bill may ultimately prove to be.

As we have heard, the clause provides a right for any individual—I stress the word "individual"—who feels deprived or disadvantaged to take action in the courts for an order to restrain industrial action. In Committee we have tried to explore what is meant by being deprived and all we have obtained is some reference to non-quantifiable and immaterial loss. I still do not know what that means. Does it mean that the individual is just a little unhappy?

The remedy will only be available in the case of unlawful industrial action. However, as I said at Second Reading, and my noble friend referred to the point this afternoon, vexatious litigants are not likely to know or even care whether or not the dispute action to which they take exception is lawful. Moreover, the individual concerned will have this new right even if he or she is not a party to a contract for the provision of the goods or services in question.

I should make it quite clear that the trade union movement does not defend unlawful action. The TUC wants to see disputes resolved through established procedures and in conformity with the law. It has said so recently, even despite the fact that the legal hurdles which unions must surmount in order that a dispute should become lawful, are extremely difficult and have been made much more onerous by the provisions of this Bill.

As has repeatedly been said from this side of the Committee during the discussion on the Bill, UK law is far more disadvantageous to unions and workers who have grievances than is the case in many other EC countries. We reiterate our view, which cannot be too often stated, that the Government are in breach of their obligations under ILO conventions.

Employers and union members already have the right to take proceedings to restrain unlawful action. Extending that right to customers or potential customers will be an invitation to anyone with a grudge or a chip on the shoulder to attempt to interfere in the process of resolving the dispute. We must also remember that sections of the media, some of which are wildly irresponsible, may not be backward in urging that type of action upon gullible readers.

Employers, including the CBI—we heard something of that this evening from the noble Lord, Lord Mottistone—have already made clear that they do not welcome such third party involvement in managing industrial relations. The Institute of Personnel Management told the Government in its response to the Green Paper that membership of the institute had not indicated support for the proposal. At that time the proposal was limited to public services. As we have seen today, the Government adhere to the policy set forth in the Bill and have included the private sector as well as public services. The British Institute of Management commented that the proposal could raise the temperature of disputes which should rightly be solved by the employer and the union concerned. The CBI expressed anxiety that individuals who are not genuinely inconvenienced could intervene unhelpfully in industrial disputes.

It is therefore surprising that, in the face of a distinct lack of enthusiasm for their proposition when advanced in the Green Paper, the Government should not only have gone ahead, but have gone further and included disputes in private industry in addition to those in public services. Not only that, as we have seen, a new official—presumably with office facilities and staff—is to be appointed to give material assistance to people who want to pursue such claims—that at a time, as my noble friend Lord Wedderburn said, when legal aid is being drastically cut back so that far fewer people will qualify than formerly.

Presumably there will be no legal aid if one wants to pursue a claim for unpaid occupational pension, for compensation for an industrial injury, or if knocked down by a drunken driver while on the way to work. But should one want to institute a legal action because one's train is late through an industrial dispute, even though one may not even have bought a ticket, then one can go along to this new official who will have the funds to assist.

It is an outrageous proposition based on the Government's assumption that people who go on strike are always wrong; that if we do not like our employment or the wages and conditions involved, we should leave; that the market will presumably take care of us. Of course nowadays we will not get another job but that is just too bad.

My noble friend Lord Stoddart, who I am sorry had to leave, raised an important point. Suppose a group of people who are not in a union decide to withdraw their labour. Against whom would action then be taken? Suppose they all say, "There is no ringleader. We are all disadvantaged and disaffected. We are in it together". Against whom would action be taken? Would we not be proceeding down the slippery slope at the end of which individual workers could find themselves in gaol? That is an extremely dangerous path to follow.

Anyone with any sense knows that disputes do not materialise out of thin air. There are normally good reasons why people are willing to give up pay and go on strike. It should be the job of any decent industrial relations system to establish procedures for resolving issues as quickly and efficiently as possible. Instead of which, the clause in the Bill will make matters much more difficult. It is a rubbishy idea dreamed up in a Conservative think-tank, and in my view it should not be proceeded with.

Lord Rochester

It must be apparent from what I have said in speaking to a number of amendments that I am strongly opposed to the clause, for the reasons that I have given. I shall not detain the Committee further therefore at this stage. I fully support the Motion of the noble Baroness, Lady Turner, that the clause should not stand part of the Bill.

Lord Murray of Epping Forest

Perhaps I may have the tolerance of the Committee at this late stage to register briefly that this is one more "own goal" by the Government or perhaps more accurately put, one more instance of shooting the employers in the foot. The CBI would need to be a centipede to accommodate all the rules inflicted on it by the Bill.

It is said that its purpose is to deter unlawful strikes or, if a strike occurs, to get work started again. As my noble friend said, I have no sympathy for unlawful strikes, but I find it difficult to believe that, in the circumstances when unlawful strikes are likely to take place, people will be deterred from action by Clause 21. Far from making the situation better, it is likely to make it worse.

People on a job may lose their temper and walk out without following the proper legal procedures. The union may not have heard of the action or may even have told them to go back to work, but the members have got their backs up. They are inflamed by the talk of the rights of individual trade unionists which come from the Benches opposite. They may say, "We have the right as individual trade unionists to ignore our union and carry on in our own way". It may be that there is a pig-headed foreman, as my noble friend Lady Turner said.

The employer does not like the action. As the Minister said, the employer can bring proceedings. Perhaps the employer decides not to do that but to sort it out and is in the process of doing so. Then along comes an outsider and sets the heavy hammer of the law swinging just as the employer is sorting out the situation. He will make the situation worse. I can understand why the noble Lord, Lord Mottistone, is worried. I express sympathy with him in what happened earlier. He and his friends will have to understand that the only way of avoiding a situation which we all fear is by removing the clause. I hope that he will take the advice of the noble Lord, Lord Rochester, and think seriously before the next stage about helping us to do precisely that.

Lord Mottistone

I wish to re-emphasise what I said earlier. There is obviously an underlying justification for a clause of this kind. But the points that I was making on the series of amendments which the CBI recommended to me, which represent the view of employers who have great experience in these areas, need a greater understanding and acceptance to modify the clause so that it is manageable for both industry and trade unions. I believe it is necessary to have another look certainly at my two amendments, Amendments Nos. 118 and No. 129. 1 believe that the all-encompassing business of having goods and services without qualification is much too wide. It would be extremely helpful if my noble friends could at least take on board the need for this clause—it would be much better if they told us they were going to do that—so we could be reassured that something would come out at Report stage. In any case, I shall have to think very seriously about what can he done in view of the responses. I hope that something rather better than this clause will be available in due course.

Baroness Denton of Wakefield

At present employers and, in limited circumstances, trade union members can bring proceedings to halt the unlawful organisation of industrial action. The noble Baroness, Lady Turner, quoted several representative organisations in that group. However, such a remedy is not generally available to individuals who are deprived of goods or services as a result of such acts. The clause is based upon the Government's assumption that those individuals should have rights. The clause provides a new right for any individual deprived of goods or services because of unlawfully organised industrial action to bring proceedings to restrain that unlawful act. In addition, the individual may apply to a new commissioner for protection against unlawful industrial action. He will have power to grant assistance for proceedings against a trade union under the new right. The provisions will create a new statutory right for an individual who is or is likely to be deprived of goods or services by unlawfully organised industrial action to bring proceedings in order to restrain the unlawful act. Such deprivation will occur if unlawfully-organised industrial action prevents or delays the supply of goods or services or reduces the quality of goods or services supplied to the individual.

The Citizen's Charter White Paper and my party's election manifesto set out the Government's aim to create a new right of the kind I have just described. In particular, we believe it is right to protect an individual who at present is defenceless in the face of unlawful industrial action by providing him with this new right. We believe that individuals who are affected by unlawful organisation should be given rights to stop that action. The new citizen's right is consistent with the spirit of the Citizen's Charter. It provides protection for individual consumers and customers who will otherwise be defenceless in the face of unlawful industrial action, which may have been targeted precisely to cause disruption and inconvenience. That is why we believe that the clause should stand part of the Bill.

Earl Russell

Before the noble Baroness, Lady Turner, answers perhaps I may ask the Minister whether or not she has any words of comfort for her noble friend Lord Mottistone. I believe that his was a speech that the Government would be unwise to ignore.

Baroness Denton of Wakefield

I assure the noble Earl, Lord Russell, that we take back everything from Committee and look at it very carefully.

Lord Wedderburn of Charlton

Before the Minister sits down, perhaps I may try to get clear where we start on Report. Does she accept that an individual whose disruption and inconvenience (her words) are brought about by an inducement that creates either the breach of a contract to which that individual has a right, or any other right which at law that individual has, will have an action at present? If so, how far beyond that does the new clause go?

Baroness Denton of Wakefield

The new clause gives the individual who may not have rights in any other circumstances the right to seek restraint of unlawful industrial action.

Baroness Turner of Camden

As the Committee will expect, I do not find the noble Baroness's response at all satisfactory. Had we reached this stage in the Bill a little earlier I am sure that I would have tested the opinion of the Committee. It is one of the most important issues in the Bill. I do not intend to do so now, but we shall certainly look closely at the clause again on Report. I am glad that the noble Lord, Lord Mottistone, will also be doing so because as things stand the clause is very unsatisfactory indeed. Unfortunately, we had a Statement on the coal industry earlier this afternoon which, although important in itself, meant that we started proceedings in Committee much later than I would have wished to do. In the circumstances, I do not intend to press this matter to a Division, but I want it clearly noted by the Minister that we are deeply, deeply, deeply dissatisfied with the clause. We shall certainly be exploring it further on Report.

Clause 21 agreed to.

Clause 22 [Right to maternity leave and right to return to work]:

9.15 p.m.

Lord Wise moved Amendment No. 134: Page 40, line 20, after ("Act")") insert ("for section 31A there shall be substituted 31A.—(l) An employee who is pregnant and who has, on the advice of a registered medical practitioner, registered midwife or registered health visitor, made an appointment to attend at any place for the purpose of receiving antenatal care shall, subject to the following provisions of this section, have the right to time off during her working hours to enable her to keep an appointment. (2) In subsection (1) above, antenatal care shall include relaxation classes and parentcraft classes." and").

The noble Lord said: The purpose of this short amendment is simply to clarify a woman's right to time off for antenatal care during working hours. Women were given the right to paid time off for antenatal care by the Employment Act 1980. This time off was not to be unreasonably refused. However, evidence from the CAB shows that this right has been shown to be difficult to enforce on many occasions. The CAB reports many cases of employers refusing women paid time off to attend antenatal appointments despite the fact that this is unlawful.

It seems to me that so much hinges on the wording, not to be unreasonably refused". This amendment clarifies the right completely by changing the wording of the Employment Protection (Consolidation) Act 1978 from, right not to be unreasonably refused time off", to a right to time off. This right to time off for antenatal care is also part of the EC directive which the Bill implements.

When the amendment was moved in Committee in another place my honourable friend Mr. Patrick McLoughlin, the Parliamentary Under-Secretary of State for Employment, stated: Article 9 of the EC directive states clearly that antenatal care should be provided in accordance with national legislation or practice. The existing provisions in United Kingdom legislation fully comply with that requirement". —[Official Report, Commons, Standing Committee F, 12/1/93; col. 291.] He also stated that an industrial tribunal would be capable of deciding whether it was reasonable to allow time off. Therefore, in theory, if an employer refuses to allow paid time off from work a woman can complain to an industrial tribunal which may or may not order the employer to pay the appropriate amount. However, many women are afraid of,.or at least most apprehensive about, exercising this right because they fear dismissal, especially so if they are without two years' continuous service and are therefore not protected from unfair dismissal. There is also the fact that delays in taking tribunal cases could mean that the decision was not made until well after the child was born.

Subsection (2) of the amendment clarifies precisely what antenatal care was intended to cover. It is compatible with government thinking and would bring the law into line with existing tribunal decisions. Studies have shown that it is often the most vulnerable and lower paid workers who experience problems taking time off for antenatal care. I hope that my noble friend the Minister will agree that this amendment will do much to rectify that—for it will remove all doubt, whether reasonable or not. I beg to move.

Baroness Seear

I support the amendment. It reinforces and clarifies what was clearly the intention of previous legislation and is also the intention of European Community legislation, although the argument is, I know, that this should be settled at the level of individual country. It is not a great deal to ask. It is surely reasonable and civilised that a woman who is pregnant and who is still at work should be able to get proper antenatal attention when and as she. needs it. It is part, surely, of policies which follow from the now widespread employment of married women. I cannot believe that the Government will resist the amendment. It simply amplifies and makes more clear what was previously the intention as expressed in earlier legislation.

Baroness Turner of Camden

I rise to support the amendment as well. Organisations such as Maternity Alliance tell me that they often receive inquiries from women who are refused time off for the purposes set forth in the amendment but are hesitant about going to an industrial tribunal because it is important to them to keep their job and they are afraid to do so. The Government may say that a woman refused time off could go to a tribunal, but that is not always a possible alternative. There are often quite long delays before an industrial tribunal can hear a case. For all those reasons and because of the way in which the noble Lord moved the amendment, I hope that the Government will feel disposed to support it.

Baroness Gardner of Parkes

It is a good thing to have this matter spelt out more clearly. On the industrial tribunals which I have sat on for the past 18 years, we get many cases of people attending who are not given time off or—and this is another common ploy—they have to use their day off. If people have one day off in the week and work on Saturday, they are regularly told that they must make their antenatal appointments on that day, which is not fair. It is quite good to have this matter spelt out clearly.

It is important from the employer's point of view and in the interests of justice, that people should only take the time off which is actually required. We get cases before the tribunals where people go for a morning appointment and then do not go back to work at all, or attend an afternoon appointment and take the whole day off. That occurs in areas where there is not much travelling and it would have been very easy to have taken time off for an hour or so and then gone on to work. One has to be a little careful.

I ask my noble friend the Minister to comment on subsection (2) of the amendment. I feel slightly different about relaxation and parentcraft classes. Very often they take place in the evening when the husband and wife or the partners can go together. I am not so sure how that would be co-ordinated. Is that part of the EC directive or is it a new introduction here? In principle I support clarification of this issue.

Lord Henderson of Brompton

Perhaps I may follow the noble Baroness in that last remark. I understood relaxation and parentcraft classes to be included in the definition of antenatal care and that it was in line with existing tribunal decisions.

Baroness Gardner of Parkes

I do not know.

Lord Henderson of Brompton

I thought perhaps that the noble Baroness would be able to agree with that in view of her experience. Nevertheless, I shall ask that question of the Minister. So far no one has mentioned the child, having only mentioned the mother. I consider the child to be as important as the mother. Antenatal provision should be made with the child in view as well as the mother.

I mention that because I believe in another place—although I cannot put my finger on it at the moment—the quaint excuse was made by Ministers that this Bill has no connection with, or validity for, children because it is about employment. So one cannot move an amendment to this Bill because it does not fit neatly into the bureaucratic divisions between the Department of Employment, which promotes this Bill, and the Department of Health which is concerned with children.

I consider that to be a marvellous indictment of the barriers which are built between departments in Whitehall. Does not our future depend on our children? Is their welfare only to be considered in legislation after the child has been born? Is parturition the division between welfare for children and no welfare? Children should be considered while they are in the womb. Antenatal care is very important for the purpose of bringing up our children especially in those parts of the country—for example, the inner cities—which we were talking about yesterday. As everything will be against them when they are born, for goodness' sake let us do everything we can to promote their welfare while they are coming to term. It seems to me that that is common sense. Perhaps I may add one very important consideration and ask the Government to consider bringing down the barrier between the Department of Employment and the Department of Health.

Lord Blease

I should like to speak generally to Clauses 22 and 24 which relate also to Northern Ireland. Our more particular concerns will be dealt with on another occasion in relation to the negative resolution procedure that will be placed before your Lordships' House on some future occasion.

Representations have been made to me by the Equal Opportunities Commission for Northern Ireland. It states: The Bill contains a number of major legislative changes in relation to the treatment of pregnant workers. It deals with maternity leave and the protection of pregnant workers against dismissal. It does not address the issue of maternity pay … the EOCNI is deeply concerned it government's piecemeal approach to the law relating to maternity provision. In order that employees understand their rights and employers their obligations in this area, they will now he required to be familiar with the provisions of and the inter-relationship between the Industrial Relations (No. 2) Northern Ireland Order 1976, the Statutory Maternity Pay (General) Regulations (Northern Ireland) 1987, Social Security (Northern Ireland) Order 1986, the EC Pregnant Workers Directive 92/85/EEC, domestic and European equality law and, in addition, this Bill if enacted for Northern Ireland". The EOCNI briefing also states that the law in this area involves, inordinate complexity exceeding the worst excesses of a taxing statute". It then states: The sheer complexity of the law in this area raises the question whether the Government has in reality provided access to protection for pregnant workers. The time is well past for a clear and unified code dealing with the treatment of pregnant workers which gives clear and full effect to the Government's European equality law obligations within this area". It also states that also overdue is the establishment of a positive right to parental leave. I hope that the Government will accept that input in relation to the Northern Ireland matters that will be covered later in our consideration of the Bill.

Viscount Ullswater

Perhaps I might first address one or two words to the noble Lord, Lord Blease, and thank him for participating in our consideration of the Bill and for bringing to our attention concerns in Northern Ireland. I suspect that the list that he read out was not exhaustive. A whole myriad of laws seems to affect people in employment in one way or another —whether in relation to pay or discrimination. However, these are important measures and, I believe, bring important rights to individuals. I think that I shall be able to demonstrate in my remarks on this clause that these measures should be welcomed by women generally.

Turning now to Amendment No. 134, which was moved by my noble friend Lord Wise, the Government fully recognise the right of women to take reasonable time off for antenatal care. Indeed, women in the UK have had such a right since 1980, whereas those in some other EC member states will get it only as a result of the recently agreed pregnant workers' directive. The Government are satisfied that this existing right, in Section 31A of the 1978 Act, is perfectly adequate. I cannot therefore support the amendment.

The amendment would introduce a new right to antenatal care which would differ from the existing right in two important respects. First, it would have the effect that the amount of time off which a woman was required to be given for these purposes was not subject to any test of reasonableness. In other words, noble Lords appear to be saying that employers should be required to give time off even where that is unreasonable. Such a change would, in the Government's view, be quite unacceptable.

The second change which the amendment would bring about is to qualify the phrase "antenatal care" by providing that it is to be regarded as including relaxation classes and parentcraft classes". I do not accept that such a change is necessary or desirable. In order to exercise the right to time off under the existing Section 31A of the 1978 Act, an employee has merely to give her employer—and even then, only if he requests it—medical evidence that she is pregnant and an appointment card or some other document showing that an appointment has been made. There is no requirement on a woman to tell her employer the exact nature of the antenatal care which she is to receive at that appointment.

"Antenatal care" is not an abstruse technical term but one which is in common usage. Clearly it relates to health care for a pregnant woman and her unborn child during the period of pregnancy. In the case of a dispute, an industrial tribunal would have no difficulty in deciding what was reasonable time off in the circumstances. There is already case law establishing that the term "antenatal care" is sufficiently wide to cover relaxation classes, a point about which the noble Lord, Lord Henderson of Brompton, was inquiring. I know of no case law relating specifically to parentcraft classes., but there is no reason why such classes should not also be covered by the legislation as it stands. I see no justification for making a special distinction in relation to those two particular types of classes among the range of different types of antenatal care which can be provided.

The Committee may wish to note that in those respects UK legislation already provides greater benefits for pregnant workers than are required by the EC directive, which refers to time off for antenatal examinations.

Although I am unable to accept my noble friend's amendment, I am, however, happy to give him an undertaking that when, following the enactment of this Bill, the Government publish a new guidance booklet on women's maternity rights, we will make it clear that relaxation classes and parentcraft classes are among the types of antenatal care for which it may be reasonable to allow time off. With those assurances, I ask my noble friend to withdraw the amendment.

9.30 p.m.

Earl Russell

I thank the Minister for that reply, but he was answering a charge which the movers of the amendment were not making. It was not being alleged that the Government have no respect for antenatal care. Our argument here is not essentially with the Government; it is with those employers who are, as I see it, in contempt of what Parliament has already enacted. I do not believe that the Minister understands how deep is the resistance of some employers to pregnant employees.

I shall give one example which I do not believe can be put down to ignorance. A CAB in Yorkshire reports of a client refused point blank any time off for antenatal care. Her employer is a solicitor specialising in employment law. The changes in the pattern of relationships between the sexes are probably the biggest changes in our social history in 2,000 years. We are probably something like half way through them. So it is not to be wondered at if we meet some resistance from time to time to things which are unfamiliar. That is why the Government have to give a healthy nudge forward here and there where they find people in contempt of what is already on the statute book. The point the Minister made about defining "antenatal care" is one upon which there will be scope for discussion.

Baroness Gardner of Parkes

Women welcome the clause because it contains great improvements. We have a good record on this matter. The points made by the noble Earl, Lord Russell, are valid. We are not just interested in those who show contempt for the law, and I agree that in the case to which he referred the person did know the law. I am constantly amazed by the number of small employers who have no idea what they should be doing for people. People involved in small businesses have no time to be looking up employment law or what they should do. Likewise, the employees have no idea to what they are entitled, what is reasonable and what is not. Therefore, I welcome the noble Viscount's statement that a code of practice will be produced. As I am speaking to this amendment now, I shall not need to speak to my Amendment No. 141; therefore, I am not detaining the Committee.

We need clarification as regards the maternity allowance. The points made by the noble Lord, Lord Blease, showed us how complex the matter is. We want a simple leaflet to be available to women and employers. However, it should be available not only through the CABs, because many working women never have time to get into the CABs. It should also be available through the antenatal clinics or through doctors. It should in some way tie in with the provisions of health care because we can be sure that the women will visit their doctors' surgeries. It would be desirable to have a simple explanation of the legislation so that the employee could go along to her employer and say, "Look, I have this leaflet which tells me what the position is". That would ease a great deal of the irritation which arises on both sides because both employer and employee feel that the other may be taking advantage of the situation. Therefore, I welcome my noble friend's assurance that a code of practice will be published.

Lord Henderson of Brompton

I am not quite satisfied that guidance is sufficient. It may be preferable to incorporate in the legislation something along the lines proposed by the noble Lord, Lord Wise. It may be that the concept of "reasonable" could be incorporated in the amendment. That is one suggestion.

I should like to follow up what the noble Earl, Lord Russell, said. There are many examples of bad practice of one kind or another and they arise from different types of example. They can arise through ignorance, bad practice or oversight. There may be a deliberate refusal. We heard the example of the deliberate refusal by a solicitor who specialises in employment law. That is shocking. If this provision were incorporated in the Act, that solicitor would not presume to deny time off for antenatal care.

We heard of another person who was refused such care. In that case it was described as company policy not to allow time off for antenatal care. Does that not indicate that there should be statutory provision? We heard of a third case where a condition was imposed. Only on the condition that the woman agreed to return to her employment after the birth was she permitted time off for antenatal care. Is the Minister satisfied that employers should be able to impose such conditions as regards the giving of antenatal care? I should have thought that those were extremely compelling examples that such a provision should be inserted into the Bill, perhaps with the qualifying word "reasonable". Those matters should not be relegated to direction or some kind of indication in rules issued by the Minister.

Viscount Ullswater

I should like to answer some of the remarks made by the noble Lord, Lord Henderson. The section of the Act to which he referred gives women the opportunity to take action in this regard. Even if a woman is employed by a solicitor who says that she cannot have time off, that does not prevent her availing herself of the facilities provided by the Act. Indeed, we can only include such provisions in primary legislation once. It is there for women to use. I understand that some women may not wish to make use of it or may be in fear of doing so, but it is there in the Act. That is why, at present, we provide guidance for women to enable them to know their rights. I suggested to my noble friend that when we produce the new guide, which will update the current guide, with the new maternity leave provisions that will he the time to look carefully at these parentcraft classes.

Lord Henderson of Brompton

Would the noble Viscount be kind enough to reply to my point about inserting the word "reasonably" in such an amendment? Clearly the law is not being complied with, partly wilfully by some employers and partly because of ignorance. That means that the law needs to be publicised. In the noble Viscount's opinion, is it sufficiently well publicised? I should have thought that the examples put forward by the citizens advice bureaux show that it is not.

Viscount Ullswater

The noble Lord confuses me. His amendment seeks to take out the word "unreasonably" from the section and now he wants to put "reasonably" back in. He should make up his mind on the matter. We shall certainly decide anything that is reasonable; but that is what the law states at present.

Lord Henderson of Brompton

I understood that that was the noble Viscount's principal objection to the amendment.

Lord Wise

I should have thought that it could only be reasonable that a woman should be allowed time off for antenatal care because it would only be on the advice of her medical practitioner. Therefore, quite honestly, I do not see how that could possibly be unreasonably withheld.

Baroness Gardner of Parkes

I think that we are travelling in circles and going the wrong way round on the issue. As I understand it, the answer from my noble friend the Minister was that the law already gives such a right which cannot be unreasonably withheld. Therefore, he thinks that the amendment as it stands is unnecessary because the provision is already on the face of the employment legislation. He thinks—and I certainly do—that people are not aware of that fact. That is why it is important to have more publicity, or more leaflets available, in order to explain people's rights. I believe that the rights are already there. I understood my noble friend to have said that. As I said, I think that we have gone slightly in a circle.

Lord Wise

Yes. The right is already there; but it is a question of this unreasonable refusal. If the amendment was accepted, it would eliminate all possible doubt. However, I am grateful for the remarks made by those Members of the Committee who have spoken. I beg leave to withdraw the amendment, but will perhaps return to the issue at a later stage.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 134A: Page 40, leave out lines 38 and 39.

The noble Baroness said: The amendment is intended to ensure that women are entitled to paid maternity leave. It would remove the provision in the Bill which excludes the right to pay from the general right to maternity leave. The EC directive on pregnant workers states: Provision concerning maternity leave would serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and/or entitlement to an adequate allowance". The Bill, however, excludes entitlement to pay—perhaps the most important contractual right of all —despite the fact that it is intended to implement the directive.

In Committee in another place, I understand that the Government objected to the inclusion of any right to pay in the Bill on the grounds that it was a matter for the Secretary of State for Social Security, and that an announcement would be made in due course. However, no announcement has yet been made. It is quite unsatisfactory to exclude quite specifically any reference to pay as the Bill does, especially when the Bill makes major changes in women's maternity rights at work. Quite obviously the issues of pay and leave are interlinked in the minds of both employees and employers. While the Government may boast—they probably will - that the UK offers the longest period of maternity leave, it is certainly not the best paid. On the contrary, we are fairly near the bottom of the league of payment. In Germany the figure is 14 weeks on 100 per cent. of salary; in France it is 16 weeks on 84 per cent. of salary; and in the Netherlands it is 16 weeks on 100 per cent. of salary.

In the UK, however, we appear to have a two-tier system. For a woman who has worked two years full time for the same employer, the entitlement is six weeks on 90 per cent. of salary and 12 weeks on statutory maternity pay of £46.30 a week. The second tier arrangement is for women who have been employed continuously for 26 weeks with the same employer. In that event the entitlement is 18 weeks on statutory maternity pay of £46.30.

I am sure that it need hardly be said that the poverty of women and families is greatly increased by a lack of adequate income when women have to stop work temporarily to have a baby. Working wives contribute an average of 25 per cent. of family incomes and in the poorest families this proportion rises to 30 per cent. The period of child-bearing is one of relative poverty for many families, particularly those who are habitually low paid, as the new baby increases demands on the family budget while the income is reduced because of the lack of the woman's wage. Maternity benefits are therefore crucial in ensuring the health and well-being of both mothers and babies.

In case it may be argued by the Government that higher levels of maternity benefit would lead to less employment for women—the argument often advanced when there is pressure to improve social conditions and wage levels for women—it must be said that no evidence has been produced to establish a link between levels of employment and levels of maternity provision.

Incidentally, the amendment does not deal with levels of maternity benefit in any event. Nevertheless I would be grateful for the Minister's response. I must say it seems to me inappropriate—this point has been referred to by a number of Members of the Committee, including my noble friend Lord Blease —that provisions relating to equal rights, maternity benefits and the rest should be scattered over so many different pieces of legislation. I think that pay is a crucial element in the discussion of leave for maternity purposes. I await the Minister's response. I beg to move.

9.45 p.m.

Viscount Ullswater

If a woman's contract of employment entitles her to receive her normal remuneration—that is, her wages or salary—during maternity leave, then the Bill will not affect that entitlement. However, to provide that she should continue to receive her normal wages even where she had no such contractual entitlement—which would be the effect of this amendment—would place an entirely unreasonable additional burden on employers.

Improvements in employment protection rights have necessarily to be balanced against their costs and their likely impact on employment opportunities. The amendment would impose very substantial increased costs—of the order of £400 million to £500 million per annum, we estimate. Such a heavy burden could regrettably deter many employers from taking on women of child-bearing age and would have severely damaging effects on their employment prospects.

The EC Pregnant Workers Directive contains no such requirement. Rather it provides that women should receive an adequate payment or allowance during maternity leave. After long and difficult negotiations, which were brought to a successful conclusion under the UK Presidency, the EC Council of Ministers decided that women on maternity leave should be paid no less than the statutory pay to which they would be entitled when absent from work due to sickness. Maternity benefits are, however, a matter for my right honourable friend the Secretary of State for Social Security, and he will in due course be bringing forward legislation to implement the maternity pay requirements of the directive. I cannot therefore support this amendment and I ask the noble Baroness to withdraw it.

Baroness Turner of Camden

I wonder whether the Minister can give the Committee any indication of when the Secretary of State for Social Security is likely to make an announcement on this issue. We are debating maternity leave. As I said earlier, women also want to know what they are likely to receive by way of remuneration. I did not make the plea for full pay; I simply referred to those cases in the EC where full pay is available in certain instances. At present there is statutory maternity allowance. That is not a great deal of money. If we are looking at maternity leave presumably pay is also being examined, I hope to consider whether any increases may be available. Is it known when there is likely to be such an announcement?

Viscount Ullswater

The directive was not adopted until 19th October. Unlike the provisions concerning maternity leave and dismissal, the provisions on pay were in doubt until the very last minute. That is why negotiations on the directive were so difficult.

I can only say that the Government need time to consider the implications of the text very carefully. As the directive was adopted only on 19th October last year those implications are not clear.

Baroness Turner

of Camden: I hope that it will not be too long before there is an announcement because when considering maternity leave, people also think about the amount of allowances to which they are likely to be entitled when they take the leave.

I do not intend to press the amendment this evening, but I am glad to have had the opportunity to put on record the views just expressed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 135: Page 40, line 44, at end insert: ("()For the purposes of subsections (1) and (2) the provisions of any occupational pension scheme applying to the employee shall be treated as if they were terms and conditions of the employee's employment which would have been applicable to her if she had not been absent (and had not been pregnant or given birth to a child) and as terms and conditions of the employee's employment not relating to remuneration.").

The noble Baroness said: The amendment is an attempt to clarify the situation with regard to occupational pension provision. Section 33(1), on page 40 of the Bill, states that a woman shall be: entitled to the benefit of the terms and conditions of employment which would have been applicable to her if she had not been absent".

It is not always clear whether the terms of an occupational pension scheme can be treated as an employee's contract of employment. Therefore, if the woman cannot prove that the terms and conditions of employment applicable to her include the occupational pension scheme, she may find that in regard to that scheme she is not considered as having been continuously in employment for the period during which she took maternity leave. Perhaps the value of the employer's contributions will not, therefore, accrue to her.

The Minister may claim that Schedule 5, paragraph 5 of the Social Security Act 1989 already provides protection of women's occupational pension rights while on maternity leave. I understand, however, that that provision has not yet been brought into force. Meantime in this Bill we are dealing with maternity leave and the rights, to which pregnant women become entitled at work. It would be appropriate to deal with the matter of occupational pension provision in this section.

Indeed, this issue has aroused some interest in the press. I remember reading recently an article in the financial columns of one of the Sunday newspapers in which the issue of occupational pension provision during maternity leave was raised quite sharply. Therefore, we are not the only ones to have some anxiety about the matter. I await with interest what the Minister has to say on the subject. I beg to move.

Viscount Ullswater

I am sorry that the noble Baroness, Lady Turner of Camden, felt it necessary to table the amendment. I thought that the subject had been fully aired in another place. However, I hope that I can reassure the Committee that we are entirely in accord with the amendment's aims but that the amendment itself is wholly unnecessary.

The EC directive, and the Bill, provide that an employee's right to normal wages does not have to be continued during her maternity leave—in other words, it can stop when she stops work to have her baby. But that is the only contractual term which does not continue. All her other contractual rights continue throughout her 14 weeks' leave. That includes her contractual pension rights. Nothing more needs to be provided in the Bill to achieve that.

When it was first published the Bill used the word "pay" for that part of the contract which was not to continue throughout maternity leave. However, on further reflection it was considered that the word "pay" might, mistakenly in our view, be interpreted too widely, to cover matters such as pensions and other non-monetary aspects of the payments package which might then be withheld. We never intended that, and in any case it would be contrary to the Pregnant Workers Directive.

The Government therefore amended the provisions to refer to the narrower term "remuneration" rather than "pay". I can assure the noble Baroness that that will have the desired effect. The term is used elsewhere in employment protection legislation, in particular in Schedule 14 of the Employment Protection (Consolidation) Act 19'78, where it has been interpreted in the way that we intend. We will make clear in our explanatory guidance that pensions and other matters beyond monetary wages and salary are not included in the term "remuneration" and are therefore required under the statute to continue throughout the maternity leave period.

I hope that the noble Baroness is suitably reassured and will withdraw the amendment.

Baroness Turner of Camden

I am grateful to the Minister for his explanation. I believe that it was necessary to explore the issue again. I am quite convinced that there is a lack of understanding—there certainly was on my part—that occupational pensions were covered in the way that he indicated. In view of what he said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 136: Page 41, leave out lines 1 to 20 and insert: ("34. An employee's maternity leave period commences on the date specified in section 37 being a date not earlier than the beginning of the eleventh week before the expected week of childbirth or the day on which childbirth occurs, whichever is earlier.").

The noble Baroness said: With Amendment No. 136 I speak also to Amendments Nos. 137 and 138.

As the Bill stands, it could possibly penalise women who are off sick due to a pregnancy-related illness. If that involves an absence before or during the 11 weeks before the expected week of confinement, as I understand it the absence would be considered as maternity leave from the beginning of the eleventh week. It would thus seem that it would be possible for a woman's maternity leave to be used up if she had been sick before the birth. That clearly is not acceptable.

Therefore we welcome the response of the Minister. It is a relatively simple and brief point. A similar point arises in Amendments Nos. 137 and 138. If the amendment were accepted it would protect someone who has sickness but who is in danger of using up the stipulated period of leave unless the amendment is accepted. I beg to move.

Viscount Ullswater

Noble Lords will not be surprised to hear that I am unable to support the amendment. I understand from the grouping on the Marshalled List that we are speaking to Amendments Nos. 136 to 138 and 142 to 147.

While I am firmly of the view that the start of maternity leave as far as possible should be a matter of individual choice, this must not be at unacceptable expense to others. The Government have already given very careful consideration to the kind of matters raised by the noble Baroness, and indeed have already taken them on board as far as possible.

The two groups of amendments have broadly the same intention. Those moved by the noble Baroness, Lady Turner, also have the admirable aim of simplifying the provisions. Unfortunately, however, this is only achieved, and can only be achieved, at unacceptable cost. It would increase burdens on employers unjustifiably to allow women to choose when to begin their leave right up to the birth, even if the imminence of the birth meant they were not well enough to continue working. The provisions in the Bill need to balance employees' rights against the cost to employers. They need to provide flexibility where necessary. I regret that the noble Baroness's amendments do not meet those requirements.

It has always been the Government's intention to allow a woman freedom of choice about when to start her maternity leave right up to the birth in almost all cases. However, where a pregnant employee is absent for a pregnancy-related illness it becomes necessary to consider the additional burden that this may place on employers.

In such a case where she was obliged to start her maternity leave soon after the eleventh week before the baby was due, the woman's leave could run out much earlier than she had intended and she would be left with less time at home with her baby after its birth than she had planned for.

The provisions were therefore amended to give all employees, including the minority who suffer a pregnancy-related illness, complete freedom of choice between the eleventh and sixth week before their baby is due. Accordingly, a woman who is sick for any reason during that time will be able to choose to take sick leave rather than begin her statutory maternity leave.

No woman will therefore be obliged to start her maternity leave earlier than six weeks before the expected birth, allowing a valuable period of leave after the birth. Those who remain well will, of course, still have complete freedom of choice about when to start their maternity leave from the eleventh week right up to the baby's birth.

However, we did not think it justifiable to go so far as the noble Baroness proposes. If the employee becomes ill for a reason connected with the impending birth as near as six weeks or less before the baby is due, her maternity leave will be automatically triggered to begin.

Indeed, most women will have already stopped work by this time. Only this small minority could be compelled under the Bill's provisions to begin their leave earlier than they would otherwise have chosen —and most of them are in any case likely to stop work of their own accord rather than because they have to.

The research found that 85 per cent. of pregnant employees were ready to begin their leave on or before the sixth week. However, if the noble Baroness's amendments were agreed, anyone who was unable to work for a pregnancy-related reason might continue to take sick leave right up to the birth of her baby. This would artificially extend her total period of leave and would be an unacceptable burden on employers, who would be obliged to cope without her for much longer than they had envisaged.

The noble Baroness will, I feel sure, acknowledge that we have gone a long way down the route that she proposes. I hope she can now also agree that it would be unreasonable to impose the further burden on employers that the amendments would require.

Baroness Turner of Camden

I am not altogether surprised that the Minister has taken that attitude to the amendment, although I would point out that the amendment and others of a similar nature appear on the Marshalled List with the support of a number of organisations. They include specialist ones concerned with maternity like Maternity Alliance, the Fawcett Society, the Equal Opportunities Commission and other organisations concerned with women's rights, particularly in maternity.

I am disturbed to learn that the Minister advanced as a reason for not accepting the amendment that it would be an unacceptable burden on employers, presumably because it would cost too much. Yet a few sentences later he acknowledged that it would apply only in a small minority of cases. We are talking about a small minority of women who become ill during pregnancy. Unless there is a provision of this kind, they could well use up the entire, or a large part of, their maternity leave, with only a small part left after the birth of the baby, in order to stay with the baby before returning to work.

I am disappointed that we have not received, if I may say so, a more understanding response from the Minister. However, it is not my intention to press the amendment at this stage, even though we may come back with something similar at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 137 and 138 not moved.]

10 p.m.

Baroness Seear moved Amendment No. 139: Page 41, line 23, leave out ("fourteen") and insert ("eighteen").

The noble Baroness said: This amendment substitutes the period of 18 weeks for 14 weeks. Before the Minister tells us that this would be an unbearable additional burden on employers, I would point out that in some ways it will simplify employers' lives because the statutory sick pay period is 18 weeks. This would bring the periods into line so that employers would not have two different periods with which to deal when making their calculations. The cases would be the same.

The extension of the period to 18 weeks is strongly supported by organisations such as Maternity Alliance and others concerned with the well-being of women. I very much hope that the Government—who are not in a giving mood this evening—will realise that this is an improvement which would be widely welcomed. It makes good sense and would add little to the burdens on employers. I beg to move.

Baroness Turner of Camden

I rise to support the amendment which has already been moved by the noble Baroness, Lady Seear. Many women choose to leave work 11 weeks before the baby is due. A recent study showed that 48 per cent. of women had stopped work by the 1lth week; 37 per cent. said they stopped because of tiredness or illness. Under the new scheme, if a woman leaves 11 weeks before the baby is due, as said on the earlier amendment she will have only three weeks' maternity leave after the baby is born. As I said earlier, that is clearly inadequate. I am sure that, as with the previous amendment the Government will advance the cost argument as their reason for complying with the EC directive to only the minimum extent necessary. But many employers welcome what is proposed in the amendment. It takes time and money to train staff. If a woman is bound to return after 14 weeks, she may decide that it is better not to come back at all. If she has the extra time, her reaction will almost certainly be different.

One of the major banks, which operates very good child-care provisions, including leave for family reasons, estimates that the provision of good maternity leave—I emphasise good maternity leave —saves £8,000 to £10,000 a head on replacing employees.

Extending the period of leave to 18 weeks would also have, as the noble Baroness, Lady Seear, said, the advantage of simplification. It would line up with statutory maternity pay. Employers already administer 18 weeks' statutory maternity pay. There is no evidence that the additional weeks would add to administrative difficulties; the reverse may possibly be the case. There may well be savings if a woman's return to work is easier and smoother, as it surely would be after 18 weeks' leave. Maternity leave is too short. Some women may have to take sick leave after maternity. In such a situation the employer would be in a worse position than if we had had the longer period in operation already. So there are a number of arguments in favour of the amendment and I hope that the Government will look favourably upon it.

Lord Henderson of Brompton

On a previous amendment, I asked if it was possible for the welfare of the child to be considered in an employment Bill. I spent a minute or two on that subject but received no answer from the Minister. I wonder whether he would consider answering on this amendment. There are compelling reasons why women should maintain breast-feeding. This amendment would help them to do so. That is in line with the policy of the Department of Health. Recent research has shown that UK babies who are breast fed for 13 weeks or more a re three times less likely than bottle-fed babies to contract gastro-intestinal illness. Breast feeding also protects against respiratory infection, childhood cancer, diabetes and cot-death.

The Parliamentary Under-Secretary of State for Health, the noble Baroness, Lady Cumberlege, speaking on behalf of the Government, stated: We are quite clear and unequivocal that mother's milk is best for babies—particularly for the first few weeks of life. This is the message we must get across to all mothers". I would add: "To all legislators, and particularly to Ministers in the Department of Employment".

Viscount Ullswater

The noble Lord, Lord Henderson, asked me to consider the effect on the baby as well as on the mother and chided me for not having spoken already to that point on a previous amendment. When looking at maternity leave, we have to consider very carefully indeed the health of the mother. In doing so we could not ignore the child. Therefore I believe that the remarks we are making about maternity leave implicitly include the health and welfare of the child.

I must tell the noble Baroness, Lady Seear, who moved the amendment, that I cannot accept it. It has been thoroughly debated in another place. To increase from 14 weeks to 18 weeks the length of the statutory maternity leave to which all women are entitled, irrespective of length of service or hours of work, would increase employers' costs significantly. Fourteen weeks' leave has been accepted by all EC member states in the terms of the pregnant workers directive as being a reasonable minimum statutory leave entitlement. The noble Baroness argued that 18 weeks is necessary because 14 weeks may give women insufficient time with their baby after the birth and also because it coincides with the statutory maternity pay regulations as they exist at present.

Let us examine the facts. The Bill would allow all pregnant employees complete freedom to choose when to begin their maternity leave right up to the time of the birth, with the sole exception of the small minority who suffer a pregnancy related sickness during the final six weeks before the birth, whose leave will be triggered by their first day of absence.

I still have the feeling that the noble Baroness, Lady Turner, in some way is indicating that sickness would compel them to start their maternity leave earlier, which would not allow them the full eight weeks after the child is born. I want to make certain that she understands that point. She said that it would leave perhaps only three weeks after the child was born. If it is a pregnancy related illness they would only have to start maternity leave six weeks before the estimated birth of the child, unless they chose to start earlier.

Accordingly, the great majority of women will be free to take most of their maternity leave after the birth and even the minority whose leave is triggered, by sickness will have a considerable period of leave remaining after the birth. The Bill does not prevent employers and employees from negotiating a longer period of leave on a voluntary basis according to their own priorities, needs and circumstances.

Furthermore, women who meet the qualifying criteria will be entitled, as at present, to a longer maternity absence. In addition to their 14 weeks' maternity leave, which may begin up to 11 weeks before the expected week of childbirth, they will be able to take a further absence lasting up to 29 weeks from the beginning of the actual week of childbirth, giving a total of up to 40 weeks' absence from work (or longer if the baby is late) as under the present provisions of the 1978 Act.

With those reassurances, I ask the noble Baroness to withdraw the amendment.

Baroness Seear

I am sorry but not in the least surprised by the reaction of the noble Viscount. At this time of night and with so few Members present, it would be foolish to press the amendment. Therefore I must regretfully withdraw it.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 140: Page 41, line 23, leave out from ("or") to end of line 24 and insert:

  1. ("(a) if earlier, until the employee returns to work in accordance with section 37A, or
  2. (b) if later, until the birth of the child.").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 149. Amendment No. 140 makes clear that a woman may, at her discretion, decide to end her maternity leave and resume her career at any point in time rather than having to wait out the full 14-week period or longer. I fully appreciate the requirement to provide for 14 weeks' maternity leave, which is an obligation placed on the Government by the European directive on the protection of pregnant workers.

However, it is highly probable that the proposed wording to implement that part of the European law will lead to confusion in what is already a complicated area for both employers and employees alike. The problem is that, if Clause 22 is left as currently drafted, it will introduce a new Section 35(1) into the 1978 Act. That in turn will state that once a woman commences her maternity leave it shall continue for at least 14 weeks. But what happens if the woman decides to return to work after, say, 13 weeks or some other shorter period? Is she to be treated as being at work —which she is—and paid accordingly? Or is she to be treated as not at work but still on maternity leave? We believe that the latter position, though contrary to good sense, is what the Bill currently demands.

By way of example of the problems that may arise, I heard of a dedicated and presumably healthy professional woman who only took one week off for both her children, including the birth. She would no doubt be extremely unpopular with the noble Lord, Lord Henderson of Brompton, for not doing what, in his view, is right. But I understand that the children are healthy and so is the mother.

Amendment No. 149 achieves two further important advantages in the conduct of good employment practice. First, it will align the requirements placed on all women who wish to return to work. Rather than have one rule for women who have two years' service or more and, confusingly, another rule for all other women, it would be far better to have a uniform rule; that is, that all women should have the right to return to their careers upon giving their employers advance notice. It is undoubtedly an advantage to have a simple uniform rule. The second advantage arises as a result of the first; that is, that the employer will know with some certainty that a woman is returning, when she is returning and that she has returned to work. It is the "when" that is important. As drafted the Bill does not call for that.

The current drafting of the Bill permits a woman to commence maternity leave, return to work, go back on maternity leave and so forth for a duration of at least 14 weeks. Meanwhile, the employer will not know where he stands in relation to the employee from one week to the next.

The problem does not arise only with the employer and the employee; it arises also with the person the employer has to find to stand in for the employee who is away. That is particularly difficult for the vast number of medium-sized companies which do not have the flexibility of large companies which have people who can come in as replacements in skilled jobs where replacements are essential. Small companies, which have considerable problems anyway, will have to make special arrangements to make themselves flexible. But it is the middle-sized companies, of which there are a vast number and which are extremely important, to which the problem mainly applies.

The Government may be sympathetic to Amendment No. 149. I hope that they are, because it is a problem that must be addressed. I beg to move.

Baroness Gardner of Parkes

I find these amendments slightly worrying. Perhaps in his reply the Minister will make clear whether there would be a breach of the European directive if people were allowed to take less than 14 weeks as is provided for in the amendment. As I understand it, if it was by mutual agreement, the situation might be different. My worry is that an unscrupulous employer might put pressure on someone to come back before the 14 weeks expired if there was authority to do that.

As a small employer I find it extremely difficult when people say that they are going to return after maternity leave and the vacancy has to be kept open and temporary staff employed. On the two occasions I experienced it, the employees did not return. It was disappointing when such a lot had been done to keep the vacancy open for them.

I therefore understand the difficulties. But many women themselves are not sure whether or not they want to return or exactly how and what their circumstances will be after the baby is born. One must give notice before one takes leave and therefore the mothers have to commit themselves before they really know what their situation will be after the birth. I therefore have some reservations about the amendments.

Viscount Ullswater

I have considerable sympathy with my noble friend's points, particularly in respect of his second suggestion about notice of an early return.

In the majority of cases the employer will be in no doubt about when to expect his employee to return to work after maternity leave. Most women will take their full entitlement, and most of those who do not will want to be in touch with their employer in any case.

I can see that it may be difficult for an employer who has had to take on a temporary replacement to cover for a woman on maternity leave if she turns up on his doorstep without warning before her leave is exhausted and simply announces that she is back. The employer would probably have to give her replacement at least a week's notice. I agree that the Bill should provide some assistance for the employer in these circumstances. I hope my noble friend will accept my undertaking to consider this further and to return with a suitable government amendment on report. However, I hope I can persuade my noble friend that his first amendment is unnecessary and, to the extent that it has any effect at all, will be likely to call into question our adherence to the directive's requirements, as carefully pointed out by my noble friend Lady Gardner of Parkes.

My noble friend is concerned that there will be confusion about whether a woman who has returned to work before the end of her maternity leave period will nevertheless still be treated as if she is on leave until the end of the 14 weeks. In effect, will there be a query about her entitlement to normal remuneration? This is very largely a drafting matter, but I think the provisions are clear enough on this point. The special provisions in new Section 31(1) which continue the woman's contractual benefits other than remuneration apply only when she is absent from work. If she is not absent her normal contract applies without any special adaptation.

In practice, we do not consider there will be a great deal of difference between the approach the Bill takes and that adopted in the amendment, but the Bill ensures marginally better dismissal protection and freedom of choice about working during the 14-week period. This is consistent with the directive and I cannot accept that we should change this position. I hope, therefore, that my noble friend will not press this amendment.

Lord Mottistone

Perhaps my noble friend will clarify one point. I believe that he referred to new Section 31(1). Was he really referring to Section 35(1)?

Viscount Ullswater

I am sorry if I confused my noble friend. I was referring to Section 33(1).

Lord Mottistone

I thank my noble friend particularly for what he said about my second amendment, Amendment No. 149. I shall look forward with great interest to seeing an amendment of his to cover that ground at the next stage of the Bill.

I understand the misgivings of noble Lords. I will read with great care what my noble friend the Minister and my noble friend Lady Gardner of Parkes have said to see whether I wish to pursue the first of the two amendments. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Seear moved Amendment No. 141: Page 41, line 24, at end insert: ("() Subject to subsections (2) and (3), an employee may extend her maternity leave if, before the expiry of her maternity leave, she gives her employer a certificate signed by a registered medical practitioner stating that by reason of disease or bodily or mental disablement, she will be incapable of work at the end of her period of maternity leave. In such case her maternity leave shall continue until the expiry of the period for which she is certified by a registered medical practitioner as being incapable of work.").

The noble Baroness said: I very much hope that the Minister will consider this amendment favourably. It applies to only a relatively small number of people and depends upon a registered medical practitioner making quite clear that a woman is suffering from a pregnancy-related illness. When that is so and the registered medical practitioner is prepared to state that such is her condition, her maternity leave can be appropriately extended. Obviously there are certain cases where this measure will be most appropriate, and I very much hope that the Minister will accept the amendment. I cannot think that it will involve a great deal of additional expenditure.

Baroness Gardner of Parkes

The only point that causes worry is that the registered medical practitioner can be anyone, such as the woman's GP. We find in tribunal that many medical practitioners are quite happy to sign anything for anyone. Therefore, if one is to consider this amendment—which I believe has great merit—it should be possible for either the employer's doctor or an entirely independent doctor to give an opinion as well as the GP. My experience is that most GPs do not like to displease their patients and regularly sign certificates that the tribunal finds somewhat questionable.

Lord Mottistone

I support that second statement. The poor company that is landed with this would have to pay the person who is incapable of work for ages—for years perhaps. Any guarantee of the nature my noble friend suggested would be vital.

Viscount Ullswater

I have listened carefully to the arguments put forward by the noble Baroness but I do not agree that this is an amendment we should accept. It would, in fact, provide very little further protection than is already provided under the terms of the Bill before us; and to the extent that it does provide extra protection, it goes too far. The Bill has got it right.

The noble Baroness suggests that employers are likely to dismiss a woman purely because she is ill as a result of the birth of her baby and cannot return to work after maternity leave. I do not believe that this would be a common occurrence. In any case, if the real reason for the woman's dismissal is that she has exercised her right to take leave, she is protected under the Bill as drafted. If it is that her employer thinks mothers make bad employees she is protected by the Sex Discrimination Act. If she has two years' service she can complain of unfair dismissal. And the Bill already protects the woman in exactly the circumstances envisaged by the noble Baroness for four weeks after the end of her maternity leave period.

What cases will fall through this tightly drawn net? The only cases will be those where the woman cannot return to work even four weeks after the end of her maternity leave and whose employer therefore sacks her. Such cases cannot be common. But in any event I do not think it would be right to insist that an employer had to carry such an employee indefinitely, as the amendment would provide. I rather agree with my noble friend Lord Mottistone. The provisions give women very strong protection against dismissal, going beyond the requirements of the pregnant workers directive. To go any further would be, as I have said before, an unreasonable burden on business. There must come a point when the woman cannot claim special treatment but must take what is offered to all the other employees in the workforce who have no special protection if they are absent on long-term sick leave. I hope we can all agree that the amendment is unnecessary.

Baroness Seear

The noble Viscount is exaggerating the number of cases that are likely to arise. I imagine that the kind of case envisaged is postnatal depression, which I understand is not a very common complaint. But it does occur and it takes time to get over. It is in cases of that kind that the amendment would be helpful. Once again, there is no point in pressing it further at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Gardner of Parkes moved Amendment No. 141A: Page 41, line 24, at end insert: ("() Subject to subsections (3) and (4) below, where an employee has been continuously employed for two years by the beginning of the eleventh week before the expected date of childbirth, her maternity leave period shall continue from its commencement for the period of 40 weeks or such earlier date as the employee notifies to the employer in writing.").

The noble Baroness said: I do not intend to go into this amendment in detail but just formally to move it and say that its purpose is to simplify the Bill. I ask for the Minister's comments.

Viscount Ullswater

During the 14-week minimum period of maternity leave which the Government are introducing in the Bill, women's contracts of employment will subsist and they will have a statutory right to continue to receive all the benefits of those contracts as if they were still at work. The only exception is entitlement to normal wages or salary.

During the additional maternity absence period, however, whether or not the contract subsists will depend on its own provisions, and women will have no statutory right to their normal terms and conditions of employment. Rather, this will be a matter for negotiation and agreement between the employer and the employee, according to their priorities, needs and circumstances. That is the position at the moment for those women who qualify for maternity absence, and the Government see no justification for changing it.

If we were to accept the amendment, it would mean that a woman during the long maternity absence period would always retain the right to full contractual benefits—luncheon vouchers, say, or a company car, or continued accrual of pension contributions or holiday entitlement—even if the contract of employment, as agreed between the employer and employee, specifically provided that such benefits should not continue during that period of absence.

No such change is required by the EC pregnant workers directive, and it would in the Government's view be a wholly unjustifiable additional burden on business, which would damage women's employment prospects. With that explanation I hope that my noble friend will be willing to withdraw her amendment.

Baroness Gardner of Parkes

I thank my noble friend for that very full explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 142 to 149 not moved.]

10.30 p.m.

Earl Russell moved Amendment No. 150: Page 43, line 13, at end insert:

("Paternity leave

39.—(l) An employee whose spouse has given birth shall be entitled to take ten working days leave (referred to in this section as paternity leave).

(2) Paternity leave can be taken at any time from the birth until the end of three months following the birth.

(3) An employee on paternity leave shall be entitled to full pay.

(4) The employee has the right to decide when to take paternity leave except that the employer must be given:

  1. (a) 21 days notice of the expected week of confinement of the employee's spouse, and
  2. (b) reasonable notice of the time when paternity leave is to be taken when that is practicable.

(5) For the purposes of this section a spouse includes a man and a woman who are not married to each other but are living together as husband and wife.

(6) Regulations may provide for the provisions of the 1978 Act and Schedule 2 to this Act, to have effect as if the words "given birth" were substituted "accepted the placement of a child for adoption" and the regulations may include such incidental or supplemental provisions as appear to the Secretary of State necessary or desirable." ").

The noble Earl said: The purpose of this amendment is to introduce a provision for paternity leave. It provides for 10 days paternity leave to be taken within the first three months, with due notice and reasonable provision to be given to the employer. It is a provision which already exists in the United States where it is extremely popular. Fathers often wish to get involved at an early stage. That is something which ought to be facilitated.

I have indicated already that I believe that we are going through an enormous process of change in the patterns of division of labour between the sexes. That is the situation in which stereotypes must change and in which the law has to change to keep up with them. It is not the business of the state to press people towards one pattern or another. The process of adjustment will take a very long time and it will be very individual and very far from uniform. The state should avoid making it needlessly difficult for people to work out those adjustments for themselves.

Members of the Government talk from time to time about the need to encourage and strengthen the family. There is a lot of sense in that. I have never ceased to be grateful that my own eldest child happened to be born in the vacation. The extra involvement which that made possible did make possible a process of bonding which I believe otherwise could not have happened.

Those first few days with the new baby are also a very busy period indeed. Even if there is not any shifting of the stereotypes, there is a vast amount of extra things to do such as rushing to and fro to the chemist and fetching this and that. A great many men may wish to be at home to contribute to that. If they are able to do so the mother may—if I may revert briefly to the previous amendment—be able to recover faster and return to work sooner. That may well be in everybody's interest.

There is here a vast process of redefining roles to be done. When the man was the breadwinner then obviously the woman was the person responsible for childcare. When both parents work, I do not see why couples should not be able to work out for themselves how they divide the childcare. The Minister will probably make the point about the burden on business. It is a point which needs to be listened to because industrial costs should not wantonly be increased. However, if our industry is to work, it must be able to recruit the ablest people—the same sense as when Lord Palmerston, talking about Catholic emancipation, said that it was not in the public interest to exclude so many able persons from the public service.

If we are to employ the ablest people, which is in the interests of industry, the country and everybody, the law will have to make precisely the kind of adjustments suggested by this amendment. I beg to move.

Baroness Turner of Camden

I wish to support this amendment. It is a very modest amendment. It stipulates that 10 working days should be available to be taken as paternity leave. I understand that in the other place the Government claimed, in response, that it would place further burdens on employers—the usual argument which we have already heard this evening. However, no evidence to that effect has been produced.

There is now a widely held view, to which the noble Earl, Lord Russell, has referred, that the sharing of childcare responsibilities between mothers and fathers is socially desirable. Not only does it mean that women are thus able to achieve greater genuine equality; it also leads to much greater involvement by fathers in their children's lives and in their development. It is believed that establishing strong paternal bonds at birth can facilitate that process.

At a time when there is so much concern (often voiced by Government spokespersons) about the decline of family loyalties and commitment—about the breakdown of social cohesion—it seems strange that hitherto the Government have set their face against introducing provisions of this kind. A recent EOC study indicates that 91 per cent. of fathers favour the introduction of statutory paternity leave. Article 6 of the European Council recommends that member states should promote and encourage increased participation by men in order to achieve a more equal sharing of parental responsibilities between men and women to enable women to have a more effective role in the labour market.

There is some evidence that good employers are already providing varying periods of paternity leave to employees. The Government may say, "That is all right because it is a voluntary arrangement and up to the parties concerned", but a statutory obligation would mean that employers who are not quite so good would be bound to raise their standards. Surely that would be an excellent thing. I support the amendment.

Viscount Ullswater

I am not able to accept this amendment. I do not consider that the measures proposed in this amendment are appropriate matters for legislation. The purpose of the statutory maternity provisions is to safeguard the mother's career while also giving her a period to prepare for and recover from childbirth and to nurse and care for her baby in its early life. The same considerations simply do not apply to paternity or adoption leave.

The introduction of such statutory requirements would unreasonably increase employers' costs and reduce job opportunities. I firmly believe that such measures—whether they concern paternity leave or adoption leave—are best dealt with on a voluntary basis by individual employers directly with the employees concerned, according to their own particular needs and circumstances.

With regard to paternity leave, the majority of companies in the UK do approach these matters on a voluntary footing. This ensures that they have the flexibility to tailor arrangements to the particular circumstances of each case, and allows them to take proper account of what can be afforded. Evidence has shown that this approach is working well. Recent CBI survey figures, for example, showed that 76 per cent. of employers surveyed offer men time off when their partners have a baby. To single out and impose one particular set of arrangements by law would undoubtedly jeopardise the wide range of voluntary childcare arrangements already in place.

Turning now to the suggestion that the maternity provisions should be extended to adoptive parents, I sympathise with the noble Earl's motives in bringing forward such a proposal, although it is doubtful whether the amendment as drafted would achieve this effect. I recognise that adoptive parents can sometimes face difficulties in combining work and family responsibilities. However, I have to say that I do not think that this is an appropriate matter for legislation.

The Government have carefully considered suggestions which have from time to time been made for the introduction of statutory maternity rights for adoptive mothers, but there are in our view too many differences in circumstances between adoptive parents and birth parents to allow the application of the same provisions.

I understand that only about 15 per cent. of adoptions in England and Wales are of children under one year of age. Many adoptions can, and do occur up to the age of 18, sometimes after a period of long-term fostering. In these cases, the kind of considerations which underlie the provision for birth mothers are clearly different and would not apply.

Birth mothers who wish to return to work have a clear timescale on which to operate. In contrast, the timescale for adoption can be very uncertain. Sometimes the child is placed with adoptive parents at very short notice. In many cases, the employee would not be able to give the necessary advance notification. The unpredictability of adoption leave would create significant problems for employers and statutory regulation would clearly be an unacceptable burden on them.

I hope that I have said enough to convince the noble Earl to withdraw his amendment.

Baroness Seear

We are meeting with resistance the whole time on this Bill and I really do think that this resistance is absurd. The Minister said that 76 per cent. of employers are already making this provision. If that is so, it cannot be an intolerable burden or they would not be doing it.

Does not the Minister think that in the strains and stresses of having a new baby in the house (I speak at second-hand in these matters) it would be a tremendous help if the husband could be at home also? We no longer have aunts, grandmothers and other relations around, all lending a hand. One does not need much imagination to realise that, if the husband can be there to help, far from increasing the burdens on business it would speed up the woman's recovery, and—I was going to say ease the stress on the father, but I am not so sure about that on second thoughts. Surely this is a matter that can be reconsidered. It has been stressed again and again by the European Community, and the Government's obstinacy over this matter is extremely difficult to understand.

Lord Henderson of Brompton

Before the noble Earl replies, will the Minister say something about the noble Earl's assertion that a similar provision applies already in the United States? I wonder whether it applies by statute there. If it does, why is it inappropriate for it to apply by statute in this country? I did not follow the Minister's argument as to why it was inappropriate for it to be a statutory provision. The most substantial point the noble Earl made related to the changes taking place in civilised countries as a result of equal opportunities and the employment of women. That implies that there should be a sharing of the responsibility of looking after very young children. Therefore civilised countries should make the kind of provision that the noble Earl proposes.

I was pleased to hear the Minister tell us that many companies make such provision, but for some reason he said that it should be left to companies to make it of their own accord and that it should not be a statutory obligation. That means that better off families in higher paid employment—in other words, middle class families—will benefit from the provision when they are already prepared to provide for the welfare of the child. Those people at the bottom of the heap who are poor or who may be out of work and living on social security benefits will not have that kind of provision and so they will be all the more deprived in comparison with their better off fellow citizens. A strong case can be made out for provision to improve the welfare and care of our young people. The amendment should be considered seriously by the Government. I hope that the Minister will take it away and perhaps reply more positively on Report.

Viscount Ullswater

I tried to give a considered and careful reply to all the points raised. I said that the provision relating to adoption would introduce complexity into legislation, and that it was an area into which we should not stray. On paternity leave, I have to remind the Committee that the EC pregnant workers directive makes no provision in relation to paternity leave. It gives rights to birth mothers only. There has been no movement on a draft directive on parental leave since 1986, when the European Commission shelved the current directive.

I tried to indicate that a number of firms—I quoted the figure of 76 per cent.—are making the provision available to men. I believe that that is the right way to go and I do not believe that it is right to impose this by law on others.

10.45 p.m.

Earl Russell

The Minister is an optimist. He said that he hoped to convince me. It was not an extremely successful attempt. The Minister pointed out also that there is no provision for paternity leave in the EC directive but the Minister might, with profit, look again at the draft 1983 EC directive which made provision for this type of paternity leave. It is a breath of fresh air to read that directive after the reply that we have just had. The Minister may consider whether the fact that the EC has not recently tried to implement this provision is simply because it knows that it will encounter a veto from this country.

The Minister said—and I found this very curious—that this is not a matter appropriate for legislation. The Minister has already admitted that maternity leave is a matter appropriate for legislation and he has, by implication, admitted that that arises from a need to care for the child as well as the physical circumstances of giving birth. Therefore, I simply do not see why paternity leave is not appropriate for legislation unless it is on the very outdated assumption that the care of young children is something of which only women are capable. As a man, I take exception to any such view. That is a very curious argument indeed.

The Minister also argued against imposing things by law. I tried to argue in my original speech that this is a matter which should be left to freedom of choice in that different families will wish to evolve different patterns. However, there is nothing in the amendment which would compel any new father to take paternity leave. If he does not want to do it, that is entirely up to him. The purpose of the amendment is to facilitate the course of action for those who wish to do so. I cannot see that that is imposing anything by law on prospective fathers.

I agree with the Minister about the importance of the mother's career and making it easier for her to return to work. But I agree also with everything that my noble friend Lady Seear said about the relevance of having a father at home capable of running about and helping generally, particularly if the mother has had a difficult birth and is for a while somewhat exhausted, as happens from time to time.

The Minister's arguments are already outdated and in five years' time they will look extremely outdated. I also am an optimist. I hope, in the end, to convert the Minister. However, I do not believe that I shall do that this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Baroness Turner of Camden moved Amendment No. 151 After Clause 22, insert the following new clause:

("Computation of period of employment for purpose of maternity rights

. In Schedule 13 to the 1978 Act, the following words shall be added at the end of paragraph 3— save for the purpose of section 39(1) (b) where any week in which the employee is employed for eight hours or more shall count in computing a period of employment." ").

The noble Baroness said: This clause is similar to the one which follows it and both are concerned with the same point. The intention is to give part-time workers who work eight hours or more per week the same rights when it comes to computing the period which counts towards entitlement to maternity leave as full-time workers.

The present clause which we seek to amend in Schedule 13 of the 1978 Act reads: Any week in which the employee is employed for sixteen hours or more shall count in computing a period of employment". Our Amendment No. 151 adds: save for the purpose of section 39(1) (b) where any week in which the employee is employed for eight hours or more shall count in computing a period of employment". It seems fair to look at extending the rights to people who work eight hours or more and not limiting the provision in the way that we do currently. I remind the Committee that some time ago the European Communities Select Committee of this Chamber reported on the EC directive relative to part-time and temporary employment. At that time that committee dealing with the EC directive, which was based on the assumption that part-time employment was for eight hours a week and more, recommended that there should be pro rata benefits for employees in that category.

As the Committee will be aware, a large number of women find it difficult to work full-time. A large number of them find it difficult even to work 16 hours. Quite a substantial proportion of the workforce—about 88 per cent.—working between eight hours and 16 hours a week are women. It seems fair to say that when it comes to computing entitlement to maternity rights, they should have their employment taken into consideration if it has amounted to eight hours or more a week. I beg to move.

Baroness Seear

I wish briefly to support this amendment which, as the noble Baroness has said, is very much in line with the subsequent amendment which I shall not move as its substance is being discussed now. Part-time work has in the past been regarded as very subordinate to full-time work. However, we must face the fact that in future part-time work will form an important element of working life in this country. The rights of part-time workers and the opportunities for them should be reinforced and safeguarded. That is the intention of the EC directive. I know the Government have resisted that directive, but this is at least one way in which we can start to emphasise that part-time workers are just as entitled, on a pro rata basis, to the benefits which are available for full-time workers. The sooner we get that principle accepted—this is a good way of starting—the better.

Viscount Ullswater

In speaking to Amendment No. 151, I shall speak also to Amendments Nos. 152 and 194. Both noble Baronesses have done their best to persuade me to accept that these additional burdens should be imposed on employers. I am afraid I cannot do so.

Turning first to the amendments dealing with maternity, I have to say that 40 weeks is a very considerable period of time. It may well not he particularly easy for employers to keep a job open for such a length of time when their employee stops work to have a baby. It is, to repeat a well-worn phrase, a burden on business.

That is why we think it right to reduce the burden by applying the right, not to all employees, but to those who have established a substantial period of service with their employer. Two years' service is the period which was laid down by the Opposition's predecessors in 1975 for employees who work for as little as perhaps two days a week. Those same predecessors believed that women who worked less than two days a week should acquire this very significant right only after a period of five years' service with their employer. This Government agree with that.

It would not be justifiable, in our view, to ask employers to keep open a job for 40 weeks where the job consists of working for fewer than two days a week and the employee has not been in that employment for a very considerable length of time. It would be a very real deterrent from offering such jobs at all, or in particular offering them to women of childbearing age, and would therefore be counterproductive in effect.

I know there are strong feelings in the Chamber about the rights of part-time workers. I would like to emphasise that the Government are fully aware and appreciative of the valuable role played by flexible employment practices, and in particular by part-time working, in the British economy. The UK has a greater proportion of women working part-time than any other member state except the Netherlands, and this reflects the fact that our policies are designed to encourage, not deter, people from offering or accepting this flexible kind of work. We do not want to see job opportunities diminish for those who wish only to work a relatively few hours each week. However, this would be the likely effect of the amendment before us.

Amendment No. 194, which seeks to extend the whole range of employment protection rights to those who work only eight hours a week, would be even less acceptable. The Committee must not be misled into thinking that part-time employees have no employment protection rights. The vast majority of employees—91 per cent.—either already qualify for protection from unfair dismissal and other employment protection rights or will do so after two years' service. That includes those working as little as two days a week.

Moreover, many employment protection rights apply universally, without any period of qualifying service. I am sure that I do not need to remind the Committee that anyone dismissed because of their sex or race or for reasons connected with their trade union membership, for example, has immediate access to an industrial tribunal. Furthermore, we are adding to those immediate access categories in the Bill, in relation to pregnancy and health and safety functions, for which there will also be no qualifying period.

The Government have, in addition, tabled an important amendment, which we shall be discussing later this evening, to protect all employees, regardless of their length of service or hours of work, from being dismissed simply because they are reasonably exercising statutory employment rights. Another important government amendment will remove the qualifying period from the entitlement to an itemised pay statement for most employees working eight to 16 hours a week. Those are important protections with which we can all agree.

However, to go further is unjustifiable; it would inhibit job opportunities and damage the labour market. The line must be drawn, and we believe that the Labour Government of 1975 drew it in the right place. I hope that I can persuade the noble Baroness to withdraw the amendment.

Baroness Seear

This is not my amendment, but I want to make two points.

I find extraordinary, the noble Viscount's argument that the Government are offering a big deal to part-time workers when they say that they are to be protected if they exercise their statutory rights. It is extraordinary that they should give people statutory rights and then graciously say that they protect them if they use them. That is a strange argument.

The other point that I should like to raise with the noble Viscount, which is one that I have wanted to raise for quite a long time in this connection, is to ask whether it has ever occurred to him that from the employer's point of view it may be much easier to take someone on for a 40-week period than to find someone for just a very few weeks? If I was looking for a part-time job I would not be very interested in one which was guaranteed to last only for 11 weeks, or whatever the period will be, until the woman returns. If there is a period of nearly a year it is very much more of a job and it is very much more attractive to someone considering taking it. I have always thought that our period of maternity leave was about the worst from the point of view of employers: it is too long to manage without somebody but too short to make satisfactory alternative arrangements.

Lord Henderson of Brompton

I should like to add my support to the amendments. It is most important that the legislature should give a signal to women—as this amendment would—about the importance which the Government attach to part-time work. The amendment would do that.

I cannot understand the relevance of the two amendments which the noble Viscount is to move later, and for which we are extremely grateful. They both show that the Government have been in a listening mode, because they were suggested in Committee in another place and are now being implemented in this House. One hopes that that listening mode will be revived in this Chamber, particularly on this issue. I ask the noble Viscount to consider the matter, take it back and be a little more forthcoming at Report stage.

Viscount Ullswater

I have been asked to respond. In my remarks I sought to indicate how the Government are considering the welfare of part-time workers. However, I believe that the amendment goes too far.

The noble Baroness suggested that 40 weeks is the right period. She did not say that the woman who was absent on maternity leave could exercise her right to return at any time. We are not dealing merely with a fixed 40-week period. We may be dealing with two people working at the same job, and that is a cost to the employer.

Baroness Turner of Camden

I do not accept the arguments advanced this evening by the Minister. He referred to the fact that way back in 1975 the then Labour Government took a certain position. We have moved on quite a bit since 1975. I do not care which government were in power then: it is a long time ago. There have been EC directives and a great many advances on the equality front since then. The rights of part-time workers were part of an EC directive which was considered, as I said earlier, by your Lordships' Select Committee in December 1990. We looked at the situation in some depth then. We dealt with a number of the arguments then advanced by the Minister. They are rather similar to the ones that we have heard today.

However, we then stated: Extending these benefits, as of right, to larger numbers of part-time workers will benefit many employees who are not at present given sufficient recognition for their work. In the United Kingdom, existing employment protection legislation fails to ensure the rights of large numbers of part-time employees, many of whom are women working in jobs with low status and low pay. The draft Directives are a step in the right direction towards creating equal opportunities for women". We were told the same story about the cost involved. However, we said: The Committee recognises that some increase in cost could be involved. We remain unconvinced of the accuracy of some of the estimates supplied by both the Government and by companies". I do not accept what we have heard today. It is true that the UK has a greater proportion of part-time workers than in many EC countries. But I do not believe that that is because we offer such marvellous protection to part-time workers. I am quite certain that one of the reasons is that child care is not readily available for poorer people in this country. Therefore many women go back to work because they have to, they need the money, and working eight hours is about the maximum they can undertake and look after their child at the same time.

I do not find what has been said today acceptable. I do not press the amendment. However, I do not feel inclined to let the matter go. We may come back again on the issue of part-time workers at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 152 not moved.]

Schedule 2 agreed to.

Clause 23 [Dismissal rights]:

11 p.m.

Viscount Ullswater moved Amendment No. 152A: Page 43, line 35, after ("dismissal") insert (",where").

The noble Viscount said: In moving the amendment, I speak also to Amendment No. 152B.

These are minor technical amendments which make no substantive changes to the clauses. They simply make clear that "where" refers to both subparagraphs of Section 60(d). I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 152B: Page 43, line 36, leave out ("where,").

On Question, amendment agreed to.

Earl Russell moved Amendment No. 153: Page 44, line 16, at end insert ("; and on a complaint of unfair dismissal on the grounds of pregnancy or childbirth, it shall be for the employer to show that the dismissal did not occur because of pregnancy.").

The noble Earl said: The purpose of the amendment is to put the burden of proof on the employer where the question arises whether the dismissal may be due to pregnancy. It is a matter that already applies to those with above two years' service. The purpose of the amendment would be to extend that protection to those with less than two years' service.

The Minister will almost undoubtedly reply that it is already against the law to dismiss people because of pregnancy. We recognise that. We do not argue that the Government seek to say anything else. We argue that there are considerable difficulties in enforcing that right. Employers very consistently conceal dismissals which are probably because of pregnancy under the guise of something else. It is the problem of enforcement to which we wish the Minister to address his mind.

A great many employers have an unreasonable objection to pregnancy. So much so that one sometimes wonders how they got here! Let us consider some of the cases. We have one report by a citizens advice bureau in Manchester. A woman had to go to hospital with a threatened miscarriage. As soon as she rang her employer to notify him of that, she was told that her work and her attitude had deteriorated. One's attitude might well deteriorate for a day or two in that situation. She was dismissed.

Another case was of someone who was off sick for three days and was then dismissed because of sickness. In cases like that, the employer is not under any obligation, with someone who has served less than two years, to demonstrate that the dismissal was not because of pregnancy.

Another case was reported by the citizens advice bureaux in its report: Not in Labour. A woman informed her employer that she was pregnant and was instantly dismissed because he said that employing her was against his religion. I do not know what religion that was, and I assure the Committee that it did not happen at Waco in Texas; it happened in Cardiff. Another case was of someone who was dismissed as soon as she told her employer she was pregnant on the ground that she suffered from body odour.

One begins to wonder, with some of these dismissals, whether they are simply an unreasonable reaction to the pregnancy. 'We have here, as we had in at least one other amendment tonight, a right which has been conferred by Parliament. We have a number of people who are in effect in contempt of Parliament in that they are trying to prevent people from exercising that right. So we are trying to tighten up the Bill to have a right which is already there made effective, because a right which is not capable of being made effective is one which we might as well not have at all.

The Minister may again make the point about the burden on business. It is something which needs to be thought about, but I wonder what the Minister would say to this formulation: employing people is a burden on business, but it is one that business is normally better with than without. If businesses employ people, some of those people are normally likely to be women. Some therefore are likely to go through the conditions which are normally individual to women. If they cannot remain in regular employment in these situations, then the firm will not be able to employ the best people for the job. That, I think, is not in the interests of business; it is not in the interests of the country; nor should I have thought that it was the wish of the Government. I beg to move.

Lord McCarthy

As the noble Earl said, this is just about the time of night when the Government shift from saying that one should impose things upon trade unions to saying that one should not impose things upon employers. Therefore, we must expect that that may well be what they will say in relation to the amendment, especially since, of course, the issue—but not this amendment—was put before the House in another place in Committee. Indeed, something very like the amendment which was put in Committee in another place is the next amendment, Amendment No. 154. I wish to support Amendment No. 153 because it is a different formulation of essentially the same thing and therefore I shall not move Amendment No. 154.

As I see this amendment, it is basically an attempt to strengthen the presumption in favour of pregnancy as a reason for dismissal. They are trying to shift the onus of proof—that is one way of putting it. We are trying to strengthen the presumption towards the notion that if someone is dismissed when pregnant, the chances are that that is why she is dismissed. In any case, it is for the employer to demonstrate that that presumption is wrong and that the employee was dismissed for some other reason.

As the noble Earl said, there is a great deal of evidence of which I am sure the Government have been aware, from the EOC, the TUC, the Fawcett Society from all kinds of voluntary organisations, the CABs and so on, that the present criterion is not strong enough to fulfil the wishes in the EC directives and to fulfil in a sense the intentions of the present legislation.

The position is seen by those who are most involved as being markedly different, as the noble Earl said, whether one is inside or outside the two-year rule; whether one is going on inadmissible reasons outside the two-year rule as the Bill will now allow one to do on grounds of pregnancy, or whether one is in the position, as was the case before the Bill for people with a two-year continuity qualification, of having other reasons that they could bring in as to whether or not they were fairly or unfairly dismissed.

The situation appears to be that outside the two-year rule restricted to the inadmissible reason, if the employer can show that it was not pregnancy which motivated the dismissal but was any other reason that he wishes to adduce, there is no practical way in which the appellant or the tribunal can investigate the plausibility of that reason. Once the employer can show, on the balance of probability, that the reason was not pregnancy, but was something else—and any reason, even the most frivolous, can be given—the tribunal and the appellant do not have the same ability to go forward as has the woman, if we are not bounded by the two-year rule, and start to argue as to what the alternative reason is. It might, for example, be one of conduct, and whether, given all the circumstances, the conduct of the employee justified dismissal under the provisions of Section 57(3) of the 1978 employment protection Act. That cannot be done if one simply takes on inadmissible reasons outside the two-year rule.

It could be said that the same kind of criteria apply if one looks at other categories of inadmissible reasons outside the two-year rule. But we argue that there are particular reasons—as touched upon by the noble Earl, Lord Russell —why one would expect an employer to go out of his or her way to avoid having to fall in with the consequences now of accepting a pregnancy in an employment situation.

First, if the employee tells the employer that she is pregnant and wishes to qualify in due course for the rights that she has for leaving and returning to the job, that is a form of advance notice. The employer is given time to manufacture or find other reasons. He is given time to find fault with her work or with attendance. He is given time, should he so wish, to manufacture a situation in which he can sustain a position in which the dismissal is not on grounds of pregnancy. Other forms of dismissal are not quite like that.

Secondly, as I have said, the effect on the employer—especially on the small employer—of accepting pregnancy is significant. We know that the Government would not have accepted the provisions in the Bill had they not been forced to do so by the European Commission. They have some grounds to say that it is a serious discomfort and disadvantage for the small employer to accept what is now there in terms of the rights of the worker who is pregnant. Therefore there is every incentive to find some other reason.

For all those different reasons, we say that pregnancy in that sense is especially difficult to prove and especially difficult to avoid, and that therefore we need a very strong burden of proof, and something other than we now have in the legislation. I support the amendment.

Baroness Gardner of Parkes

It is very important that the burden of proof should be fulfilled in this way. It is extremely difficult for a woman to prove that that is the reason why she has been dismissed. Again and again, the sense of strong prejudice comes through in cases before a tribunal.

At the moment, people who come into the category of under two years' service bring the case as one of sexual discrimination. The Bill changes that. There is progress when a case can be brought on the ground of pregnancy. Yet there is a big difference if the applicant does not have to prove the case and the case has to be proved against the applicant - and pregnancy is a special case. That is something the Government should consider.

Viscount Ullswater

I cannot accept that an employer should be deemed guilty until proven innocent. It is always the case that industrial tribunal applicants must show that they have a complaint which the tribunal has jurisdiction to hear.

Individuals who have two years' service fall under the generalised protection against unfair dismissal. In such a case, any dismissal is potentially unfair and the individual does not have to show any particular reason. However, they do have to show that they have been dismissed (and have not, for example, simply resigned) before they can establish their case.

But the Government do not believe that all employees, regardless of their length of service, should have such general protection. The two-year qualifying period is necessary to ensure that the legislation does not create too heavy a burden on employers and make them reluctant to recruit. However, the Government recognise that there should be specific protection in certain kinds of case—such as the pregnancy and maternity dismissals covered in Clause 23—even where individuals do not have two years' employment. It is quite right that those seeking to rely on this special protection should show that their complaint falls within its scope. The same is true for those complaining of dismissal on grounds of trade union membership, for example, or sex discrimination. This is in line with the time honoured principles of the burden of proof in UK law.

Perhaps I may make two points. If a pregnant woman believes that she has been dismissed in breach of her rights under this clause, she can put the facts before the tribunal. In order for the tribunal to examine her case the burden of proof simply means that she must point to evidence of some kind which links her dismissal to the fact of her pregnancy. As I am sure my noble friend Lady Garner of Parkes will know, tribunals have experience in industrial relations and are well suited to judging these matters. Obviously each case must depend on its facts, but if, for example, an employer dismisses a woman the day after she has told him she is pregnant, a tribunal might well judge that sufficient to raise a case to answer.

Secondly, it is well established practice that except in a really hopeless case tribunals will hear evidence from both sides before deciding. They do normally want to hear the employer's explanation. After that it boils down to what the tribunal believes happened.

None of that detracts from the point that in a case where there is absolutely no evidence that an employer has acted wrongly it is contrary to principle that he should have to prove his innocence.

In the light of that explanation, I hope that the noble Earl will feel able to withdraw his amendment.

Baroness Gardner of Parkes

Perhaps I may first come back on one point. It is the procedure that is affected by this measure. It makes a big difference who presents his case first. It is much better if the employer has to present his grounds for dismissal. It is not necessary for anyone to find him guilty. I can think of only one case during all the time that I have been involved in these matters in which only one side was heard Both sides are always heard and it makes a significant difference which side presents its case first to the tribunal.

Earl Russell

The noble Viscount has done a little too much with his argument. He was very concerned at the idea that this amendment involved having people thought guilty until proved innocent. But why then have the Government themselves already accepted precisely the requirement about the burden of proof for which we ask in respect of people with more than two years' service? Is that not condemning the law that the Government have already put on the statute book? Perhaps that is a little unwise of him.

There is a case for the law to be left as it is for people with more than two years' service. Equally, there is a case for it to apply to people with less than two years' service. The Minister defended the two-year distinction. I do not know whether he is aware of how many cases are brought for dismissal in the 23rd month, and very often in the last week of the 23rd month. They are concentrated together with a frequency which it is statistically improbable would be coincidental. That means that those who do not have this protection are in an extremely vulnerable position. I appreciate that employers have interests to consider, of which I hope I am aware. But, as Burke put it, "Whatever now is established, once was innovation". Anybody who has served two years, once had not. If one cannot get through those first two years, one can never be in a position of enjoying stable employment rights. In a world where there is a great deal of turnover in the labour force, that can be rather difficult.

The noble Viscount may not be distressed if it has the effect of driving down wages. But that also would be unwise of him. We are all considerably concerned at the moment about the public sector borrowing requirement. If it drives down wages, it also drives down taxes and is depriving the Government of money.

The noble Viscount made one point which was worthwhile regarding the need to prove dismissal before one can benefit from the proposal. The amendment makes no attempt to make the law apply to those who have simply chosen to give up their jobs. But if one wants to benefit from any law giving protection against dismissal, simply to file one's case it is necessary to prove dismissal in order to come within the terms of the amendment. Though the point was fair, therefore, the anxiety in relation to the amendment was needless.

I do not think that I will advance matters by taking the issue any further tonight. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 154 and 155 not moved.]

Lord McCarthy, moved Amendment No. 156: Page 45, line 2, at end insert: (" () In section 74 of that Act (calculation of compensatory award) after subsection (7) there shall be inserted— (8) Where the tribunal finds that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason, the compensatory award may include compensation for injury to feelings whether or not the complainant has suffered loss in consequence of the dismissal. (9) For the purposes of subsection (8) "inadmissible" in relation to a reason means it is one of those specified in section 60(a) to (e)." ").

The noble Lord said: The object of Amendment No. 156 is to provide a new basis for compensation in "inadmissible reason" cases; that is to say, pregnancy, sex discrimination and trade union membership and non-membership. It is not a total innovation because it is already the case with race discrimination. The structure in assessing the compensation award in those cases is that, first, there is a special criteria of readily quantifiable losses and so forth; secondly, there is another general criteria which includes intangible losses, including future losses and injury to feelings.

We are suggesting that that structure should be applied in some way to other instances of "inadmissible reason" cases that are covered by the amendment. We are not suggesting that the award, whatever it might be, should go over the maximum; that is, that there should be an extra award. We are merely saying that there should be another basis for making calculations for compensation. If the determination on the existing basis of calculation leaves some sum over the present maximum, as it almost certainly will, then it is possible for the tribunals to ask whether it is reasonable to suppose that there is some other basis for calculating compensation in terms of injury to feelings.

In many ways it is analogous to race discrimination cases. It can easily be imagined, and one may think frequently occurs, that somebody may be dismissed and go to a tribunal. They may win the case and the tribunal may try to determine what the size of compensation should be. In terms of the readily quantifiable loss there may be almost no loss at all. The individual concerned may have moved to another job immediately afterwards, perhaps to an even better job. In terms of actual financial drain on their resources there is little to account and the compensation may amount to only a few hundred pounds. Nevertheless, it could have been a very traumatic experience. It might have taken a great deal of argument, conciliation and waiting for a tribunal. At the tribunal the individual might feel that all kinds of lies had been told about his or her work, conduct and so on, or that he or she had had to withstand threats, victimisation, indignity and stresses—presumably, the kinds of stress that the Government accept in the area of race.

What we are saying is that there is an analogy here and it should be reasonable to allow the tribunal to take it into account in respect of an admissible reason of a non-racial kind. We are not saying that it will result in a great amount of money or that necessarily in all cases the tribunal will say there is any money at all. It is merely a heading under which it should be allowed to consider what it wants to do. I beg to move.

Viscount Ullswater

The purpose of the compensatory award is to provide employees who have been unfairly dismissed with a just and equitable recompense for actual losses suffered as a result of the dismissal. Such losses would normally include loss of salary or benefits. This has been the case since the right not to be unfairly dismissed was first introduced by a Conservative government in 1971. Compensation for injury to feelings has never formed part of this award.

As the noble Lord has said, compensation for injury to feelings may form part of any compensation awarded under the provisions of the Sex Discrimination Act 1975 or the Race Relations Act 1976, whereas it may not in unfair dismissal cases. However, there is no reason in principle why unfair dismissal compensation should be calculated in the same way. There are a number of important differences between the awards under the discrimination legislation and in unfair dismissal cases. The amount of compensation in sex and race discrimination cases is assessed on the basis of general damages that would have been awarded in a county court or a sheriff court in Scotland. In unfair dismissal cases the compensatory award is an amount that the tribunal considers just and equitable in all the circumstances. Successful unfair dismissal applicants, unlike those successful in cases brought under the legislation on race and sex, will normally receive a basic award in addition to a compensatory award.

To include a sum for injury to feelings in the compensatory award cannot be justified. I believe it would simply add to the burdens on employers and thereby harm job prospects. For this concise reason I urge the noble Lord to withdraw his amendment.

Lord McCarthy

We are used to the noble Lord giving us reasons and making distinctions but they do not add up to a case. That is what he is doing now. We are merely saying that there should be a heading under which the tribunal can assess these matters. We say that that makes it square with what is done in race because the two are analogous. It is no good pressing this tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.157 not moved.]

Clause 23, as amended, agreed to.

Clause 24 agreed to.

Schedule 3 agreed to.

Clause 25 [Right to employment particulars]:

[Amendment No.158 not moved.]

Clause 25 agreed to.

11.30 p.m.

Baroness Denton of Wakefield moved Amendment No. 158A: After Clause 25, insert the following new clause:

Entitlement to itemised pay statement

(". After section 146(4) of the 1978 Act (provisions disapplied in relation to employment below minimum number of hours weekly) there shall be inserted— (4A) Subject to subsection (4B), subsection (4) shall have effect as respects section 8 subject to the following modifications, namely—

  1. (a) the substitution of a reference to eight hours weekly for the reference to sixteen hours weekly, and
  2. (b) the omission of the words " Subject to subsection (5), (6) and (7)".
(4B) Subsection (4A) shall not apply in relation to employment if, at the relevant date, the number of employees employed by the employer, added to the number employed by any associated employer, is less than twenty. (4C) For the purposes of subsection (4B) "relevant date" means the date on which any payment of wages or salary is made to an employee in respect of which he would, apart from subsection (4B), have the right to an itemised pay statement." ").

The noble Baroness said: Amendments Nos. 163 and 193 have been grouped with this amendment. It gives me great pleasure to bring forward this new clause which I am sure Members on both sides of the Committee will welcome. The clause brings the right to an itemised pay statement to most employees who work eight or more hours a week, regardless of their length of service.

I think Members of the Committee will agree with me that most employees who work eight or more hours a week should have the right to know how their pay is made up. Providing them with itemised pay statements would, in addition, greatly simplify the process of resolving disputes over pay or deductions, thereby saving industrial tribunals time and money through fewer and more straightforward Wages Act complaints.

Employees should also be able to see that their employer is making the correct deductions in respect of national insurance and tax. Without written proof of what their pay and deductions should be some employees may have no other means of knowing whether deductions have been made correctly —or indeed at all. It can also be hard for the employee in such situations to prove that he or she was not party to any fraud. Itemised pay statements would also help part-time employees on low incomes to provide proof of their earnings required in order to claim means-tested benefits: this can be difficult for those who are paid on an informal basis without written records. The Child Support Agency will, of course, require more people to provide proof of their earnings.

Employees working at least eight but fewer than 16 hours a week must at present have five years' continuous service with the same employer before they qualify for the right to an itemised pay statement. Changes proposed elsewhere in the Bill, however, entitle them to a written statement of terms and conditions without the necessity of first completing five years' service. This new clause would more closely align the two entitlements, thereby simplifying the legislation for employers.

Since this proposal was first raised in another place, a number of interested organisations have been consulted. Their response was overwhelmingly positive, and it appears that a considerable proportion of employers provide itemised pay statements for this group of employees already. Indeed, a number provide them for all employees, regardless of their hours of work.

All employers are already required to keep records of their employees' pay and the deductions made for tax purposes, and to provide itemised pay statements for all employees working more than 16 hours a week. In many cases employers already have computerised pay systems (or contract their pay arrangements out to computer bureaux) and as a result already provide a full itemised pay statement, even for staff working fewer than eight hours a week. Even for businesses using manual pay systems, the costs of providing itemised pay statements for staff working eight to 16 hours weekly would, in most cases, not be excessive and in many cases could probably be contained within existing administrative overheads. Booklets of proforma statements which can be simply filled in by hand are readily available.

I do not anticipate, therefore, that the cost of introducing itemised pay statements for this group of employees would be particularly significant. However, we are very conscious of the need to minimise legislative burdens on business, and we appreciate that the cost of complying with this requirement could be proportionately greater for small employers. This was confirmed by a number of the employers' organisations consulted, and in the interests of avoiding the imposition of unreasonable burdens on business which might inhibit job creation, we have decided that firms with fewer than 20 employees will be exempted from the new requirement. The proposed new clause will automatically entitle most employees working between eight and 16 hours a week, who previously have had to complete five years' continuous service in order to qualify, to an itemised pay statement. That is an important advance. There is, however, a balance to be struck between giving employees additional rights and placing extra burdens on employers. To extend the right to an itemised pay statement to those working fewer than eight hours a week would fail to strike that balance. Before I move Amendment No. 158A, Members of the Committee may wish to speak to Amendments Nos. 163 and 193.

Lord Henderson of Brompton

Perhaps I may express my gratitude to the Government for this clause. I have already done so but I would like to do so again in the hope that they will be in the same listening mode in future as 'they have been in the past. This is a case where the Government listened to the argument, considered it, and implemented the amendment which I believe originated from the citizens advice bureaux. Here we have it in very good form and it is very welcome. I am most grateful to the noble Baroness for bringing this clause forward.

Baroness Gardner of Parkes

It is good that an itemised pay slip is being suggested. People still have great difficulty in getting them. There does not seem to be any real sanction against the person who has not provided one. When cases come before the tribunal one spends a great deal of time working out what should have been on the itemised pay statement. As I say, there is no sanction against the employer who fails to provide it.

Lord McCarthy

There is an amendment in the Marshalled List which should deal with that. I do not like to be the one who complains. It is undoubtedly an advance that the Government have introduced this clause. I believe that I am right in saying that the citizens advice bureaux did not want to see: (4B) Subsection (4A) shall not apply in relation to employment if, at the relevant date, the number of employees employed by the employer, added to the number employed by any associated employer, is less than twenty". This is our old friend the small employer. The Government have never been able to show why, if one has a small labour force, it costs more to notify people than if one has a large labour force. What it costs depends on how many people there are in the labour force. It cannot be any more expensive for a small firm with 15 people to inform them per person of an entitlement to an itemised pay statement than for the Ford Motor Company to do so. It is all a question of how many people are employed.

If the Government want to investigate this matter and they want to carry out surveys, they will find out as they did before as regards unfair dismissal, that the overwhelming majority of employers surveyed do riot know what is being talked about. When they are asked whether they believe that it is a disincentive to have to do those things, they believe that they are talking about VAT. They never say that things like itemised pay or written reasons for dismissal have anything whatever to do with the number of people they employ. It has nothing whatever to do with job generation. Very good though this provision is and great the advance, I would like to hear rather better arguments as to why we should accept "(4B) Subsection (4A)".

Earl Russell

I too would like to welcome this amendment very warmly. The noble Baroness may possibly be familiar with the phrase "A Dutch account". It is the kind of bill which says "For services rendered £5,000" without explaining what those services were. I am glad that we are now getting British and not Dutch pay statements. It is also worth pointing out that this amendment will make it much easier for the Government to collect national insurance. In dealing with the PSBR, maximising the yield of revenues to which the Government are already entitled is quite important.

I also have some regrets that the clause does not include people working less than eight hours a week. I am aware of the argument of the burden on business. If the noble Lord, Lord Mottistone, puts that argument to me I will listen to him.

Lord Blease

This is another item which comes under Clause 46 as regards Northern Ireland. Consultations have taken place with the trade unions and with the Equal Opportunities Commission in Northern Ireland. This item is ready to be submitted to the Government along these lines: they welcome the proposal to extend the right to receive an itemised pay statement to those working between eight and 16 hours a week. It is considered that the proposed amendment does not go far enough. They believe that the exclusion of those working fewer than eight hours per week, the vast majority of whom are females, does not accord with earlier decisions of the European Court of Justice relating to the rights of part-time workers and that it may, therefore, amount to unlawful indirect sex discrimination. The commission believes that the right to an itemised pay statement should be extended to all employees regardless of the number of hours worked.

That may seem a little ridiculous, but we have evidence that home helps (who perform an excellent service) who are organised by local authorities and others fall into such groups and work fewer than eight hours. For many reasons, they should have some record of the payments that are made to them. Part-time office cleaners who work under contract to agencies have been found to be similarly engaged for three mornings one week and three the next for something like two hours per morning. There is similar evidence too relating to clerical workers. These workers are predominantly female. Therefore, although it would be churlish to say other than that providing an itemised pay statement for those who work for more than eight hours is to be welcomed, that still leaves a fair number of people who should come within the ambit of provisions requiring them to receive an itemised pay statement.

Lord Wedderburn of Charlton

I support what has been said by my noble friend Lord McCarthy and the noble Earl, Lord Russell. I support the notion that there is no reason to have a cut-off point of eight hours. I should, however, like to address the matter of the second cut-off point of 20 employees. It is not a bad principle that if a good move is being made—and I share the view of those who think that providing an itemised pay statement is very important to many employees, so this is an excellent amendment—that good move should not have an arbitrary cut-off point.

With great respect to the noble Baroness, the cut-off point is not as easy as simply saying, "Fewer than 20 employees in a firm", as I think that she put it. If we take the case of three associated companies and three associated employers (defined by reference to associated companies—that is, one in control of another or under common control), and if those three companies have 19 employees at the date when a particular worker comes to his "relevant date" for the payment of wages, as defined in paragraph (4c), he then has no right to the statement. But if a worker is taken on by one of the three companies the next day (perhaps by a subsidiary or something far removed from the parent company), and worker No. 2 reaches his "relevant date" on that day, it appears that he is entitled to a statement. If the Government wish to have an exception for associated companies with fewer than 20 employees, surely they can find a way of making it less arbitrary than that. I hesitated before saying that because the Government's approach to these matters is such that if one raises a point such as that, they usually come back with something more draconian rather than something more liberal.

Surely, however, it is ridiculous that two workers in the same position in a common group—it may be more than three employers; it may be many—are in such different positions with regard to this very important piece of information. I ask the Government to think again before Report. If they will not give way on the point about 20 employees, they should at least find a more sensible way of implementing the provision.

Lord Wise

I endorse the remarks of the noble Lords, Lord Wedderburn and Lord McCarthy. I cannot understand why it is much more costly to provide an itemised pay statement for a smaller number of workers—even if there is only one employee—than for over 20. Nevertheless, I welcome the Government's amendment. I am sure that it is a step in the right direction.

11.45 p.m.

Baroness Denton of Wakefield

I welcome the general support offered to the amendment for which I thank the Committee. I understand some of the fears that have been raised, and I shall try to answer them. Perhaps I may first answer my noble friend Lady Gardner of Parkes. The tribunals can award the amount of the deductions which should have been notified on the itemised pay statement for up to 13 weeks, if the employer fails to provide one. I hope that that gives my noble friend some comfort.

The question of why small firms should be exempted has been asked. The noble Lord, Lord McCarthy, said that he could see little difference in the cost of providing itemised pay slips for someone with fewer than 20 employees and large firms. Within small firms every person has a workload. A tightrope has to be walked between excessive burdens and needs. We believe that small firms should be exempted from the requirement on the ground that the cost of implementing it would affect them disproportionately. Of course many small firms already provide itemised pay statements, and that is something that we encourage. However, it would not be appropriate to impose such costs on small firms which may well have difficulties with the administration necessary to provide itemised pay statements to people who work just a few hours a week. That would include many newsagents and small shops employing part-time staff to help out on Saturdays—for example, delivering newspapers—but who work more than eight hours a week. If some small employers see advantages in providing itemised pay statements to those of their employees who work between eight and 16 hours a week, I am delighted. They are of course free to provide such statements, but we do not wish to impose the burden upon them.

Women form a high proportion of the groups of workers about whom we are talking. I am worried that if the difficulties of employment—it is not just costs—were to increase or to become considerable, then their job prospects could well decline. So, as I say, we believe that it would he unreasonable and inappropriate to require employers to provide itemised pay statements to all staff working fewer than eight hours a week. After all, that is the equivalent of a day. It could be a disincentive to take on employees to work such hours. It would mean that itemised pay statements would have to be provided to groups of employees. It would be absurd to include employees such as newspaper boys or baby sitters.

However, and I hope that this will be of some comfort to the noble Lord, Lord Blease, where an itemised pay statement would be useful to someone working fewer than eight hours a week, there is nothing to prevent an employer agreeing voluntarily to provide one. The fact that under the proposed new clause employers will soon have to provide such statements for all employees working between eight and 16 hours a week, will, I am sure, lead some to provide them for staff working fewer than eight hours a week. We believe that it would be against the interests of such employees to make it a statutory requirement. I commend the amendment to the Committee.

Lord Blease

Before the Minister sits down, some employees working fewer than eight hours are drawing social security benefits or receiving some form of statutory payment. They require some evidence of the amount of money that they earn over a period. That is why they need a statement.

On Question, amendment agreed to.

Lord Henderson of Brompton had given notice of his intention to move Amendment No. 159: After Clause 25, insert the following new clause:

("Written reasons for dismissal

.Section 53(2) of the Employment Protection (Consolidation) Act 1978 shall be amended to read as follows— (2) An employee shall not be entitled to a written statement under subsection (1) unless on the effective termination he has been or will have been, continuously employed for a period of six months." ").

The noble Lord said: I understand that it is the Committee's wish that we should make progress. To that end, although I regard the amendments as important, I propose not to move Amendments Nos. 159 to 164 tonight, but I reserve the right to raise them on Report.

Amendment No. 159 concerns a separate issue, as does Amendment No. 161. As regards Amendment No. 162, I thank the Government in advance for what we are about to receive in Amendment No. 186A. I know that the amendments also stand in the names of other Members of the Committee; I can speak only for myself but, if it is for the convenience of the Committee, I shall not move Amendments Nos. 159 to 164.

[Amendment No. 159 not moved.]

[Amendment No. 160 had been withdrawn from the Marshalled List.]

[Amendments Nos. 161 to 164 not moved.]

Schedule 4 [Provisions substituted for sections 1 to 6 of 1978 Act]:

Lord Wedderburn of Charlton moved Amendment No. 165: Page 69, line 30, at end insert:

  1. ("(iv) maternity leave and pay,
  2. (v) parental leave and family leave,
  3. (vi) paternity leave,
  4. (vii) childcare provision, and
  5. (viii) equality of opportunity,").

The noble Lord said: This amendment is grouped with a large number of other amendments. I shall deal with them briefly.

This concerns written particulars of the terms and conditions of employment of an employee. There are two issues which really arise. First, does the law demand a sufficient number of items in the terms and conditions to be included? Secondly, is there a way of making those items transparent to employer and employee, perhaps by reference to other documents, without creating an ocean of paper which, one suspects, both management and the labour force would not wish to see?

The amendments suggest items which might be included. I am aware that the EC directive is, as it were, the framework in which we now work, but I apprehend that there is no difficult about any of these items with regard to the directive because it allows any national system to include items which are more beneficial to the worker. The Committee will see, therefore, in Amendment No. 165, to which I am speaking in the absence of my noble friend Lady Lockwood, a number of family rights: maternity leave, parental leave, paternity leave and so on.

Secondly, the main duties and, in Amendment No. 167, a brief description of the work a re added to the possible items in the list. Thirdly, Amendment No. 168 deals with a matter of importance in my view; namely, whether or not there is machinery in a works council or in some other way whereby the employer consults representatives of the employees. I am sure that the Government will not oppose the notion of workers knowing what machinery there is at their workplace for consultation. They are not concerned with negotiation or bargaining.

Lastly, Amendment No. 170 provides that there should be a: reference to any relevant statutory or other provision concerning …discrimination". The word "discrimination" is deliberately used generally; it refers not merely to sexual discrimination but also to discrimination on racial and other grounds. I beg to move.

Baroness Denton of Wakefield

Perhaps I may deal first with Amendment No. 167. This would allow employers to omit the job title from an employee's written statement if, instead, they include a brief description of the work which the employee is employed to do. I must say that the Government find the arguments in favour of this amendment acceptable. It would clearly allow employers a small degree of additional flexibility and would be fully in line with the requirements of the EC Proof of Employment Directive. I am therefore happy to tell the noble Lord, Lord Wedderburn, that I am prepared to accept his amendment as tabled.

I cannot, however, accept any of the other amendments in this group, each of which seeks to make an addition to the list of matters of which an employer is required to give particulars in the written statement. It has never been the intention of the provisions in Sections 1 to 6 of the 1978 Act that the written statement should give details of every single aspect of an employee's terms and conditions—if I heard the noble Lord correctly, he understands that—still less of every other aspect of the employer's policies which may be relevant to the employee. Rather, the intention is that the statement should act as a useful record of the main or most important aspects of an employee's employment.

The Government are, in this Bill, making a number of additions to the list of matters which have to be covered In the statement. These additions are: details relating to the duration of temporary contracts; information on the work location; an indication of any collective agreements which directly affect the employee's terms and conditions; and certain further information for employees who are required to work abroad for a period of more than one month. We regard these as important and justified additions to the statement which is why we supported the relevant provisions of the European Community Proof of Employment Directive which they implement. In addition, we are limiting the extent to which employers are permitted to give employees the required information by way of reference documents. In future, particulars of many matters—including hours, pay, and holiday entitlement—will have to be set out explicitly in the written statement, whereas until now the employer has been able simply to refer the employee to any other document which he or she has reasonable opportunities of reading in the course of his or her employment. This will significantly increase the amount of detailed information which has to be included in the statement.

As always, however, there is a balance to be struck between giving employees extra rights and burdening employers with additional obligations which would or could increase their costs and thereby ultimately damage job opportunities. The Government are satisfied that the Bill provisions strike the correct balance. Any further additions to the list of matters to be covered in the statement would undoubtedly increase the costs to employers of producing the information.

I should also point out that I appreciate that the noble Lord, in moving the other amendments, clearly believes they would be of benefit to employees but they may have quite the opposite effect. I have accepted Amendment No. 167 and I hope that the noble Lord will withdraw the other amendments we have been discussing.

The Deputy Chairman of Committees (Lord Skelmersdale): Before we go any further, perhaps I had better remind the Committee of the rules of order. Amendment No. 165 has been proposed.

Lord McCarthy

I understood though that the noble Lord, Lord Wedderburn, was speaking to Amendments Nos. 166, 167 and 168. Therefore we can discuss those amendments. There seems to be a spontaneous desire on all sides to make progress. I therefore only wish to make one comment to the Minister. Is it not the case that there are three general areas here? Amendment No. 165 is about leave. Let us leave out Amendment No. 166 for a moment. Amendment No. 167 has been accepted. Hurrah! Amendment No. 168 is a little more controversial because it concerns works councils. Would it not be possible for the Government to think again about Amendments Nos. 165 and 166 and go just a little bit further, or perhaps we could come back on Report with a provision under either or both of those headings. In that case could not the noble Baroness be a little more friendly towards us on those two matters, leaving aside Amendment No. 168?

Lord Rochester

I must disagree with the noble Lord, Lord McCarthy, in that I very much hope that we may not just leave aside Amendment No. 168. I am sorry that the noble Baroness, in a commendable endeavour to make progress, was dismissing Amendment No. 168, if I understood the position correctly. There are many organisations where there is no union representation but there is some machinery which enables the employer to consult with employee representatives on matters connected with their employment. I am hopeful that the noble Baroness, on reflection, might agree that in such cases there is in principle just as much need, as in organisations where there are collective agreements with trade unions, for the employees concerned to be informed in writing of the relevant arrangements. If it is good for trade unions it should also be good for other forms of consultative machinery. I hope, therefore, that that thought may not be dismissed altogether.


Baroness Denton of Wakefield

I am sorry if the noble Lord, Lord Rochester, felt that in the effort to make progress I had been rather casual about Amendment No. 168. That was not my intention. There is a tightrope in deciding between what is of benefit and which points should be included in the written statement and which should not. I agree that where employers have policies on some of the matters upon which the amendments touch it is important that the employees should be made aware of them. The difference is that we do not accept that the written statement should be specified in statute as being the obligatory vehicle for achieving that. I can assure the noble Lord that have not ignored the amendment.

Baroness Seear

If one is going to include paragraph (j), which reads: any collective agreements which directly affect .. then the point of the amendment is that, where there is no collective agreement but there is a works council, that should equally be included. If one includes the one, then in our view one should include the other.

Baroness Denton of Wakefield

I am afraid that I must say to the noble Baroness, Lady Seear, that that is a matter of opinion on which we must differ.

Lord Rochester

In that case I hope that the noble Lord, Lord Wedderburn, will reserve the right to return to the matter at Report stage.

Lord Wedderburn of Charlton

I agree with the noble Lord, Lord Rochester, and the noble Baroness, Lady Seear, that it is disappointing, and I feel that we should consider the matter again. However, my usual general disappointment is conditioned by the unprecedented event of the Government accepting an amendment in my name alone. In that respect this is a small gain. Some aspects of the matter should be considered again but, given that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 166 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 167: Page 69, line 33, at end insert ("or a brief description of the work for which the employee is employed,").

On Question, amendment agreed to.

[Amendment No. 168 not moved.]

Lord Henderson of Brompton had given notice of his intention of move Amendment No. 169: Page 70, line 5, at end insert: () information about redundancy selection procedures.").

The noble Lord said: With this amendment I intended only to probe briefly. I hope that the Government will kindly take note of that. If the Minister would write to me between now and Report stage it might save the need for an amendment at that stage.

[Amendment No. 169 not moved.]

[Amendments Nos. 170 and 171 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 172: Page 70, line 24, leave out from ("in") to end of line 25 and insert ("paragraphs (a), (b), (c), (d), (e) and (j) of subsection (3) of section 1, and").

The noble Lord said: I appreciate that we must deal with these matters very speedily, but Amendment No. 172 raises a matter of such importance that I feel that it must be put to the Government for their precise reply. It is of importance to employees and to trade union negotiators, but the people to whom I should have thought it was of most importance are management. Good management wants to see transparency, in the sense in which the EC aims a t transparency and in which our law has aimed at it since 1963, in giving written particulars which are meaningful to the worker.

Transparency and meaningful particulars are not necessarily created by having everything written out on a piece of paper for a particular worker. I am sorry that the amendments of the noble Lord, Lord Mottistone, are not moved because I intended to discuss those amendments and to leave mine. My amendments raise this issue: is the principle of reference, in which our law has been so strong, now to be diluted? If that is so, then an ocean of paper may be the consequence in some workplaces. The principle of reference is not the enemy of transparency so long as the other documents to which reference is made, especially a collective agreement, are up-to-date and accessible at the place of work. To some extent it has been the crucial proviso in our law since 1963, and certainly since 1972 when a Conservative government amended the law.

I was disappointed to hear the noble Baroness suggest in her reply on the last amendments that that principle will now be diluted: that we shall now have more in documents and less in the principle of reference. I underline again that the principle of reference needs a collective agreement or other document accessible to the worker at the place of work, accessible to management, and up-to-date.

We now have that provision in the 1978 Act under Sections 1 to 4 and under Schedule 4. One cart therefore arrange for alterations in the terms of employment to be entered up in the accessible document and for people to know about them at their place of work via their particulars which indicate to which document they should refer.

I should have thought that for management the reference to documents in which changes are entered up was more important than anything else. Does a change in the hours of work have to be given to all 2,000 workers on a piece of paper, or can it be entered up in documents which are near them and available to be read? The directive is rather obscure on the matter. What do the Government believe are the conditions that the directive imposes?

As it stands, the Bill appears to demand a piece of paper to each worker regarding changes of employment terms except for a very small area relating to the terms and conditions. I refer to such items as holidays with pay and length of notice. However, generally the principle of reference appears to be gradually eased out. I am absolutely astonished that management does not put greater pressure upon the Government to consider again the issue of reference. I do not believe that the directive demands that the Government close down the principle of reference to accessible documents to the extent that they have. Perhaps the Government will consider the issue again because they have changed their mind on whole passages of Schedule 4 in another place. There is room for another look. I beg to move.

Baroness Denton of Wakefield

If I heard the noble Lord aright, this is in the nature of a probing amendment to establish the Government's position.

The Government's position is absolutely clear. Employees should in general be entitled to receive explicit individual notification of their main terms and conditions of employment, and of any changes to those terms and conditions. Subject to limited exceptions, it is no longer right, in our view, that employers should be able simply to refer employees to another document, such as a collective agreement which they may never have seen or even have been a party to. The exceptions are those items—pensions, sickness entitlement and certain details of disciplinary and grievance procedures—of which the particulars may often be lengthy or complicated; and also notice entitlement, for which we believe it is right that an employer should be entitled to refer the employee to his or her statutory entitlement, or to any collectively agreed provision where this is more favourable.

Amendments Nos. 172 and 180 would—contrary to the Government's approach—largely preserve the status quo. This would mean that, with four exceptions, the particulars referred to in the new Section 1(3) could still be given by reference and would not have to be included explicitly in an employee's written statement. Three of the exceptions—information about the duration of a temporary contract; information about the work location; and additional details to be given to an employee who is required to work abroad for a period of more than one month—are new items introduced by the Bill and have not hitherto been required to he given to the employee at all.

In short, the noble Lord's amendments would undo many of the improvements in employee's rights which are provided for in this part of the Bill. In addition, they may also place the UK in breach of the EC directive, which itself imposes limitations on the types of documents to which reference may be made in respect of certain particulars.

The noble Lord said that had my noble friend Lord Mottistone's amendments been moved, the issue would have been debated in those areas also. However, I hope that he will feel that it is not necessary to press the amendments.

Lord Wedderburn of Charlton

I hope that Members of the Committee on all Benches will read Hansard carefully tomorrow. First, in answer to the noble Baroness's point at the end that my amendment is outside the directive, Article 5 of the directive allows for a change in statutory provisions or collective agreements which are cited in the documents referred to in Article 3—that is the written particulars—and where appropriate, Article 4 which does not enter the present argument. I cannot see how my modest amendment in respect, at any rate, of the changes which come in the other amendment to which I was speaking—Amendment No. 180—could possibly be outside the directive. No doubt the Government will put some documents in the Library if they have evidence of that view being taken elsewhere.

The main point is that management must now give a piece of paper, with very few exceptions, to every worker every time a turn changes. If there is a workforce of 10,000 with the turn changing once a fortnight—not, I should have thought, an improbable analysis and prediction—there would be 10,000 pieces of paper. Why will the Government not allow reference to something else? The noble Baroness did not speak about something else; she spoke about one thing: the reference to collective agreements. I at least spoke about reference to collective agreements or other documents such as unilateral management documents. This is a very important point. The Government have imposed the limit in pursuit, quite honourably and understandably, of their Hayek-ian purpose of giving every single worker a piece of paper on which everything is recorded every week. I do not believe that will make for efficiency.

If the Government wish to say that it is an extra burden on business, I should have thought that it was obvious. If they want to say that it will drive business out of Britain, I should have thought that that was likely. But I do not understand why the Government's obstinate opposition to collective agreements has put them into this curious stance. This is a matter at which the House should look again on Report. Does the noble Baroness wish to intervene?

Baroness Seear

Does the noble Baroness accept what the noble Lord has just said, that it might lead to 10,000 papers being issued every week? If so, she cannot really mean that it is necessary to do that. Either the noble Lord, Lord Wedderburn, has got it wrong and there would not be 10,000 papers—which I must say I think is doubtful—or the Government have simply not appreciated the management consequences of what they are laying down.

Baroness Denton of Wakefield

I point out to the noble Baroness, Lady Seear, that we believe that the noble Lord, Lord Wedderburn, is putting forward a proposal which is not our belief. However, we will look closely at Hansard on the matter.

Lord McCarthy

Might it not be the case that the reason why the Government do not mind is that there is no sanction? If the employer does not do it, it will not matter.

Lord Wedderburn of Charlton

My noble friend raises a whole further point. One must have an effective sanction for the implementation of the directive. The Government might look at that matter, which will come up later. I saw perhaps a glimmer of light, and therefore it is not wholly in sadness that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 173 to 180 not moved.]

12.15 a.m.

Lord Wedderburn of Charlton moved Amendment No. 181: Page 72, line 6, leave out ("and") and insert ("or (iii) the employer, being a company, changes its status by becoming a subsidiary of a new holding company within the meaning of section 736 of the Companies Act 1985, and, ").

The noble Lord said: Where an employee finds that the name of his company or employer changes, he must be told about it (although not much else). That has been so in our law for a long time. The amendment suggests that where the employer, being a company, becomes a subsidiary—that is, when the company changes its whole economic position even if it has the same name—the employee ought to be told about that. I beg to move.

Baroness Gardner of Parkes

Industrial tribunals devote a great deal of time to determining who is the relevant person in cases. It would be a great help if the employee knew who was his employer.

Baroness Denton of Wakefield

I fully agree with the noble Lord that a change of the type which he described will often he a matter of legitimate interest to the employees of the company and it would be good practice for the employer to keep him informed of it. The Government are firmly committed to the principle that employers should inform employees of matters of interest to them. But, where a change of the type described by the noble Lord is accompanied by changes in the terms and conditions in which an employee is required to be given particulars in his or her written statement, then the provision in the Bill already places the employer under an obligation to give the employee individual notification of those changes. The noble Lord's amendment would extend that obligation to cover a type of change which has nothing to do with the information in the written statement that there must be a limit to the statutory burdens which employers can reasonably expect to accept. We feel that this amendment would overstep that mark, and we hope that it will not be moved.

Lord Wedderburn of Charlton

I share the view of the noble Baroness, Lady Gardner of Parkes. There is very often a practical problem of discovering who exactly is the employer. That leads workers to ask: what is happening? To tell them, as the noble Baroness does, speaking for the Government, that they can be told if the company changes its name but that, should the company become a subsidiary of Hoover or Mitsubishi, that is something one ought to keep quiet about and not tell them anything seems rather extraordinary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 182: Page 72, line 15, at end insert:

("References to collective agreements

(4A) Where a statement under section 1, 2 or 4, or a note under section 3, contains particulars of, or refers to, one or more collective agreements, the employer shall specify which provisions (if any) in any such collective agreement which it is his intention not to incorporate into the contract of employment as minimum terms and conditions of the employment.").

The noble Lord said: It is the principle of our law that the individual contract of employment governs the question whether the terms of a collective agreement are expressly or implicitly incorporated into it. That is not such a bad principle. But recent decisions in the High Court have raised another point: the question, for example, of whether, as in the case of Alexander v. Standard Telephones, a redundancy procedure was incorporated into individual employment contracts of workers at Standard Telephones.

It seemed at first that they did. The written particulars referred to the main conditions of the employment and referred to the redundancy procedure which had been collectively negotiated. I hope: that here the Government will move away from their prejudice against collective agreements. It is a matter of great importance for hundreds of thousands of workers.

It was put to the court by the employer that this might look as though it was incorporated but it was a procedure which in the judgment was: not apt for incorporation into individual employment contracts". The amendment simply says that such an argument should not be left until the matter comes up in court. It affects tens of thousands of workers with uncertainty, although it is true that a more recent judgment went the other way. But there is a hairline on each side of the boundary.

Where there is a reference to the incorporation of a collective agreement, the employer should say which parts of it, if any, it is not his intention to agree for incorporation in the contract of employment as minimum terms and conditions. I beg to move.

Baroness Denton of Wakefield

The principal purpose of the provisions in Schedule 4 to the Bill, and indeed of those in the existing Sections 1 to 6 to the 1978 Act, is to ensure that, subject to the qualifying criteria, employees are entitled to receive a clear, helpful statement of their main terms and conditions of employment, and proper notification of any changes to those terms and conditions. It would not, in my view, be at all helpful for an employee to be presented with a statement containing a list of provisions which the employer does not intend to form part of the contract of employment.

Unlike the current provisions of the 1978 Act, the Bill requires that most of the main terms and conditions of employment—including particularly those relating to such key terms as pay, hours and holiday entitlement—must be detailed explicitly in the employee's written statement, rather than by reference to another document. This applies whether the matters in question have been determined on an individual basis or as part of a collective agreement.

For details of a few exceptional matters, the employer will still be permitted to refer the employee to the provisions of a collective agreement if that would be more convenient than giving the information explicitly. This is because the matters in question—pensions, sickness provision, notice entitlement and certain aspects of disciplinary and grievance procedures—may in general involve lengthy and complicated particulars, and in those cases it would be helpful neither to the employer nor to the employee if they had to be included explicitly in the statement. It will not however be sufficient for the employer in these cases simply to give the title of a collective agreement which covers a whole range of different issues. He will have to direct the employee's attention to the specific provisions of the agreement which set out the relevant particulars.

If there are any collective agreements which directly affect the employee's terms and conditions, it is only right that the employee should be entitled to be told what they are. That is what the Bill provides for in new Section 1(3) (j) of the 1978 Act. However, it would not in the Government's view be right to go further by requiring the employer to specify which particular provisions of those agreements are or are not intended to be incorporated into the employee's contract of employment, save of course to the extent that it is necessary to comply with the other requirements of the new Section 1, to which I have just referred.

The noble Lord will not be surprised that I cannot accept his amendment, which seeks to add to the length and complexity of the written statement.

Lord Wedderburn of Charlton

The Government appear to have got themselves into a frightful muddle. The present schedule to which the noble Baroness referred—namely, the new Section 1(3)(j)—states that the statement shall contain particulars of: any collective agreements which directly affect the terms and conditions of the employment". I took that to mean especially matters that are not otherwise in the list A to L. The noble Baroness seemed to say that employers would be prohibited from referring to collective agreements except (I hope that I quote her correctly) on a few matters—pensions, sickness and so on —when suddenly the benefits of collective agreements seem to appear because they were rather complicated.

This has been unearthed from beneath the stones of the schedule and is of importance to every employee and member of management in the land—a remarkable situation. It will produce an ocean of paper. If the noble Baroness is right in saying that the employer must refer to specific parts of the collective agreement on the various matters—which I believe is what she said—it would not cause any difficulty to say at the same time whether or not in the intention of the employer and his understanding that was part of the individual contract. It is quite absurd to say that the employer must refer to specific parts for one purpose and then to deny that this crucial point should be left aside for, as some might say, the lawyers to deal with.

I have no alternative but to beg leave to withdraw the amendment, but I do so most reluctantly.

Amendment, by leave, withdrawn.

[Amendments No. 183 to 186 not moved.]

Schedule 4 agreed to.

Clause 26 agreed to.

Viscount Ullswater moved Amendment No. 186A: After Clause 26, insert the following new clause:

Dismissal on ground of assertion of statutory right

(".—(1) After section 60 of the 1978 Act (as substituted by section 23 of this Act), there shall be inserted—

"Dismissal on grounds of assertion of statutory right.

60A.—(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

  1. (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or
  2. (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) Subsection (1) does not apply to a dismissal of an employee by reason of any allegation made by him if the allegation was false and not made in good faith.

(3) It shall be sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right was that he was alleging had been infringed.

(4) The following statutory rights are relevant for the purposes of this section, namely—

  1. (a) any right conferred by—
    1. (i) this Act, or
    2. (ii) the Wages Act 1986,
    for which the remedy for its infringement is by way of a complaint or reference to an industrial tribunal;
  2. (b) the right conferred by section 49 (minimum notice);
  3. (c) the rights conferred by the following provisions of the Trade Union and Labour Relations (Consolidation) Act 1992, namely, sections 68, 86, 146, 168, 169 and 170 (deductions from pay, union activities and time off)."

(2) In section 59 of the 1978 Act (dismissal on ground of redundancy), in subsection (2) (inserted by section 23(2) of this Act), after the word "(e)" there shall be inserted the words "or 60A(1)".

(3) In section 64 of the 1978 Act (qualifying period for right not to be unfairly dismissed), in subsection (4) (inserted by section 23(3) of this Act), after the word "(e)" there shall be inserted the words "or 60A(1)".").

The noble Viscount said: In moving Amendment No. 186A I should like to speak also to the related consequential Amendments Nos. 190A and 190B and also Amendment No. 271A. They fulfil a commitment which my honourable friend the Minister of State gave in Committee in another place. He said that the Government would bring forward a measure to give employees, regardless of their length of service or hours of work, protection against being unfairly dismissed for seeking to enforce their right to a written statement of main terms and conditions of employment. He also said that he would consider the extent to which similar protection might be extended to employees seeking to enforce other statutory employment rights.

We have now completed our consideration of that matter and have concluded that the new provision should in fact apply in respect of all statutory employment protection rights. That is what the government amendments are designed to achieve. The rights in question are all those which are conferred by either the Employment Protection (Consolidation) Act 1978 or the Wages Act 1986 and for which the remedy for infringement is by way of a complaint or a reference to an industrial tribunal—the right to a minimum period of notice and all the rights which an employee may exercise against an employer under the Trade Union and Labour Relations (Consolidation) Act 1992.

The protection will apply when the employee's dismissal was on the grounds that he had brought proceedings against the employer to enforce one of those rights, and also where it was on the grounds that he had simply alleged that the employer had infringed the right in question. It will not be necessary for the employee, in making such an allegation, actually to have made detailed reference to the statutory right to which it related. But he or she will need to have made reasonably clear to the employer what that right was. The employee will enjoy the new protection in all cases where his or her allegation of breach of statutory right was in good faith. Only where the allegation was both ill-founded and not made in good faith will the new protection not apply—an entirely reasonable exception.

Dismissal of an employee for seeking in good faith to enforce his or her statutory employment protection rights is wholly unjustifiable. I am sure that few employers would ever contemplate acting in such a manner. However, the Government's amendments making all such dismissals automatically unfair will provide comprehensive new protection against any misguided employer who may act in that way. I am sure that they will be widely welcomed. I beg to move.

On Question, amendment agreed to.

Schedule 5 [Employment protection in health and safety cases]:

[Amendment No. 187 not moved.]

12.30 a.m.

Lord Wedderburn of Charlton moved Amendment No.188: Page 73, line 27, at end insert: ("() An employee has the right not to be subjected to any detriment by any order or instruction by the employer which requires him to act in a manner inconsistent with paragraphs (a) to (e) of subsection (1).").

The noble Lord said: I submit that the Bill is defective in respect of the implementation of the directive and also leaves a gap which in any case is undesirable. Directive No. 89/391 provides that: The employer shall … save in exceptional cases for reasons duly substantiated, refrain from asking workers to resume work in a working situation where there is still a serious and imminent danger".

The Bill as it stands protects the workers from such action by the employer where it amounts to disciplinary action or dismissal. I appreciate that that is a summary of the schedule but perhaps it is common ground. But where the employer gives an instruction that requires the worker to act in a way that is inconsistent with that paragraph—and the amendment covers that and other aspects of the dangerous situation at the workplace—the Bill appears to have a small gap. It is the intent of this amendment and those associated with it in the grouping list to prod the Government to have another look to see whether or not something like this should be included in a situation where the employee is instructed to go to a place of work and there is still imminent danger that by itself that instruction will be a detriment within the meaning of the structure that the Government have elaborated to implement the directive.

In the debates of 1989 the Government said that the common law was enough. Now they have seen that it is not enough, they have had to implement the directive with a lot of statutory law, and quite rightly so. It is splendid that the Government have done that. But the statutory law still has a gap which the common law will not fill. I beg to move.

Viscount Ullswater

Whilst I have no quarrel with what I understand to be the underlying intention, I hope to convince the noble Lord that the amendments are unnecessary. The key amendment is Amendment No. 188 which seeks to ensure that if an employer instructs an employee to act in a mariner which is inconsistent with the provisions of new Section 22A(1), the employee will be protected from being subjected to any detriment if he refuses to follow that instruction. Amendment No. 189 is a consequential amendment which provides that in the event of a complaint to an industrial tribunal it will be for the employer to demonstrate the grounds on which any order or instruction has been given.

Whilst Amendment No. 188 is not inconsistent with the intentions of the new provisions, Section 22A already achieves the desired effect. The amendment tabled would have effect at the point at which an employer subjected an employee to a detriment for refusing to follow an instruction to act in a way which was inconsistent with the provisions of Section 22A(1). But if the employer subjected an employee to a detriment for this reason, the employee would enjoy the protection of the right conferred by this new section. It may be helpful if I give an example. Let us suppose that an employer instructed an employee not to leave his workplace when the employee reasonably believed that there was serious or imminent danger. Nonetheless, the employee leaves the workplace. As a result, the employer subjects that individual to a detriment, perhaps by withdrawing, customary overtime from that employee and not others. The employee may make a complaint because the detrimental treatment arises in circumstances specified by the new section. Further, we have provided at new Section 22B(2) that it is for the employer to show the ground on which any act or failure to act was done. No amendment is needed to secure this result. I hope that in the light of this assurance the noble Lord will agree to withdraw his amendment.

Lord Wedderburn of Charlton

I follow the noble Lord's argument and share a lot of it, but he did not point to the precise part of Section 22A that protected the employee from detriment arising from the instruction itself and breached any part of the obligations of the employer in this respect. I was disappointed that he referred only to the paragraph which said that the employer must establish the reason. That is correct, but he did not show me where every type of instruction from the employer would be covered. If he has references to such matters perhaps it will further the matter if I ask him to write to me about it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 189 and 190 not moved.]

Viscount Ullswater moved Amendments Nos. 190A and 190B: Page 75, line 45, leave out ("or"). Page 75, line 49, leave out ("or").

On Question, amendments agreed to.

[Amendments Nos. 191 and 192 not moved.]

Schedule 5, as amended, agreed to.

Clause 27 [Compensation for unfair dismissal when reinstatement or re-engagement ordered]:

[Amendment No.192A not moved.]

Clause 27 agreed to.

Viscount Ullswater moved Amendment No. 192B: After Clause 27, insert the following new clause:

Application of 1978 Act to service in armed forces

(".—(1) In section 138 of the 1978 Act (application of Act to Crown employment) for subsection (3) (service in the armed forces excepted) there shall be substituted— (3) This section applies to service as a member of the naval, military or air forces of the Crown but only in accordance with section 138A and it applies also to employment by any association established for the purposes of Part VI of the Reserve Forces Act 1980. (2) After section 138, there shall be inserted—

"Application of Act to armed forces.

138A.—(1) The provisions of this Act which apply, by virtue of section 138, to service as a member of the naval, military or air forces of the Crown are— Part I; in Part II, sections 19 to 22 and 31A; Part III; in Part IV, section 53; Part V, except sections 57A and 80; Part VIII; and this Part.

(2) Her Majesty may, by Order in Council, —

  1. (a) amend subsection (1) above by making additions to, or omissions from, the provisions for the time being specified in that subsection, by an Order under this subsection; and
  2. (b) make any provision apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the Order.

(3) Subject to subsection (5) below, modifications made under subsection (2) above may include provision precluding the making of a complaint or reference to any industrial tribunal unless the person aggrieved has availed himself of the service procedures for the redress of complaints applicable to him.

(4) Where modifications include the provision authorised by subsection (3) above the Order in Council shall also include provision designed to secure that the service procedures for the redress of complaints result in a determination, or what is to be treated under the Order as a determination, in sufficient time to enable a complaint or reference to be made to an industrial tribunal.

(5) No provision shall be made by virtue of subsection (3) above which has the effect of substituting, for any period specified as the normal period for a complaint or reference on any matter to an industrial tribunal, a period longer than six months.

(6) No recommendation shall be made to Her Majesty to make an Order in Council under subsection (2) above unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament.

(7) In this section—

The noble Viscount said: I am sure that Members of the Committee will join me in welcoming this amendment which seeks to apply certain individual employment rights to service as a member of the naval, military or air forces of the Crown.

At present, those rights which apply to persons in Crown employment by virtue of Section 138(1) of the Employment Protection (Consolidation) Act 1978 do not, under Section 138(3) of that Act, apply to service in the Armed Forces. This clause reverses that position. It applies to the Armed Forces certain provisions of the 1978 Act—generally those which already apply to Crown servants, or will do so under other provisions of the Bill. This is subject to the provision that an Order in Council may be made adapting the provisions more suitably to meet the needs of the services.

The Armed Forces are in a special position with regard to their employment, as I am sure we can all recognise. This is why they have not up to now been covered by employment protection rights that have applied to other employees. However, we believe there is no necessity to deny the Armed Forces all access to industrial tribunals, as has been the case in the past.

The powers in the new clause will enable certain modifications to be made in applying these rights to the Armed Forces to take account of their special circumstances. In particular, it will be necessary to ensure that internal complaint procedures have been exhausted so that the industrial tribunal system is not called into play unnecessarily. These matters will be considered by my right honourable friend the Secretary of State for Defence in formulating the terms of the new order.

It gives me great pleasure to bring forward this amendment. It is an importance provision for the Armed Forces, and I ask for the Committee's support in accepting it. I beg to move.

Lord McCarthy

We are pleased to see the new clause where it is. We cannot see anything wrong with it at the moment but we shall take it away and look at it very carefully.

On Question, amendment agreed to.

[Amendments Nos. 193 and 194 not moved.]

Clause 28 [Right to declaration of invalidity of discriminatory terms and rules]:

[Amendments Nos. 195 to 202 not moved.]

Clause 28 agreed to.

[Amendments Nos. 203 and 203A not moved.]

Viscount Long

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty minutes before one o' clock.