Sunday Trading Bill

HL Deb 18 April 1994 vol 554 cc9-19

3.2 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 4 [Rights of shop workers as respects Sunday working]:

Clause 4 agreed to.

Schedule 4 [Rights of shop workers as respects Sunday working]:

[Amendment No. 29 not moved.]

Earl Ferrers moved Amendment No. 29A: Page 12, line 50, after ("etc.)") insert ("or under regulations made under paragraph 20 of that Schedule (reinstatement or re-engagement of dismissed employee)").

The noble Earl said: This is a technical amendment which I have tabled to close an unintentional small gap in the employment provisions in Schedule 4.

The Government are committed to ensuring that the rights which are provided in this schedule are watertight. That is why we have made provision that an employee, in order to be a "protected shopworker", shall be deemed to have satisfied the requirement that he was employed on the day before commencement of the Act as a shopworker if his contract of employment had, on that day, ceased, but that that day counts as a period of employment with the employer under' paragraph 9 or 10 of Schedule 13 to the Employment Protection (Consolidation) Act 1978.

This would include circumstances such as where the employee's contract had ceased because of sickness, injury, temporary cessation of work, pregnancy or childbirth, or in any other circumstances which, by arrangement or custom, the employee is regarded as continuing in employment with the employer.

Therefore, when the Union of Shop, Distributive and Allied Workers brought to the Government's attention another group of shopworkers who may also inadvertently not have "protected status", we immediately confirmed that we would consider the matter carefully and would table an appropriate amendment if necessary. This is what we have done. I beg to move.

On Question, amendment agreed to.

Baroness Turner of Camden moved Amendment No. 30: Page 14, line 15, leave out ("three months') and insert ("one month").

The noble Baroness said: As we know, it is accepted on all sides that Sunday working must be a voluntary matter. It is further accepted by everyone—or almost everyone, I believe—that there is something special about Sunday—whether the reasons are religious or traditional. Sunday is the day when, generally speaking, people want to rest and to participate in leisure activities and now, as a result of the Bill, they will increasingly be able to shop—not just for items from the corner shop which they forgot to purchase earlier, but for large items such as clothing and furniture. The move has been presented by many of your Lordships as an increase in leisure opportunities for many people, since shopping can be, and often is, regarded as a leisure activity by families.

However, in order to enjoy the new leisure faciliity, we should take care that we do not do so at the expense of others, notably the employees without whom there could be no Sunday opening at all. The Bill makes it explicit that workers may opt out of working on a Sunday and are entitled to do so without detriment. To quote the Minister in the other place, the Bill removes any room for doubt that workers who opt into Sunday working retain the right to opt out subsequently if they wish to do so. The only limitation to that right would be the requirement to give employers three months' notice.

My amendment seeks to reduce the three months to one month. It is our view, and that of the unions representing shopworkers, that three months is far too long a period. Most employers surely are able to make alternative arrangements in one month. On the other hand, the worker may decide—it is more than likely that the worker will be a she—or feel that she has to opt out because of some domestic crisis which could not have been foreseen three months earlier. I really cannot believe that in the present labour market, when so much part-time labour is available, employers could not make suitable alternative arrangements if they were given one month's notice.

Already, numbers of firms which recognise and negotiate with trade unions have accepted the point and will not insist on the three-month period set out in the Bill. I am advised that Tesco, for example, which has sent me a detailed package of information relating to its employment policy, will not insist on more than one month's notice. Other companies to my knowledge are Kingfisher, Sainsbury, Asda, Boots, Dixons and W. H. Smith. There may well be many others. If that is the case, cannot we persuade the Government and, if not the Minister this afternoon, then the Committee, that the three-month provision in the Bill is far too long in an industry where the vast majority are modestly paid and, in too many instances, poorly paid women, many of whom are part-time workers and most of whom will have domestic responsibilities? I beg to move.

Baroness Jay of Paddington

I should like to second the amendment, which stands in my name also. My noble friend has made it clear that a number of major employers already agree to the provision voluntarily. The problem with the Bill as it now stands is that the occasional rogue employer—not the ones which my noble friend has mentioned, but others—could enforce the regulations in such a way that a worker who wished to opt out could be made to work on every Sunday during the three-month period of notice. Obviously, that is a totally unsatisfactory provision and is presumably not intended.

The other point is that employers may find that a worker gives notice of his or her intention to leave that employment. Employees wishing to leave their employment have to give only one month's notice. It seems a little strange that the law should be drawn more tightly with regard to Sunday working than is the case when workers wish to resign entirely from a post, in which case only one month's notice would be required. I reconfirm what my noble friend has said: employers who are members of the Shopping Hours Reform Council, which, as the Committee knows, I chair, have entered into voluntary agreements with their employees that they will not need to give three months' notice.

Lord Rochester

I am glad to support the amendment for the reasons that have been given by the noble Baronesses, Lady Turner of Camden and Lady Jay. In my view, the period of one month would give a much more reasonable balance between the interests of the employer and those of the employee. For the employer, one month should be more than long enough to enable him to rearrange his staffing rotas. As has been said, the employee may have all sorts of reasons (connected with family responsibilities perhaps) as to why even one month is too long a period. The Minister may say that it would be easy enough for large shops with many employees to manage on the basis of one month's notice but that it could be more difficult for smaller shopkeepers, who might have to recruit and train a new employee to work on a Sunday. I would not find that answer convincing.

As the noble Baroness, Lady Jay, has just said, employees have normally to give just one month's notice if they wish to terminate their employment. Employers seem to manage well enough when that happens, and I cannot see why they should have longer notice when an employee wishes to stop working on Sunday. I hope that the Committee will accept the amendment.

Lord McCarthy

There are two reasons that the amendment is persuasive. First, one has to imagine the situation which would apply if the three-month provision were to continue. People would give notice to their employer that in three months' time they wanted to opt out, and for three months they can be made to work Sundays—every Sunday for three months. What kind of right is that? What kind of pressure is that to put upon workers? The limited rights put in the Bill mean nothing if a worker can only put in an opting-out notice which lasts for three months. If the Committee thinks about that it will realise that that point is unanswerable.

Secondly, the suggestion that the Government made in the other place—Mr. Lloyd made the point—is that it is easy for large firms and difficult for small firms. That does not stand up. What is difficult, if people give notice that they do not want to work on Sundays, is the proportion of the labour force involved. It is not the size; it is the proportion of the labour force. The general argument put forward in this place and the other place is that the majority of workers will want to work Sundays; they are queueing up to work Sundays. If that is the case, it applies to large and small firms. Therefore it is no more difficult for small firms than for large firms. Most importantly, if one insists on three months' notice, then the right is not worth anything at all.

Lord Stoddart of Swindon

I should like to make just one brief point, because I noted what my noble friend said about Tesco, Kingfisher and other large firms. It is altogether good that they should have given the assurance that they will reach an agreement and will not hold employees to three months' notice. But, as my noble friend pointed out, there are employers, other than those employers, who may not wish to reduce the period from three months to one month. The Committee has to consider all employees in the retail industry and not just employees in a few firms.

Furthermore, trading conditions change and it may well be that even Tesco and Kingfisher might feel that they would have to resile from an agreement they reached at any given time. People need protection. Three months, as has been pointed out, is the devil of a long time at work. It is a quarter of a year. Let us make no mistake about that. The only sure way of protecting employees throughout the retail industry is to agree to the modest amendment moved by my noble friend.

Lord Campbell of Alloway

I have listened with attention to everything that has been said in support of the amendment. The noble Lord, Lord McCarthy, referred to the imponderable; that is, the number of people who do or do not wish to work on Sunday. We do not yet know that. The noble Lord, Lord Stoddart, referred to changing conditions—another imponderable. It is a question of balance. We are looking forward to a situation in which there can be no finite certainty of demand or supply. I should have thought that the reasonable balance is about three months, perhaps two months, but certainly not one month.

3.15 p.m.

Earl Ferrers

Quite a lot has been said not just this afternoon but in another place about what period of notice is correct for those who wish to withdraw from a contractual obligation to work on Sundays to give in order to benefit from the rights provided in Schedule 4. The amendment, as the Committee has been told, reduces the period from three months to one month. The noble Lord, Lord Rochester, said that he could not understand why the Government could not accept a simple amendment like that, and I shall try to explain to him.

The Committee might find it helpful if I were to start by setting out the circumstances in which the notice period will apply and if I were then to outline the reasons why the Government believe that three months represents the correct statutory requirement.

Schedule 4 distinguishes between a "protected shopworker" and an "opted-out shopworker". All shopworkers in England and Wales who are employed at the time when the Bill becomes law—regardless of their length of service or how many hours they are supposed to work per week—will be "protected shopworkers", and they will be protected against dismissal or against any other detrimental action if they refuse to work on Sundays. "Protected shopworkers" will acquire those rights on the day when the Bill comes into force, even if they have previously agreed to work on Sundays. They will not have to serve any notice period in order to benefit from those new rights. They can quite simply decide that they do not wish to work on Sundays and that will be the end of the matter. Provided that the individual continues in his or her employment as a shopworker with the same employer, he or she will continue to enjoy the protections indefinitely.

The position is different for those who take up employment in or about a shop after the Bill becomes law and who, in doing so, agree to a contractual requirement to work on Sundays. They, too, will have the right to opt out of Sunday working if they wish to at a later date but, unlike those who are employed when the Bill comes into force, they will be subject to a three-month notice period. The Committee will be well aware that the provision of a right to opt out represents a radical departure from the normal contractual position under which the terms of a contract, once agreed, are binding on both parties. This is a great change from that. Indeed the Committee will perhaps not be surprised that a number of employers have expressed serious reservations about the effect of allowing one party to an employment contract unilaterally to withdraw from its terms.

Nevertheless, the Government think that no shopworker should be required to work on Sundays against his or her will. In order to secure this, Schedule 4 offers shop workers a unique right to withdraw from a contractual obligation to work on Sunday. However, in adopting that approach it is essential that proper account should be taken of the operational needs of the employer and that any right to opt out should be subject to safeguards to prevent abuse. That is the purpose of the notice period. In setting a notice period for opting out of Sunday working, the Government are trying to reconcile two different interests: the legitimate interests of employees, on the one hand, and employers on the other hand. The Government think that a three-month notice period achieves the right balance.

The retail industry is diverse. It includes retailers who have multiple outlets and some whose turnover is in excess of £500 million per annum, as well as the individual who has just a single outlet with a turnover of less than £100,000 per annum. So there is a wide. spectrum. What is possible in one outlet may be quite unmanageable in another. For example, a large supermarket, which employs hundreds of workers, may be able to cope with some of its employees opting out of Sunday working simply by seeking extra volunteers from within its existing workforce. A small newsagent, on the other hand, with only one or two employees may have great difficulty in continuing to trade if his entire complement of staff were able to opt out of Sunday working at one month's notice.

Equally, a store may have a large number of employees overall, but only a handful in certain key posts. If one or two managerial or supervisory staff were to opt out of Sunday work at short notice, this could understandably create greater problems than would arise if, for example, a checkout operator or a shelf filler were to opt out of Sunday working. In these circumstances, there is likely to be a much smaller pool of workers from which a replacement can be found.

Similar considerations apply to those shops whose sales staff are required to have specialist knowledge. Staff at electrical goods shops, for example, may be expected to advise and to show some expertise about the products which they are selling. Such skills are not acquired overnight and employers will need adequate time to arrange suitable replacements.

I hope that the Committee will agree that it is the responsibility of the Government and Parliament to take into account the needs of all retailers; that is, large and small, generalist or specialist. One month is too short to meet the business needs of the retail industry as a whole. Three months is a period which the retail industry as a whole would find practicable.

By providing for a three months' notice period we shall be giving employers adequate time to make alternative arrangements while at the same time allowing employees, in this one exceptional case of Sunday shop work, to be released from a contractual obligation within a reasonable period.

The noble Baroness, Lady Turner, called in aid those employers who supported a one-month notice period. The implication was that the Government were being unnecessarily intransigent. It is true that the Shopping Hours Reform Council has expressed support for a right to opt out subject to a notice period of only one month. The SHRC is not, and does not claim to be, representative of the retail sector as a whole. It represents some—although by no means all—large retailers, particularly those specialising in the sale of food and DIY goods. It does not represent those sectors such as clothing, horticulture, department stores or small stores.

It may be practicable for some retailers to offer their staff the opportunity to withdraw from Sunday shopwork after one month rather than three. That is a matter for them and they will be able to do so. There is nothing in Schedule 4 which will prevent that. As the Shopping Hours Reform Council and the Union of Shop Distributive and Allied Workers have demonstrated, the schedule does not prevent employers and employees from negotiating shorter notice periods if in the circumstances they desire it.

However, we have received many representations from other retailers who expressed serious reservations about the right to opt out even subject to a three-month notice period and who believe that it will present serious operational difficulties. I do not think that it would be right to dismiss their anxieties and to impose a statutory requirement of only one month simply on the grounds that it would not present a problem for a certain group of retailers.

Schedule 4 provides a unique opportunity for an employee unilaterally to opt out of a contractual agreement—an agreement to work on Sundays. Let us be clear that it is a unique opportunity to break a contract. I fancy that we are all agreed that such a unique opportunity should not be abused. After all, a contractual agreement is a serious matter and it should not be entered into lightly.

In offering this unique right to shopworkers, the Government are concerned not to encourage the kind of situation where employees can take a job which involved Sunday working when they had no real intention of carrying out their side of the bargain. A three-month notice period would deter job applicants from taking a post under false pretences. An employee who agrees to work on Sundays would be required to honour the contract during the three-month notice period and he or she could be lawfully dismissed if he or she failed to do so. I suggest that that is fair and reasonable. This should provide some disincentive to a person who said that he would work on Sunday in order to get the job but who had no intention of doing so and who could opt out of the obligation into which he had freely entered virtually the next day. A reduction of the notice period to one month would not achieve the same purpose.

For those reasons, I do not accept that a reduction in the notice period to one month, as proposed in this amendment, is either practical or desirable and I hope that the Committee will not agree to it.

Baroness Jay of Paddington

Before the Minister sits down, will he kind enough to answer the question that I put? Why is it more difficult for the specialist employers to whom he referred—the people who are not bound by any voluntary agreement, which may be represented by some of the employers on the Shopping Hours Reform Council such as the specialist employers in the music business—to be able to replace shopworkers who opt out of Sunday working than those who may resign, giving one month's notice, as is customary?

Earl Ferrers

The situation is simple; we are entering into a unique period. People will have the right to contract out or to break a contract into which they have freely entered. We suggest that, if they have freely entered into what will be a new period of time, there ought to be a three-month period in order to enable employers to make alternative arrangements.

The noble Lord the Opposition Chief Whip laughs. I do not think that this is a funny matter. If employers suddenly discover that people upon whom they have relied will not be available for work because, having agreed to do something they suddenly decide to change their mind, I do not believe that that is right or fair. It is reasonable to give a reasonable period, otherwise there is no point in their entering into a contract in the first place.

Baroness Turner of Camden

The Committee will not be surprised to hear that I do not accept what the Minister said in response to the amendment. I say to the noble Lord, Lord Campbell of Alloway, that it is a question of balance. However, if the legislation provides for three months, the balance is tilted very much in favour of the employer and away from the employee. That runs counter to the idea that Sunday working should be voluntary.

The Minister explained the difference between protected and opted-out shopworkers. I do not see that that is a reason for a difference. Of course this is a radical departure, but the whole Bill is a radical departure. The whole legislation is radical, not only the provisions made in regard to opting out, the protection of workers and so forth. Therefore, it is legitimate that in such circumstances the people who must perform the services in order successfully to make this radical departure from the normal situation should have appropriate protection. This right to opt out is an important part of this protection.

I do not know what the Minister was referring to when on several occasions he spoke of abuse. He said that it was necessary to prevent abuse. Can it be abuse if a woman says, "Look, I cannot work on Sunday any more because I have family problems—I have illness at home. I will give one month's notice but three months will he impossible"? She might have to resign her job or have time off rather than simply opt out. It is to the advantage not only of the employee but of the employer because they will wish to keep in employment people who are good at the job. The provision may inhibit people from remaining and doing a job of work.

Furthermore, we need to protect vulnerable people. The Minister referred to small firms as though they will have greater difficulty in finding people to undertake Sunday work within one month. I do not believe, in particular in the current labour situation, that that is a real reason for refusing to accept the amendment. It so happens that, generally speaking, in small firms the workers tend to be more vulnerable than in large firms where there is union organisation, personnel departments and so forth.

None of the reasons advanced by the Minister in opposing the amendment holds water. If we mean that whether people work on Sunday is voluntary we must pass this amendment. If we do not, we shall be unfair to many poorly paid and mostly female workers.

Earl Ferrers

Perhaps I may intervene briefly before the noble Baroness finally decides whether to put her amendment to the test. In our discussions on the Bill we have heard a great deal about how bad it will be because many people who do not want to work on Sundays will have to do so.

When the Bill becomes law, people working on Sundays will do so in the full knowledge that they must do that work for three months. Therefore, they will concern themselves as to whether they wish to do so. An employer who wishes to open his business must take those considerations into account. Is it unreasonable to say that if a contractual obligation is taken on for three months, it should be adhered to? Does the noble Baroness not admit that a person who wants a job may agree to work on Sundays and then the next day say that he has changed his mind? If the amendment is accepted, that person will then not be obliged to work on Sundays, and that will place the employer in an impossible position.

Baroness Turner of Camden

I am sorry. I still do not accept what the Minister said. It seems to me that written into the Bill is provision for contracts to be altered. We believe that is perfectly all right. It enables people to regard Sunday working as an entirely voluntary matter. I cannot see why the provision of one month rather than three months will act to the detriment of employers.

I believe that it is perfectly fair because people may not always know what their domestic responsibilities will be. To expect them to know three months in advance seems to me to be grossly unreasonable. I feel that unless we take this out of the Bill, the protection which it seeks to afford workers will be faulty and will not be as effective as we should wish it to be. I commend the amendment to the Committee.

3.31 p.m.

On Question, Whether the said amendment (No. 30) shall be agreed to?

Their Lordships divided: Contents, 95; Not-Contents, 129.

Division No.1
CONTENTS
Archer of Sandwell, L.	Lloyd-George of Dwyfor, E.
Attlee, E.	Lockwood, B.
Avebury, L.	Longford, E.
Aylestone, L.	Lovell-Davis, L.
Beaumont of Whitley, L.	Mackie of Benshie, L.
Bonham-Carter, L.	Mallalieu, B.
Boston of Faversham, L.	Mason of Barnsley, L.
Bottomley, L.	McCarthy, L.
Brentford, V.	Milner of Leeds, L.
Bruce of Donington, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Morris of Castle Morris, L.
Cledwyn of Penrhos, L.	Murray of Epping Forest, L.
Clinton-Davis, L.	Nicol, B.
Cocks of Hartcliffe, L.	O'Cathain, B.
Darcy (de Knayth), B.	Ogmore, L.
David, B.	Oxford, Bp.
Dean of Beswick, L.	Peston, L.
Donaldson of Kingsbridge, L.	Plant of Highfield, L.
Dormand of Easington, L.	Ponsonby of Shulbrede, L.
Eatwell, L.	Richard, L.
Ewing of Kirkford, L.	Robson of Kiddington, B.
Ezra, L.	Rochester, L.[Teller.]
Fitt, L.	Sainsbury, L.
Gallacher, L.	Scanlon, L.
Gladwyn, L.	Sefton of Garston, L.
Gould of Potternewton, B.	Serota, B.
Graham of Edmonton, L.	Shannon, E.
[Teller.]	Shepherd, L.
Grey, E.	St. Albans, Bp
Hanworth, V.	Stallard, L.
Harris of Greenwich, L.	Stedman, B.
Haskel, L.	Stoddart of Swindon, L.
Hilton of Eggardon, B.	Strabolgi, L.
Hollis of Heigham, B.	Taylor of Blackburn, L.
Hooson, L.	Taylor of Gryfe, L.
Howell, L.	Thurlow, L.
Howie of Troon, L.	Tonypandy, V.
Jacques, L.	Tordoff, L.
Jay of Paddington, B.	Turner of Camden, B.
Jay, L.	Wallace of Coslany, L.
Jenkins of Hillhead, L.	Walpole, L.
Jenkins of Putney, L.	Waverley, V.
Kennet, L.	White, B.
Kilbracken, L.	Wigoder, L.
Kinloss, Ly.	Wilberforce, L.
Lawrence, L.	Williams of Crosby, B.
Listowel, E.	Williams of Elvel, L.
Llewelyn-Davies of Hastoe, B.	Williams of Mostyn, L.
NOT-CONTENTS
Aberdare, L.	Burnham, L.
Addison, V.	Butterworth, L.
Alexander of Tunis, E.	Cadman, L.
Annaly, L.	Campbell of Alloway, L
Archer of Weston-Super-Mare, L.	Carnock, L.
Astor, V.	Chalfont, L.
Belhaven and Stenton, L.	Chalker of Wallasey, B.
Beloff, L.	Chelmsford, V.
Birdwood, L.	Clanwilliam, E.
Blatch, B.	Clinton, L.
Blyth, L.	Clitheroe, L.
Boardman, L.	Cockfield, L.
Borthwick, L.	Colnbrook, L.
Boyd-Carpenter, L.	Constantine of Stanmore, L.
Brabazon of Tara, L.	Courtown, E.
Brougham and Vaux, L.	Craigavon, V.

Cranborne, V.	Miller of Hendon, B.
Cranbrook, E.	Milverton, L.
Crathorne, L.	Morris, L.
Cross, V.	Mountevans, L.
Cullen of Ashbourne, L.	Munster, E.
Cumberlege, B.	Mutton of Lindisfarne, L.
Dacre of Glanton, L.	Nelson, E.
Davidson, V.	Newall, L.
De Freyne, L.	Norfolk, D.
Dean of Harptree, L.	O'Brien of Lothbury, L.
Denton of Wakefield, B.	Onslow, E.
Dixon-Smith, L.	Orr-Ewing, L.
Dundonald, E.	Park of Monmouth, B.
Effingham, E.	Peel, E.
Elles, B.	Pender, L.
Elton, L.	Polwarth, L.
Ely, M.	Quinton, L.
Erroll of Hale, L.	Rankeillour, L.
Faithfull, B.	Rawlinson of Ewell, L.
Ferrers, E.	Renton, L.
Finsberg, L.	Renwick, L.
Fraser of Carmyllie, L.	Rippon of Hexham, L.
Gainford, L.	Romney, E.
Gardner of Parkes, B.	Saltoun of Abernethy, Ly.
Geddes, L.	Seccombe, B.
Goschen, V.	Selborne, E.
Gridley, L.	Simon of Glaisdale, L.
Harmar-Nicholls, L.	Skelmersdale, L.
Harris of High Cross, L.	St. Davids, V.
Hayhoe, L.	Strathclyde, L.
Henley, L.	Strathmore and Kinghorne, E.
HolmPatrick, L.	[Teller.]
Howe, E.	Sudeley, L.
Hunt of Tanworth, L.	Swansea, L.
Hylton-Foster, B.	Swinfen, L.
Ironside, L.	Swinton, E.
Jenkin of Roding, L.	Teviot, L.
Killearn, L.	Thomas of Gwydir, L.
Lauderdale, E.	Torrington, V.
Liverpool, E.	Trefgarne, L.
Long, V.	Trumpington, B.
Lucas, L.	Ullswater, V.[Teller.]
Lyell, L.	Vaux of Harrowden, L.
Mackay of Ardbrecknish, L.	Vivian, L.
Mackay of Clashfern, L.[Lord	Wakeham, L.[Lord Privy Seal.]
Chancellor.]	Walton of Detchant, L.
Macleod of Borve, B.	Westbury, L.
Manchester, D.	Whitelaw, V.
Merrivale, L.	Wolfson, L.
Mersey, V.

Resolved in the negative, and amendment disagreed to accordingly.

3.40 p.m.

Lord Annaly

My Lords, I understand that this may be a convenient moment at which to take the Statement. Therefore, I beg to move that the House be now resumed.

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

House resumed.